JUDGMENT : Vinod Chatterji Koul, J. 1. Appellant has filed this Appeal against the judgment of acquittal dated 28th May 2011 passed by Principal Sessions Judge, Srinagar (for short “Trial Court”) in case FIR no.62/2008 registered in police station Shergarhi (Srinagar) for offence punishable under Section 8/20 NDPS Act titled as State v. Rafiq Ahmad Dar and for setting aside the same. 2. Impugned judgment is being challenged by appellant on following grounds: (a) that judgment impugned is against facts and circumstances of the case; (b) that prosecution evidence has not been appreciated by the Trial Court in its right perspective as the evidence and material produced by prosecution has proved the guilt of accused beyond any shadow of doubt and there was no other alternative left to the Trial Court but to record conviction of accused, but instead the accused has been acquitted of heinous offence under Section 8/20 NDPS Act, which offence is against the whole society; (c) that there is no occasion for the Trial Court to hold that prosecution has failed to prove the charges against accused. Prosecution witnesses 1 to 4, 11 and 12, being eyewitnesses, have deposed to have recovered Charas from dickey of motorcycle of respondent-accused. They have corroborated to each other. PW no.5, Abul Gani, I/C FSL PCR, Srinagar, who had obtained fingerprints of accused, identified specimen impression on a leaf bearing his signatures. PW6, Scientific Officer, proved his certificate containing opinion that seized substance is Charas. (d) that Executive Magistrate proved his letter marked EXTP VII and identified the seal used for sealing the packet. Shopkeeper also supported seizure memo and identified seized substance. PW9, SDPO, also deposed to have recovered the substance like Charas from dickey of accused’s motorcycle at Naaz Crossing when he rushed there on phone call given to him by SHO Shergari who was heading Naka party. (e) that the then City Munsiff, Srinagar, had also recorded his statement regarding application of I.O. whereupon he recorded statement of Tariq Ahmad under section 164 Cr.P.C. Aijaz Ahmad, SHO, P/S Shergarhi (PW 11) as well as PW12 being eyewitnesses, have proved commission of offence by accused while recording their statements and it would be found by this Court that offence is proved to hilt by statements of SDPO, SHO and SI, Tanveer Ahmad, respectively, who have recovered Charas from possession of accused. (f) That even on cross-examination, offence committed by accused is proved to hilt but the Trial Court has brushed aside evidence produced by prosecution direct as well as circumstantial, which has effect of causing serious miscarriage of justice. (g) that the Trial Court appears to have adopted a technical approach in acquitting accused person when the Supreme Court in State of Punjab v. Jaggir Singh, 1974 (3) SCC 277 , has held that a criminal trial is not like a fairytale where one is free to give light to one’s in imagination and fantasy and that crime is an event in real life and is the product of interplay of different human emotions and in arriving at conclusion about guilt of evidence by yardstick of probabilities. (h) that the Trial Court has wrongly observed that there was any lapse on the part of I.O. and discreet investigation was conducted and procedure provided under law was indeed observed in investigation of the case and at no point of time was there any lapse in dealing with case by investigating agency and standing instructions were also followed by I.O. inasmuch as the sample was drawn from seized substance (Charas) on the spot of recovery in presence of witnesses. There was no occasion nor was there any such circumstance appearing in the case for tampering the sample of recovered substance during transit period. 3. I have heard learned counsel for parties and considered the matter. I have gone through the Trial Court record as also judgment impugned. 4. The case of prosecution-appellant is that on 5th May 2008 at 9:15 AM, respondent/accused riding motorcycle bearing Registration no.JK01F/5557 was intercepted by police at Naaz Crossing and on search Naka checking yielded a bag containing substance resembling Charas, wrapped in corn leaves. SHO police station Shergarhi, according to prosecution, was heading Naka Checking Party, who wrote a docket and invited SDPO Shaheed Gunj to the spot, in whose presence 73 sticks of substance resembling Charas wrapped in corn leaves were seized, which was weighed and found to be of the volume of 5 ½ kgs. The substance was sealed after drawing a sample weighing 100 grams, which was sealed separately. Personal search of accused was also done and case FIR no.62/2008 under Section 8/20 NDPS Act was registered. The substance was sealed after drawing a sample weighing 100 grams, which was sealed separately. Personal search of accused was also done and case FIR no.62/2008 under Section 8/20 NDPS Act was registered. Investigation was entrusted to SHO (PW12), who prepared site plan, seized motorcycle along with documents and got statements of witnesses recorded under section 161 Cr.P.C. and 164-A Cr.P.C. The accused was arrested and opinion was obtained from FSL with respect to sample of seized substance, which was found to be Charas. The investigation revealed that accused smuggled Charas weighing 5 ½ kgs from District Pulwama to Srinagar for illicit trade. Accordingly, charge sheet under Section 8/20 NDPS Act was laid before the Trial Court. 5. The record would reveal that charges under Section 30 NDPS Act were framed against accused, to which he pleaded not guilty and claimed to be tried. Appellant prosecution adduced the witnesses, whereafter respondent/accused was examined under Section 342 Cr.P.C. to enable him to explain the incriminating circumstances emerging from prosecution evidence. The Trial Court while passing impugned judgment has come to the conclusion that evidence on record cannot be relied upon to convict accused and since there was occasion for tampering sample of recovered substance during transit period of three days and no explanation muchless a legally tenable one has been forthcoming in regard to the lapses on the part of I.O. to deposit the sample and remaining substance in safe custody, the prejudice claimed by accused cannot be termed unfounded and accordingly acquitted accused. 6. Learned counsel for appellant submits that the Trial Court has failed to appreciate the evidence in its right perspective and made a wrong observation despite the prosecution having produced the witnesses proving the charges. According to him, contraband was recovered from dickey of motorcycle plied by accused and there was ample evidence to establish that contraband identified as Charas was recovered from conscious possession of accused who was carrying 5 ½ kgs of Charas in dickey of motorcycle when intercepted at Naaz Crossing, Srinagar. According to him, contraband was recovered from dickey of motorcycle plied by accused and there was ample evidence to establish that contraband identified as Charas was recovered from conscious possession of accused who was carrying 5 ½ kgs of Charas in dickey of motorcycle when intercepted at Naaz Crossing, Srinagar. He also avers that there is compliance with the provisions of NDPS Act inasmuch as SHO has not only recorded information but also communicated the same to Dy.S.P. It is also stated by learned counsel for appellant that sample of seized contraband was subjected to chemical examination at FSL Srinagar, which opined that Charas was detected in the sample, thereby linking accused with commission of offence. 7. On the other hand, learned senior counsel appearing for the respondent/accused submits that no failure could be found in the judgment of the Trial court as on the basis of witnesses produced, the accused/ respondent could not be convicted because the witnesses do not prove the charges leveled against him. The prosecution has not complied with the provisions of the Act and the observance of which is mandatory. He vehemently argues that there is no proof on record to substantiate that seized substance was sealed on spot and thereafter deposited in Malkhana and that evidence regarding seizure of contraband, lifting of sample and the same being sealed is shaky and unreliable inasmuch as there is no proof that substance recovered from accused was kept in safe custody/deposited in Malkhana and no certificate from Malkhana has been placed on record and exhibited to establish that seized substance and sample, alleged sealed on spot, were deposited in Malkhana on 5th May 2008 and removed therefrom on 7th May 2008 for getting it resealed before Executive Magistrates. His further submission is that guidelines issued by Narcotic Control Bureau to ensure adopting of fair procedure in search, seizure and sampling have not been observed, which casts serious doubt on fairness of investigation. 8. His further submission is that guidelines issued by Narcotic Control Bureau to ensure adopting of fair procedure in search, seizure and sampling have not been observed, which casts serious doubt on fairness of investigation. 8. To appreciate the grounds taken in the appeal and the submissions made by learned counsel for parties, it becomes necessary to give resume of the statements of witnesses produced by prosecution and recorded by the Trial Court hereunder: a) PW1, Constable Mohammad Younis, has stated that he was posted at P/S Shergarh on 5th May 2008 and he was deputed at Naaz Crossing, where he and other police officials were checking vehicles and that accused riding scooter was intercepted. Constable Aijaz Ahmad found a bag lying in dickey of scooter of accused. He informed SHO, who in turn rang up Dy.S.P., who arrived on spot and asked Constable Aijaz to search bag which yielded Charas. A shopkeeper was called no spot who weighed recovered substance found to be 5 ½ kgs and the same was seized, which comprised of 73 sticks, which were rubbed together for drawing a sample. Motor cycle was seized, I-Card of accused was also seized. On cross examination, witness stated that constable Aijaz Ahamd removed bag from dickey of scooter of accused in presence of witnesses and SHO. It was done on directions of Dy.S.P., who had delivered a memo to accused that had been drafted on spot and the same was signed by accused. He heard Dy.S.P. asking accused whether he had any option. The witness disputed the suggestion that SHO had removed bag from dickey of scooter of accused. He had signed documents on spot and seized Charas was weighed after arrival of Dy.S.P. on spot and witness denied that he had been deputed to police station along with a docket. Perhaps constable Gulzar Ahmad had been deputed to carry docket and the shop of Taploo was located adjacent to the site of Naka. Seizure memo was prepared by SI and not by Dy.S.P. Only shopkeeper Taploo was called on spot as other shops were closed. Charas was weighed before drawing a sample and thereafter sample of 100 grams was drawn from all 73 sticks by SHO. The witness stated that sticks of seized substance shown to him during trial did not bear any evidence of sample drawn from the same. Charas was weighed before drawing a sample and thereafter sample of 100 grams was drawn from all 73 sticks by SHO. The witness stated that sticks of seized substance shown to him during trial did not bear any evidence of sample drawn from the same. One of the sticks was not simitar in length but he could not spell out the reason. b) PW, Constable Ahmad, stated that he was then posted at P/S Shergarhi. Accused was riding a red coloured bike when he was intercepted at Naka. Constable Aijaz Ahmad found a bag in dickey and informed SHO, who was present on spot. SHO rang up SDPO, who arrived on spot and search of bag yielded Charas. SI Tanveer Jehangir drew a sample of substance. A shopkeeper was called with scales who weighed recovered substance. It was found to be weighing 5 ½ kgs. The witness further stated that SHO wrote a docket and deputed him to police station. The witness carried docket to police station, delivered it to Munshi and returned to the spot. Witness testified to contents of various seizure memos. On cross examination, he deposed that police squad deputed for Naka checking was headed by SI Tanveer. The squad had left P/S Shergarhi at 8.00 AM after recording Rawangi. SHO was not accompanying the squad at that time but he later reached Naka point. He signed all documents and seizure memos at police station. SDPO also visited police station at about 1.00 PM while Naka party had reported at police station at 12.00 noon. He had signed documents at police station and others had not signed memos in his presence and that SDPO had not delivered any memo to accused in his presence. He claimed that he had carried docket to police station at 9.30 AM and the bad had been opened by Dy.S.P. who brought out substance and declared the same as being Charas. Only one or two leaves bearing sticks of Charas had been opened to lift the sample and no shopkeeper was called on spot in his presence. c) PW3, Constable Aijaz Ahmad, stated he was then posted at P/S Shergarh. He was member of Naka squad. He stated that after red colored motorcycle of accused was intercepted by him at Naka point and dickey was opened, a hue size bag was found lying in the dickey. c) PW3, Constable Aijaz Ahmad, stated he was then posted at P/S Shergarh. He was member of Naka squad. He stated that after red colored motorcycle of accused was intercepted by him at Naka point and dickey was opened, a hue size bag was found lying in the dickey. Since he suspected commission of offence, he informed SHO, who in turn rang up SDPO, who arrived on spot and SHO delivered a notice to accused. On opening bag, 73 sticks were found wrapped in corn leaves, which was weighed in scales obtained a shopkeeper and it was found weighing 5 ½ kgs. A sample of 100 grams was drawn from seized substance and sealed for being examined in FSL. On cross examination, he stated that he had signed all memo on spot and he did not sign any memo at police station and that all memos were drawn up on spot. K.T.Singh had reached the spot within 20 minutes of interception of accused and Dy.S.P. had written the notice served on accused, who had replied that he had no objections in conducting of search. Reply of accused had been obtained in writing on the notice itself. Personal search memo of accused was drafted by Dy.S.P. and other members of squad had also signed memos on spot. Docket was forwarded to police station at 9.30 AM, but he did not know whether the same was forwarded before or after lifting of sample and he could not say whether sample was drawn from all 73 sticks. The witness denied that on searching dickey of motorcycle, he opened bag and discovered Charas lying inside. He also denied that he had signed all memos at police station. d) PW4, Constable Zahoor Ahmad also gave the statement on the lines of above witnesses. On cross examination, he stated that squad led by SHO comprised of four personnel including him. They had left police station at 12.30 PM and reached the spot at 12.50 PM. He also claimed that he too was checking vehicles before the motorcycle of accused was subjected to checking and that motorcycle was searched by constable Aijaz Ahmad, who informed SHO about recovery of bag from motorcycle. He denied that accused was intercepted at 8.00 AM and as per his account, accused was caught at 12.45 PM. e) PW5, Ab. He also claimed that he too was checking vehicles before the motorcycle of accused was subjected to checking and that motorcycle was searched by constable Aijaz Ahmad, who informed SHO about recovery of bag from motorcycle. He denied that accused was intercepted at 8.00 AM and as per his account, accused was caught at 12.45 PM. e) PW5, Ab. Gani Bhat, stated that he was then posted as Incharge FSL PCR, Srinagar and that he had obtained fingerprints of accused at P/S Shergarhi and the impressions were taken on two leaves, one for being forwarded to FSL and second for being delivered to IO. During cross examination, he stated that he overhead writing on specimen was in two different hand writings, one in his hand and that impressions were taken on 6th May 2008 and his statement was recorded by IO and that attestation by Magistrate was not required in view of circular permitting FSL unit to leave specimen in police station. f) PW6, Shakeel Ahmad, stated that he was posted as Scientific Officer, FSL, Srinagar and that on 8th May 2008, he examined one sealed packet forwarded by SDPO Shaheed Gunj on 7th May 2008 and he broke open the seals and found greenish colored material in the form of pieces and he examined contents of sample and detected Charas in the same. During cross examination, he stated that to declare substance to be Charas, it must contain THC above 20% and that physical characteristics of substance are also considered. He has not indicated the proportion of THC in the substance in his certificate and that the same was mandatory. He declared substance to be Charas and thus excluded presence of Ganja and Bhang, but he has not mentioned exact proportion of THC in the substance. He has not indicated the weight of sample analysed by him. He examined all pieces submitted for analysis. He disputed the proposition that only presence or extent of THC in a substance gives it characteristics of Charas, Ganja and Bhang. g) PW7, Bashir Ahmad Balhi, Naib Tehsildar, Executive Magistrate Circle Chatabal, stated that on 7th May 2008, a bag was produced before him for resealing and that he got the same done and forwarded it to FSL for analysis. g) PW7, Bashir Ahmad Balhi, Naib Tehsildar, Executive Magistrate Circle Chatabal, stated that on 7th May 2008, a bag was produced before him for resealing and that he got the same done and forwarded it to FSL for analysis. During cross examination, he also added that IO had drawn a sample earlier which was produced before him and that he mixed the seized substance and drew a sample from the same by taking small amount of substance from each stick. h) PW8, Tariq Ahmad Taploo, stated that his shop is located near Naaz Crossing and he was called by police for weighing the Charas. He found the same to be weighing 5 ½ Kgs. During cross examination, he stated that weighed the substance in his shop and sticks of charas was not counted in his presence, but he could not say the source from which the seized sticks were obtained. i) PW9, K.T.Singh, then posted as SDPO, stated that on 5th May 2008, he received a phone call from SHO P/S Shergarhi, informing him about recovery of a substance resembling Charas and he rushed to spot and conducted search of motorcycle which yielded 73 sticks of charas. During cross examination, he admitted that sample had been drawn from substance before his arrival on spot, which raised suspicion of contraband being smuggled. When he reached spot, SHO, SI Tanveer Jehangir and other police personnel were present. He did not advise SHO to place an officer in charge of investigation who was not already present there at the time of recovery though four other police officers were posted at police station. Seizure memos prepared by SI Tanveer Jehangir. He had advised that the person weighing the contraband be made witness. j) PW, Sh. Amit Sharma, the then City Munsiff, Srinagar, stated that upon application of I.O., assigned to him, he recorded statement of Tariq Ahmad under Section 164 Cr.P.C. and he put some question to witness before recording his statement and then appended a certificate to that effect. k) PW11, Aijaz Ahmad, the then SHO P/S Shergarhi, stated that on 5th May 2008, he and his staff found Charas in dickey of motorcycle of accused and he informed Dy.S.P., who too arrived on spot and he gave option to accused of being searched by Magistrate or by himself. k) PW11, Aijaz Ahmad, the then SHO P/S Shergarhi, stated that on 5th May 2008, he and his staff found Charas in dickey of motorcycle of accused and he informed Dy.S.P., who too arrived on spot and he gave option to accused of being searched by Magistrate or by himself. He consented to search being made in his presence and accused gave his consent in writing. Charas was 5 ½ kgs and sample of 100 grams was drawn from substance and remaining substance was sealed on spot. Accused/respondent was arrested and taken to police station. During cross examination, he stated that he called Dy.S.P. on spot to comply with requirements of Section 50 NDPS Act. He admitted that one of give police personnel present on spot was made I.O. SI Tanveer Ahmad was made IO as he himself had to attend to many matters. He stated that when docket was recorded, case had not been registered by that time. Accused was arrested at 9.30 AM when proceedings were complete. l) PW12, Tanveer Jehangir, then posted as SI, stated that on 5th May 2008, police squad was led by SHO and at about 9.15 AM, motorcycle plied by accused was intercepted. He stated on the lines of above witnesses. During cross examination, he stated SHO and other members of staff also left the police station along with him at the same time. Rawangi had been recorded for Naka checking. He also stated that he did not tell SHO that since he was an eyewitness, it would be improper on his part to conduct investigation. He did not make a query to FSL with respect to proportion of THC. The substance was recovered on 5th May 2008 and same was sent to FSL on 8th May 2008. It had been got resealed on 7th May 2008. 9. In the instant case, Chapter V of the NDPS Act, which provides procedure to be followed and complied with. Section 41 says about power to issue warrant and authorization. The substance was recovered on 5th May 2008 and same was sent to FSL on 8th May 2008. It had been got resealed on 7th May 2008. 9. In the instant case, Chapter V of the NDPS Act, which provides procedure to be followed and complied with. Section 41 says about power to issue warrant and authorization. It provides that a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under NDPS Act, or for search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of the Act is kept or concealed. Subsection (2) of Section 41 provides that any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of Central Government including para-military forces or armed forces as is empowered by general or special order by Central Government, or any such officer of revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under the Act or that any narcotic drug or psychotropic substance or controlled substance in respect whereof any offence under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of the Act is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. Subsection (3) of the Act provides that officer to whom a warrant under subsection (1) is addressed and officer who authorised the arrest or search or the officer who is so authorised under subsection (2) shall have all powers of an officer acting under section 42 of the Act. 10. Section 42 of the Act relates to power of entry, search, seizure and arrest without warrant of authorization. 10. Section 42 of the Act relates to power of entry, search, seizure and arrest without warrant of authorization. It provides that any such officer, being an officer superior in rank to a peon, sepoy or constable, of departments of central excise, narcotics, customs, revenue intelligence or any other department of Central Government including paramilitary forces or armed forces as is empowered by general or special order by Central Government, or any such officer, being an officer superior in rank to a peon, sepoy or constable, of revenue, drugs control, excise, police or any other department of a State Government as is empowered by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the NDPS Act has been committed or any document or other article which may furnish evidence of commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of NDPS Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset enter into and search any such building, conveyance or place; in case of resistance, break open any door and remove any obstacle to such entry; seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of the Act; and detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. However, in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under the Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector. If such officer, however, has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Subsection (2) of Section 42 of the NDPS Act provides that where an officer takes down any information in writing under Subsection (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. 11. Section 43 of NDPS Act relates to power of seizure and arrest in public place. It provides that any officer of any of the departments mentioned in Section 42 of NDPS may :(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of the Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation to Section 43 of the NDPS Act provides that the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 12. Explanation to Section 43 of the NDPS Act provides that the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 12. Section 44 of the Act provides that provisions of Sections 41, 42 and 43 of the NDPS Act shall apply in relation to the offence punishable under Chapter IV and relating to coca plant, the opium poppy or cannabis plant and for this purpose references in those sections to narcotic drugs, or psychotropic substance 1[or controlled substance], shall be construed as including references to coca plant, the opium poppy and cannabis plant. 13. Section 45 of the NDPS Act provides that where it is not practicable to seize any goods, including standing crop, which are liable to confiscation under this Act, any officer duly authorised under section 42 may serve on the owner or person in possession of the goods, an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. 14. Section 49 of the Act says that any officer authorised under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance 1[or controlled substance], in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon. 15. 15. Section 50 of the Act envisages that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, 42 or 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made, officer may detain the person until he can bring him before Gazetted Officer or the Magistrate referred to in subsection (1). The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. Subsection (4) of Section 50 provides that no female shall be searched by anyone excepting a female. Subsection (4) of Section 50 says that when an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. Subsection (6) says that after a search is conducted under Subsection (5), the officer shall record the reasons for such belief which necessitated such search and within 72 hours send a copy thereof to his immediate official superior. 16. Insofar as provisions of Section 51 of the Act are concerned, these provide for application of warrants, arrests and searches. It says and stipulates that provisions of the Code of Criminal Procedure, 1973, shall apply to the extent if they are not inconsistent with the provisions of the Act vis-à-vis all warrants issued and arrests, search and seizures made under the Act. 17. Section 52A of the Act says about disposal of seized narcotic drugs and psychotropic substances in view of the fact that contraband being hazardous in nature having vulnerability of theft, substitution, constraint of proper storage space or any other relevant consideration. 17. Section 52A of the Act says about disposal of seized narcotic drugs and psychotropic substances in view of the fact that contraband being hazardous in nature having vulnerability of theft, substitution, constraint of proper storage space or any other relevant consideration. It enjoins Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. It also provides that where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to officer incharge of nearest police station or to officer empowered under Section 53 of the Act, the officer referred to in Subsection (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or packing in which they are packed, country of origin and other particulars as the officer referred to in Subsection (1) may consider relevant to the identity of narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under the Act and make an application, to any Magistrate for the purpose of (a) certifying correctness of inventory so prepared; or (b) taking, in presence of such magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in presence of such magistrate and certifying correctness of any list of samples so drawn. Subsection (3) provides that where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. Subsection (3) provides that where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. Subsection (4) says that notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under NDPS Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under Subsection (2) and certified by Magistrate, as primary evidence in respect of such offence. 18. Section 55 of the Act envisages that an officer incharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of officer incharge of police station. 19. Whenever any person makes any arrest or seizure under the NDPS Act, he shall within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. It is so enjoined in Section 57 of the Act. 20. When the instant case is looked into in the backdrop of above provisions of the NDPS Act, it becomes evident that neither sample nor was remaining substance delivered to Officer incharge of police station for safe custody as required under and in terms of provisions of Section 55 of the Act or such substance was disposed of in consonance with provisions of Section 52 of the Act. There is not even an iota of mention or statement by SHO or IO about seized substance and its sample consequent upon its alleged seizure and what happed to it. It is also not coming forth from the record as to whether the seized substance/sample had been deposited in safe custody of officer in charge of police station or in Malkhana. It is also not coming forth from the record as to whether the seized substance/sample had been deposited in safe custody of officer in charge of police station or in Malkhana. Even there is no record maintained by police concerned to show that seized substance and sample was deposited in Malkhana on the date of its seizure i.e., 5th May 2008. There is also no mention or record maintained by police concerned to show that seized substance and sample were removed from Malkhana on 7th May 2008, so as to produce the same before Magistrate for resealing. Extracts/record of Roznamcha or a memo are missing in the present case to show the fact of safe deposit of seized substance and sample in police Malkhana and more importantly there is no witness to make a whisper about handling of seized substance and sample, so it is difficult to say or give a finding that seized substance/sample were deposited in safe custody, which was an important procedure to be followed and complied with. In such circumstances, the Trial Court has rightly opined that there was no material on record to demonstrate that there was no occasion for I.O. to tamper with the sample and remaining contents of substance and that the sample subjected to chemical examination at FSL represented substance recovered from the accused. 21. It also comes to fore from perusal of the file as also impugned judgment that 100 grams were drawn from the seized substance, which was marked as “A” and the substance marked as “A-1” and produced before Executive Magistrate for resealing and for forwarding of sample to FSL for chemical examination. It also comes to fore from seizure memo EXTP-II and letter written by SHO to Executive Magistrate, marked as EXTP-X, that Executive Magistrate resealed both packets marked as “A” and “A-1”, marking same as “Q1” and forwarded the same to FSL for chemical examination. This is also evident from letter EXTP-VII, EXTP-VIII is the FSL report that contents of packet resealed as “Q1” were subjected to examination and in his opinion Charas was detected in the contents of sample. Interestingly, the certificate does not mention that resealed “Q1” contained both separately sealed sample and remaining substance. This is also evident from letter EXTP-VII, EXTP-VIII is the FSL report that contents of packet resealed as “Q1” were subjected to examination and in his opinion Charas was detected in the contents of sample. Interestingly, the certificate does not mention that resealed “Q1” contained both separately sealed sample and remaining substance. So it has been correctly concluded by the Trial Court that there was a single packed produced in resealed packet before the FSL Testimony of PW7, Bashir Ahmad Balkhi, which reveals that when IO produced the sealed sample and the sealed packet containing remaining substance before him, he mixed the contents of two packets and lifted a fresh sample by collecting small contents from each stick. This explains omission on the part of FSL Expert to mention description of two packets in the resealed packet. It also appears that it was the Executive Magistrate who had missed the contents of sample and remaining substance separately sealed by SHO on spot and after doing the same, he lifted a fresh sample which was forwarded to FSL and, therefore, it is clear that the result about composition of contents relates to representative sample of what the Executive Magistrate sealed as sample after mixing up the contents of two packets. 22. Learned senior counsel appearing for respondent/accused has invited attention of this Court to Standing Instruction no.1/88, issued by Narcotic Control Burea, New Delhi, to be followed by I.O. in regard to crimes falling within the ambit of NDPS Act, to vehemently aver that these standing instructions have been obviously ignored. In this regard he has also placed reliance on a judgment passed by the Supreme Court in Khet Singh v. Union of India 2002 (4) SCC 380 . It would be appropriate to reproduce Clause 1.5 of the aforesaid Standing Instructions issued by Narcotics Control Bureau, New Delhi, hereunder: “Place and time for drawal of sample. — Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.” 23. — Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.” 23. As is evident from Clause 1.5 of the Standing Instructions, sample is to be drawn from the seized contraband on the spot of recovery that too in duplicate, in presence of witnesses and the person from whose possession the contraband is recovered and a mention to this effect should always be made in the panchnama drawn on the spot. 24. Reference is also made to Clause 3.8 of the aforesaid Standing Instruction, which reads: “Each seizing officer should deposit the drugs fully packed and sealed with his seal in the godown within 48 hours of seizure of such drugs, with a forwarding memo indicating: (i) NDPS Crime No. as per crime and prosecution register under the new law (i.e. NDPS Act) (ii) Name (s) of accused (iii) Reference of test memo (iv) Description of drugs in the sealed packages/containers and other goods, if any (v) Drug-wise quantity in each package/container (vi) Drug-wise number of packages/containers (vii) Total number of all packages/containers The learned Counsel for the appellant contended that these instructions issued by the Narcotics Control Bureau, New Delhi, were not followed and the seizure memo was not prepared at the spot and there was delay in depositing the seized drug in the godown. It was argued that this has caused serious prejudice to the accused and therefore, his conviction is vitiated on that account.” 25. It is pertinent to mention here that the Standing Instructions issued by Narcotics Control Bureau, New Delhi, are to be followed by officer incharge of investigation of the crimes coming within the purview of NDPS Act as these are intended to guide officers and to see that a fair procedure is adopted by officer incharge of investigation. 26. The Supreme Court in the case of State of Punjab Vs. Baldev Singh, 1999(6) SCC 172 , extensively considered the question whether the procedure laid down under Section 50 of NDPS Act was mandatory or not. In paragraph 45 it was held as under:- “….Prosecution cannot be permitted to take advantage of its own wrong. 26. The Supreme Court in the case of State of Punjab Vs. Baldev Singh, 1999(6) SCC 172 , extensively considered the question whether the procedure laid down under Section 50 of NDPS Act was mandatory or not. In paragraph 45 it was held as under:- “….Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded.” 27. Compliance of aforesaid Standing Instructions is to ensure that a fair procedure is adopted in investigation of a case. The Trial Court after full dress discussion of prosecution story, statements of facts and standing instructions and law laid down, has opined as under: “….I have no doubt in my mind that prejudice claimed by accused on this account is not unfounded. Guidelines laying down the afore-said safeguards to ensure fair investigation and trial having been utterly disregarded I find it unsafe to base conviction of accused on the basis of evidence brought on record by Prosecution. In view of the foregoing discussion I am of the considered opinion that the evidence on record cannot be relied upon to convict the accused. Since there was occasion for tampering of the sample of the recovered substance during the transit period of three days and no explanation much less a legally tenable one has been forthcoming in regard to the lapses on the part of the I.O. to deposit the sample and the remaining substance in safe custody. Since there was occasion for tampering of the sample of the recovered substance during the transit period of three days and no explanation much less a legally tenable one has been forthcoming in regard to the lapses on the part of the I.O. to deposit the sample and the remaining substance in safe custody. I am constrained to observed that the prejudice claimed by accused cannot be termed unfounded. Fair procedure forming a bedrock of investigation in cases under the Act having been given a good-bye, I find that the case cannot be held to have been proved by cogent, reliable and legal evidence. Benefit of lapses has to go to the accused. The accused is accordingly acquitted…” 28. Having regard to what has been stated above and after going through the judgment passed by the Trial Court, I find that the Trial court has properly appreciated the witnesses produced before it and appreciation of witnesses by the Trial court does not suffer from any illegality or irregularity, therefore, the instant Appeal is held to be without any merit and, as such, the order of acquittal passed by the Trial court is upheld. Hence the appeal is dismissed. Interim directions, if any, shall stand vacated. 29. Copy of the judgment along with the record be sent down.