JUDGEMENT : 1. This appeal is directed against the judgment dated 26th July 2013, passed by the court of Principal District & Sessions Judge, Pulwama (for short “Trial Court”) whereby accused persons/respondents have been acquitted of their charges in case FIR no.13/2007 under Section 15/18 of NDPS Act, police station Pulwama. 2. I have heard learned counsel for parties and considered the matter. 3. Perusal of the file reveals that prosecution case is that on 12th January 2007, police post of Lassipora received an information that three persons/accused were indulging in illegal trade of narcotic substance, i.e., fukki (poppy straw) and as per the information commission of offence under Section 15/18 of NDPS Act was found committed and, accordingly, necessary entry was made in roznamcha on the same day at serial no.16 and copy of the said entry was forwarded to police station Pulwama for registration of FIR. The officer Choki, Lassipora (PW1) along with PWs 3,4,5,15, SOG Camp Pulwama under the command of PW2 and CRPF personnel of 166 Battalion left for the spot in the government vehicle and PW14 was entrusted investigation of the case. Upon reaching the spot, the site plan was prepared, seizure memos were prepared and statements of witnesses under Section 161 Cr.P.C. was recorded. It is also story of prosecution that accused persons 1&2 were apprehended on spot and search and arrest memos were prepared. PW11, S.P. Operations, also came on spot, who sealed the seized poppy straw, iron machine along with electric motor and motorcycle. PW11 attested seizure memos. The seized property was later on produced before PW13 for sampling and resealing. The expert opinion from FSL was obtained. The seized property was brought to the police choki Lassipora. It is also prosecution story that during investigation, it was found that accused persons 1&3 had installed seized machine for grinding fuki in the shed constructed by accused no.3, adjacent to his residential house in between rice husking machine and oil expeller. PW2 was found to have been working as labour on the said machine with accused persons 1&3. The accused no.3 fled away on spot, who was subsequently arrested on 22nd February 2007. During investigation, it was found that name of accused no.1, which had come in fist information as Rayees Ahmad Wani was actually Riyaz Ahmad Dar S/o Ghulam Nabi Dar R/o Safnagri. The accused no.3 fled away on spot, who was subsequently arrested on 22nd February 2007. During investigation, it was found that name of accused no.1, which had come in fist information as Rayees Ahmad Wani was actually Riyaz Ahmad Dar S/o Ghulam Nabi Dar R/o Safnagri. It was also found that accused no.1 is involved in case FIR no.51/2005 under section 15/18 NDPS Act of police station Zainapora. Charge report for commission of offence under Section 15/18 NDPS Act against accused persons 1&3 and under Section 29 NDPS Act against accused no.2 was laid. 4. Perusal of file would also tend to show that accused persons 1&3 persons formally charged for commission of offence under Section 15 NDPS Act and accused no.2 under Section 29 NDPS Act, vide order dated 16th May 2007, to which they pleaded not guilty and, therefore, the Trial Court directed the prosecution to lead evidence in support of its case. 5. As file would show prosecution/State produced and examined all witnesses except PW12. Statement of accused persons under Section 342 Cr.P.C. was recorded. Accused persons were directed by the Trial Court to adduce evidence in support of their defence, but they did not opt to lead any evidence. Upon consideration of the prosecution case, the Trial Court vide impugned judgement acquitted the accused/respondents. 6. It is stated by learned counsel for respondents that the Trial Court has passed impugned judgement in hot haste and without proper appreciation of facts inasmuch as a huge quantity of narcotic substance of 383 kgs was seized from the conscious possessing of respondents/ accused persons, which is a commercial quantity. It is also contended that Trial Court has neither considered nor appreciated in its right perspective the statement of prosecution witnesses, who have corroborated each other and there was no contradiction of such nature, which would become failure for prosecution case and that there can be minor contradictions in the statements, but there is no such contradiction insofar as important aspect of the case that contraband was seized from conscious possession of accused. It is also stated that Trial Court has not appreciated the prosecution evidence in its right perspective and that evidence and material produced by prosecution before the Trial Court has proved the guilt of accused beyond any shadow of doubt. 7. It is also stated that Trial Court has not appreciated the prosecution evidence in its right perspective and that evidence and material produced by prosecution before the Trial Court has proved the guilt of accused beyond any shadow of doubt. 7. On the other hand, learned counsel for the respondents submits that the finding of Trial Court does not call for any interference as it has properly appreciated the prosecution evidence. He further submits that there is no sufficient evidence to which the Trial Court could have recorded the order of conviction against the accused. The charges framed against the accused on the basis of evidence and proper appreciation have failed to prove the charges. As there was no sufficient evidence, therefore, the order of acquittal recorded by the Trial Court does not call for any interference. 8. Before proceeding further, it would be appropriate to have brief account of the witnesses produced by prosecution before the Trial Court. As there was no sufficient evidence, therefore, the order of acquittal recorded by the Trial Court does not call for any interference. 8. Before proceeding further, it would be appropriate to have brief account of the witnesses produced by prosecution before the Trial Court. (1) Prosecution Witness, PW1, namely, SI Ghulam Nabi 2965/NGO, who was then posted as Officer Choki, Lassipora and listed as witness to the occurrence and seizure, has stated that Choki Lassipora received a reliable information on 12th January 2097 to the effect that at village Shit Parraypora, the illegal trade of narcotic substance is going on; he informed officers because the said village was a sensitive village; a party was constituted under the command of Sub Inspector, Muhammad Saleem, which left for the spot; he and Ghularn Rasool, ASI, were also in the party; the information was recorded in the Roznamcha and a copy was forwarded to police station Pulwarna for registration of FIR, which came to be registered and accordingly he and the Investigating Officer concerned left for the spot; they reached near a shed adjacent to residential house of accused/respondent no.3; a rice husking machine, an oil expeller and a fuki machine was installed in the shed; 12 gunny bags filled with poppy straw were found there, which were seized by the I.O. in his presence; seizure memo was prepared on which he signed as witness; the witness supported the contents of the seizure EXPW1; the seized poppy straw was weighed on spot as 383 kgs and same was seized and sealed; the machine along with electric motor was also seized; 200 grams of grinded poppy was seized from the machine; the witness supported the seizure in respect of the machine EXPW1/1; he also supported the seizure of motorcycle bearing No.4371-JK01D; accused no.1 was arrested on spot and Rs.9000/- was recovered from his pocket search in the denomination of 500 notes; a roll number slip was also recovered during his pocket search which was also brought under seizure; accused no.2 was arrested outside the machine; accused no.3 fled away from the spot; he got his statement recorded with the I.O.; the other formalities were completed by the I.O.; witness deposed that he has seen the seized property in the Court which is the same as had been seized. During cross-examination PW1 stated that STF (SOG) had reached on spot before him; he was informed after STF reached on the spot; thereafter they left from the Choki; that STF had cordoned the place of occurrence and some persons were inside the machine; they reached the spot at 4:30 PM; since STF and SOG had reached on spot earlier, as such, the people had been feared, owing to which they could not call numberdar/chokidar; the gunny bags were sealed in his presence; no civilian was called at the time of search; no Tehsildar or Magistrate was on the spot; SP operations came later on. (2) Prosecution Witness-2, namely, SI Muhammad Saleem, 6835/NGO, who was posted with SOG Camp Pulwama and listed as witness to the occurrence and seizure, deposed in his examination that on 12th January 2007 he was posted at P/S Pulwama. That SP had received an information regarding the illegal narcotic activities in village Shit Parraypora. That then 166 Bn CRPF and SOG personnel headed by him went for raiding the spot. That they reached the spot at 4:00 PM. That they straight way went inside the machine. That the machine was belonging to accused Muhammad Abdullah. That the fuki machine was inside a shed and a rice husking machine and oil expeller were also installed there. That 12 gunny bags of fuki were inside the shed. That he prepared a seizure of the 12 gunny bags. That the seizure of motor cycle and machine was also made. That EXPWl is inserted on the seizure; he cannot identify the borries as they are of the same kind. That no mark is inserted on the same; he has seen the motorcycle mentioned in EXPW1 in the Court premises; he also saw the fuki machine. During cross-examination, the witness deposed that SP had not come with them; it took more than one hour to complete the formalities during which time SP Sahab did not come spot; they handed over the seized property to the police choki Lassipora on the next day; the gunny bags which were lifted from the machine were taken to the police choki in the same condition. (3) Prosecution Witness no.3, namely, SG constable Mushtaq Ahmad 214/PL then posted with police choki Lassipora and listed as ocular witness, stated that he went on spot along with Ghulam Nabi SI Choki Officer Lassipora; accused persons were filling the grinded poppy in the gunny bags; accused no.1, Riyaz Ahmad, was found operating the machine on the spot; accused No.2, Muhammad Maqbool Bhat, was found dealing with the gunny bags; the said Muhammad Maqbool accused was found doing the job as a labour; 12 gunny bags of fuki were seized on spot; besides a motorcycle was also seized; a machine was also seized; seizure memo EXPW was prepared; he has seen the seized property in the Court premises; 200 grams of fuki were seized from the machine regarding which separate seizure, as prepared; the witness supported the seizure EXPW1/1; accused no.1 firstly disclosed his name as Rayees Ahmad, but when a roll numberslip was recovered from his pocket search, his actual name was found as Riyaz Ahmad Dar; Rs.9000/- was recovered during his pocket search. In cross examination he deposed that they reached on spot at 4:30 PM. That SOG party had reached on spot prior to them; ASI Ghulam Rasool was also on spot. That numberdar and chokidar were not called on spot; no Tehsildar was present on spot; he does not know whether SP Qayoom Sahab came on spot or not; he identified the seized property in the Court premises, because there were marks of identification on the same; no civilian was called on the spot to witness the occurrence; he cannot say whether FIR had been registered at that time or not; he does not know as to whether when and how seizure property was weighed; Magistrate was seen by him on spot; he does not know as to whether STF informed the choki. (4) Prosecution witness no.4, namely, Head Constable Muhammad Yousuf 86/PL, listed as witness of occurrence and seizure, deposed at the trial that he left for spot along with the police party from the Choki Lassipora and they reached on spot at 4:30 PM; SOG and CRPF personnel also reached on spot along with them; ASI Ghulam Rasool seized fuki machine along with motor; besides a motorcycle was also seized; 12 gunny bags of fuki were also seized and seizure memo prepared; witness supported the seizure memo EXPW1; fuki was weighed in the police station in the presence of a Magistrate. In cross examination he deposed that he cannot say as to whether SOG persons had went on spot one day ago; when they entered in the machine there was no person inside present; they did not call any civilian person including numberdar or chokidar in connection with the search of the shed; no revenue officer was accompanying them; the fuki machine was not being operated at that time; he is not aware of the sealing of the gunny bags; he is not aware of sampling. (5) Prosecution Witness no.5, namely, SG constable Fayaz Ahmad 426/PL, also listed as a witness of occurrence deposed that he left with the police party from the choki at 4:00 PM; SOG and CRPF were proceeding ahead of them; upon reaching the spot they seized 12 gunny bags of fuki and a fuki machine inside a shed belonging to accused No.3; besides an electric motor and a motor cycle was also seized; witness supported seizure EXPW1; accused 1&2 were present on spot who were arrested; he has seen the seized material in the Court premises which is the same as has been seized. In cross examination he deposed that he was included in the escort of the choki officer. That STF had reached on spot before them; numberdar/chokidar was not called; accused persons 1 and 2 were present inside the machine; half an hour was spent in completing the whole formality. (6) PW6 Farooq Ahmad Bhat listed as independent witness of occurrence and personal search deposed at the trial that about 6/7 months ago in the evening time SOG and CRPF laid a crackdown of their Mohalla; all the inhabitants were assembled in the premises of the Masid. (6) PW6 Farooq Ahmad Bhat listed as independent witness of occurrence and personal search deposed at the trial that about 6/7 months ago in the evening time SOG and CRPF laid a crackdown of their Mohalla; all the inhabitants were assembled in the premises of the Masid. That all the inhabitants were searched that accused persons 1&2 were arrested among the people; he cannot say why they were arrested; no fuki was recovered from their possession. The witness was declared hostile at the request of the PP and in the permitted cross examination by the PP deposed that he is not aware of the fact whether the rice husking machine in the village of accused No.3 was searched or not; accused Riyaz Ahmad Dar is a resident of Safanagri which is 08 kms away from their village; he deposed that he is not acquainted with the seizure EXPW1; he deposed that no personal search was conducted in his presence. That he is an illiterate and his signature is on the search memo EXPWl/2; he is not in apposition to read or write Urdu; however, he can mark his signature; accused persons were not involved in militancy, but raids were being conducted on the houses of accused No.2 and 3 prior to the occurrence; he has seen only rice husking machine and mustard oil expeller in the shed of accused No.3 which is lying closed these days; STF and CRPF had come on spot. In cross examination he deposed that SP Qayoom, then posted with STF, made an announcement of crackdown and asked for assembling in the premises of Masjid; his signature was not obtained by the police; on the next day he was called to police choki where choki officer asked for signing on some papers. In cross examination he deposed that SP Qayoom, then posted with STF, made an announcement of crackdown and asked for assembling in the premises of Masjid; his signature was not obtained by the police; on the next day he was called to police choki where choki officer asked for signing on some papers. (7) Prosecution witness no.7, namely, Abdul Hamid Bhat also listed an independent witness, deposed that in the month of January he on one day was coming out of Masjid after offering prayers when in the meanwhile announcement of crackdown was made; they were asked to assemble in premises of Masjid; they felt that it is task force persons who were visiting the village on some occasions; the STF persons told that if there was any guest upon which accused, Riyaz Ahmad Dar, stood up and said that he is guest of accused no.2, Muhammad Maqbool; both persons were taken by STF with them; he witnessed that they straightway approached the machine shed of accused no.3 and after 10 to 15 minutes they brought some gunny bags and left in the vehicle; when they reached near machine, they saw that machine had also been lifted; motor had also been lifted; his signature was lying on EXPW1/2, but at that time it was blank without any contents when his signature was taken; In cross examination he deposed that he did not see choki persons on spot; no search or seizure was made in his presence; (8) Prosecution witness no.8, namely, Gulzar Ahmad Driver SPO 85 listed as witness to occurrence, stated that on 12th January 2007, he was posted as driver with police choki Lassipora; on that day he left in the vehicle along with choki officer and other police officers to village Shit Parraypora; there was a machine in the premises of accused; he was asked to remove the machine; he brought some tools from the vehicle and removed the machinery; the machinery and some gunny bags were loaded in the vehicle; the machine, motor had been shown to him in the Court premises which is the same as had been seized. In cross examination he deposed that they reached on spot in the evening time; SOG persons called the police Lassipora; he cannot say as to how much earlier had SOG persons reached on spot; however, it is true that they had also conducted search, that has not seen the machine operational on spot. (9) Prosecution Witness no.9, namely, Farooq Ahmad Rather, then posted as Patrwari Halqa Palapora, deposed that on 19th 19/02/2007 he issued the revenue extract EXPW9; that he did not go on spot for issuing the said extract. In cross-examination he deposed that a police man had come at his lodging along with a letter and he issued the revenue extract; as per the record there is no mention of any grinding machine (grath) in the extract; he was not taken by the police on spot; this revenue official has admitted at the trial that he issued the revenue extract at his official residence and that too after more than a month from the occurrence; he has also supported the fact that there was as per record no grath on the land. (10) Prosecution Witness no.10, namely, Shakeel Ahmad Wani Scientific Officer FSL Srinagar examined on 10th March 2007 and 24th April 2008 stated at the trial that on 23rd January 2007, he received 13 sealed pockets marked as Al, Bl, Cl up to Ll and M13 enclosed within cloth bearing four intact seals forwarded by Deputy S.P HQ Pulwama vide his letter dated 20/01/2007 through Najam ud din Sg Constable 230/PL; the pockets on opening were found to contain straw coloured powdered material which were given exhibit Nos. S-174/2007 to S-186/2007 by him in the laboratory; that exhibits were subjected to examination and opium was detected in the above said exhibited numbers; the said witness has supported his certificate EXPW10. In cross examination he deposed that he received the pockets on 23/01/2007 and not on 20/01/2007; the said pockets were bearing Nos. from Al to Ll and M13 and not Ml to M13; he has not given percentage of opium in his report; he has not also metioned impurities in the said samples; he is not a chemical examiner which is a separate post. from Al to Ll and M13 and not Ml to M13; he has not given percentage of opium in his report; he has not also metioned impurities in the said samples; he is not a chemical examiner which is a separate post. (11) Prosecution Witness no.11, namely, Abdul Qayoom, the then SP operations Pulwama, listed as witness of occurrence and seizure, stated that on 12th January 2007 he provided security to police post Lassipora for laying a raid at Shit Parraypora; SI Muhammad Saleem was heading his party; he went on spot later on for taking stock of the situation; he reached the spot one hour late; he attested the memos prepared by the IO on spot. During cross-examination, the witness deposed that when and how Muhammad Saleem SI reached on spot, he does not know; he went one hour late for supervising the situation; he cannot say anything about the proceeding that had been conducted by the police party during the said one hour before his reaching on spot; he did not call any numberdar, chokidar or a reputed person of the village; when he reached on spot the choki officer had brought out 12 gunny bags and had also taken samples. (12) Prosecution Witness no.12, namely, Farooq Ahmad, Inspector, is a witness to the satisfaction regarding investigation proceedings, has not been examined at the trial. (13) Prosecution witness no.13, namely, Ghulam Mohi ud din Shah Executive Magistrate then posted at Palapora, stated that in January 2007 he was posted as Executive Magistrate Palapora. That he was at that time at HQ Pulwama; police brought some samples which had been sealed before him; he broke the seal; some powder like substance was inside the packs; he resealed the samples and send them for FSL opinion; the witness supported the EXPW13 i.e., letter addressed by him to FSL; the samples produced before him had been packed in 12 bags; the impression of the seal used by him is also on the EXPW13. During cross-examination, witness stated that 12 gunny bags were produced before him; 12 packets were also produced before him which were sealed; he broke open the small bags resealed them and send to FSL. During cross-examination, witness stated that 12 gunny bags were produced before him; 12 packets were also produced before him which were sealed; he broke open the small bags resealed them and send to FSL. (14) Prosecution Witness no.14, namely, Ghulam Rasool ASI 43/Awt 1/0, stated that on 12th January 2007, police post Lassipora received information regarding the incident; that a docket was issued to the police station for registration of FIR; they left from the choki in official vehicle at 4:00 PM; they approached near the machine shed; SOG had already condoned the area; that he had been entrusted investigation by the choki officer prior to registration of FIR; he prepared the site plan EXP14; the witness also supported the seizure memo EXPWl, the search memo EXPW2; SOG arrested accused 1&2 on the spot; offence u/s 15/ 18 was found established against accused persons 1&3 and offence under Section 29 NDPS Act against accused no.2; the seized fuki weighed 383 kgs; the sample was sent to FSL. In cross examination, the witness deposed that actually the information had been received by SP Qayoom, who had already deputed a party under the command of Muhammad Saleem SI on spot; Muhammad Saleem SI was heading SOG and CRPF group; SP later on intimated them; he does not know how much earlier SOG had reached on spot and what action they have taken; it is true that SOG had made the seizure and affected the arrest; however, they had not lifted the seized property; he was told by the SOG that accused persons 1 and 2 were arrested inside the machine; no CRFP personnel was listed as a witness in the case; he had not obtained any search warrant. 9. The Trial Court after reproduction and discussion of statements of witnesses, found that I.O. of the case, who was an important witness, pinpointed fatal flaws in the investigation of the case as actually it was SOG who had completed all the formality including making of seizure and arrest of accused before they reached the spot. The IO had also admitted that he was entrusted investigation of the case prior to registration of FIR. The IO had also admitted that he was entrusted investigation of the case prior to registration of FIR. In such circumstances the Trial Court found that various fatal flaws emerged in the prosecution story, which are: (a) The information was received in the police choki at 4:00 PM and the raiding team left for the spot at the same time in connection with investigation of the case, when the FIR came to be registered in the police station Pulwama at 5:10 PM. (b) SOG and CRPF had reached the spot prior to I.O. of the case and they had completed all the formalities of seizure and arrest as has been admitted by the PWs 2 and 14. (c) The independent civilian witnesses, i.e., PWs 6&7 have not supported the prosecution version of the case. They have rather introduced the story of crackdown and lifting of accused 1&2 from the crackdown. (d) No independent witness has been associated with the search and seizure. In the absence of search warrant the 1/0 had to necessarily associate two independent persons with the search as per the provisions of NDPS and Cr.P.C. (e) The sampling in the real essence has not been done in the presence of PW13. The said witness has admitted that sealed samples were produced before him which were resealed by him after breaking the earlier seal. This lends support to the evidence PW11 to the effect that samples had already been taken on spot. (f) There had been a contention on the part of counsel for defence/accused persons that mandatory provisions of NDPS Act, particularly Section 42, 50, 55 and 57 had been observed in breach inasmuch as compliance to the said provisions has not been proved. 10. 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. 10. 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. 11. Section 42 of the Act relates to power of entry, search, seizure and arrest without warrant of authorization. 11. 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. 12. Section 43 of the 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. 13. 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. 13. 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. 14. 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 the Act, any officer duly authorised under Section 42 may serve on owner or person in possession of goods, an order that he shall not remove, part with or otherwise deal with the goods except with previous permission of such officer. 15. Section 49 of the Act envisions 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 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. 16. 16. 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. 17. 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 the 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. 18. Section 52A of the Act says with regard to 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. 18. Section 52A of the Act says with regard to 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) provides 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. 19. 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. 20. 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. 21. When the instant case is looked into in the backdrop of above provisions of the NDPS Act, it becomes evident that provisions of NDPS Act have not been followed in its letter and spirit. The Trial Court has detected and made mention of the failures and breaches committed by prosecution. The prosecution witnesses have not corroborated the prosecution story. I.O. in the present case has caused delay in sending the sample to FSL, which is, of course, a serious lapse on his part. The alleged seizure is said to have taken place on 12th January 2007 while as the sample has been dispatched to FSL, Srinagar, on 23rd January 2007, that is, eleven days’ delay. This reflects serious lapse on the part of I.O. 22. The alleged seizure is said to have taken place on 12th January 2007 while as the sample has been dispatched to FSL, Srinagar, on 23rd January 2007, that is, eleven days’ delay. This reflects serious lapse on the part of I.O. 22. It is worthwhile to mention here that the Standing Instruction no.1/88, issued by Narcotic Control Bureau, New Delhi, is to be followed by I.O. in regard to crimes falling within the ambit of NDPS Act. Reliance is relevant to be placed on a judgement of the Supreme Court in the case of Khet Singh v. Union of India 2002 (4) SCC 380 , wherein it was observed that the instructions issued by the Narcotics Control Bureau, New Delhi, are to be followed by the officer in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law, they are intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. 23. In Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 , the Supreme Court after giving thoughtful consideration to the guidelines issued under the NDPS Act in the Standing Order, observed that the guidelines issued should not only be substantially complied, but also in a case involving penal proceedings vis-à-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith. 24. The Supreme Court in the case of State of Kerala and others v. Kurian Abraham (P) Limited and another, (2008) 3 SCC 582 , following the earlier decision in Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 , held that statutory instructions are mandatory in nature. 25. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. 26. It would be apt to say that the Standing Instruction No.1/88 dated 15.03.1988 of Narcotics Control Bureau, Government of India, prescribes detailed procedure for sampling, sealing and dispatching the seized samples to the laboratory for test. The Clauses 1.4, 1.5, 1.6 and 1.9 of Standing Instruction No.1/88 dated 15.03.1988 read as under :- “1.4 If the drugs seized are found in packages/containers, the same should be serially numbered for purposes of identification. The Clauses 1.4, 1.5, 1.6 and 1.9 of Standing Instruction No.1/88 dated 15.03.1988 read as under :- “1.4 If the drugs seized are found in packages/containers, the same should be serially numbered for purposes of identification. In case the drugs are found in loose form, the same should be arranged to be packed in unit containers of uniform size and serial numbers should be assigned to each package/container. Besides the serial numbers, the gross and net weight, particular of the drug and the date of seizure should invariably be indicated on the packages. In case sufficient space is not available for recording the above information on the package, a Card Board label, should be affixed with a seal of the seizing officer and on this Card Board label, the above details should be recorded. 1.5 Place and time of 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 has been recovered, and mention to this effect should invariably be made in the panch nama drawn on the spot. 1.6 Quantity of different drugs required in the sample The Quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. 1.9 It needs no emphasis that all samples must be drawn and sealed; in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person, from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the samples.” 27. The official seal of the seizing officer should also be affixed. If the person, from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the samples.” 27. As is evident from abovementioned Clauses of the Standing Instructions, if the seized drugs are found in packages/containers, the same should be serially numbered for purposes of identification and if drugs are found in loose form, the same should be arranged to be packed in unit containers of uniform size and serial numbers should be assigned to each package/container. Besides serial numbers, gross and net weight, particular of drug and date of seizure should invariably be indicated on the packages. If sufficient space is not available for recording above information on the package, a Card Board label, should be affixed with a seal of the seizing officer and on this Card Board label, the above details should be recorded. The samples 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 has been recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. All the samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer, and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person, from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the samples. 28. The official seal of the seizing officer should also be affixed. If the person, from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the duplicate of each of the samples. 28. 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.” 29. 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. 30. The Supreme Court in the case of State of Punjab v. 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. 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.” 31.Compliance of aforesaid Standing Instructions or for that matter the provisions of the NDPS Act is to ensure that a fair procedure is adopted in investigation of a case. 32. It may be mentioned here that while going through the record of the Trial Court, particularly the statement of witnesses, it comes to fore that prosecution witness no.1 has in his deposition stated that SOG had reached the spot earlier and they informed him and it was at 4:30 PM that they reached the spot. Perusal of FIR reveals that information was received by police station Pulwama at 05:10 PM, that means investigation had started prior to registration of FIR. Another aspect of the matter is that perusal of extract of roznamcha under no.16 dated 12th Janaury 2007 of police choki Lassipora, which was forwarded to police station Pulwama for registering FIR, reveals that the raiding party left for spot just after receving the information at 04:00 PM and the said copy reveals that PW1, i.e, officer choki, had of his own appointed ASI Ghulam Rasool, PW14, as I.O., when, as a matter of fact, FIR was yet to be registered, so this creates serious infirmity and raises doubt about the genuineness of the investigation process in the present case. Insofar as PW2 is concerned, he is his statement deposed that seized property was handed over to police choki Lassipora on next day, thereby demonstrating fatal flaws in the investigation process. PW6, who was listed as independent witness, stated that in the evening time SOG and CRPF laid a crackdown of their Mohalla and all the inhabitants were assembled in the premises of Masjid and that all the inhabitants were searched and accused persons 1&2 were arrested among the people there and that no fuki was recovered from their possession, although he was declared at the request of PP. During cross examination the said witness stated that SP who was posted at that time with STF made an announcement of crackdown and asked for assembling in the premises of Masjid and that his signature was obtained by police on some papers. Another independent witness of prosecution, PW7, in his deposition, stated that in the month of January 2007, when he came out of Masjid after offering prayers, announcement of crackdown was made and they were assembled in the premises of Masjid and they felt that it was task force persons, who were visiting the village on some occasions. He also stated that STF persons told that whether there was any guest, upon which accused, Riyaz Ahmad Dar, stood up and said that he was guest of accused no.2 and that both the persons were taken by STF with them. During cross-examination, he stated that he did not see choki persons on spot and that no search or seizure was made in his presence. PW9 was a Patwari Halqa Palapora, who stated that revenue extract he issued revenue extract after more than a month from the date of occurrence, which was prepared by him at his official residence and that he was not taken by the police to the spot. PW11, who was a Scientific Officer, FSL Srinagar, stated that he received the samples on 23rd January 2007, i.e., 11 days after the date of occurrence. PW11 stated that he went to the spot one hour after the raiding party and that seizure and other memos had been prepared which were attested by him. PW11, who was a Scientific Officer, FSL Srinagar, stated that he received the samples on 23rd January 2007, i.e., 11 days after the date of occurrence. PW11 stated that he went to the spot one hour after the raiding party and that seizure and other memos had been prepared which were attested by him. PW12, who was IO of the case, pinpointed fatal flaws in the investigation of the case as according to him SOG had completed all the formality including making of seizure and arrest of accused before they reached the spot. He also admitted that he was entrusted investigation of the case prior to registration of FIR. The Trial Court after full dress discussion of prosecution story, statements of witnesses and standing instructions and law laid down, has rightly opined and viewed that prosecution has failed at the trial to prove the guilt of the accused beyond any shadow of doubt and consequently acquitted the accused. 33. 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 dated 26th July 2013, passed by the Trial Court is upheld. Hence the appeal is dismissed. Interim directions, if any, shall stand vacated. 34.Copy of the judgement along with the record be sent down.