JUDGMENT : This appeal is at the instance of the 1st accused in SC No.873 of 2002 on the file of Additional District and Sessions Court, Fast Track-I, Thiruvananthapuram (The Court of Special Judge for trial of cases under the NDPS Act), assailing his conviction and sentence under Section 8(c) read with Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as ‘the NDPS Act’), as per judgment dated 23.02.2007. 2. The prosecution case is that, on 07.05.2002 at 5.30 p.m, PW5, the Intelligence Officer, NCB, RIU, Thiruvananthapuram, obtained a secret information that three persons named Jalaludeen, Firoz Khan and Raju were keeping 1kg of brown sugar (heroin) in Room No.102 of Ellickal lodge near SP Fort Hospital, Thiruvananthapuram and they were staying in that room for the purpose of its sale. After recording that information and forwarding the same to the superior officer, PWs 5 and 6 reached that lodge and conducted search in room No.102, in the presence of the Manager and Watchman of that lodge. Mr.Jalaludeen (A1) and Firoz (A2) were there in room No.102 of that lodge, and on search, 790gms of brown sugar (heroin) was seized from their possession. After completing the legal formalities, the contraband along with Sri.Jalaluddin (A1) and Firoz (A2) were taken to the NCB office where OR No.2/2002 NCB/RIU/TVM was registered against them. After completing investigation, they were charged under Section 8(c) read with Section 21(c) of the NDPS Act, since they were found in possession of commercial quantity of brown sugar (heroin). 3. The 2nd accused Firoz Khan was absconding and so, case against him was split up and the case against the 1st accused Jalaluddin was proceeded against. 4. On appearance of the 1st accused before the trial court, charge was framed against him under Section 8(c) read with Section 21(c) of the NDPS Act, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P24 and identified MOs 1 to 4. 5. On closure of the prosecution evidence, the 1st accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and pleaded innocence. DW1 was examined as a witness from defence side. 6. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P24 and identified MOs 1 to 4. 5. On closure of the prosecution evidence, the 1st accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and pleaded innocence. DW1 was examined as a witness from defence side. 6. On analysing the facts and evidence and on appreciating the rival contentions from either side, the trial court found that the prosecution succeeded in proving the guilt of the 1st accused under Section 8(c) read with Section 21(c) of the NDPS Act and he was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for three years. Aggrieved by the conviction and sentence, the 1st accused has come up with this appeal. 7. The challenges against the impugned judgment are manifold. According to the appellant, prosecution cooked up a false case against him, without any factual foundation. The statutory requirements under the NDPS Act were flouted by the officials. Inordinate delay in analysing the sample before the chemical examiner’s lab was not explained by the prosecution. There is every reason to believe that PWs 5 and 6 concocted documents in their office itself and the appellant was made a scapegoat in order to save some big guns engaged in drug trafficking. 8. Learned counsel for the appellant Adv.Smt.Suman Chakravarthy relinquished vakalath, and since the appellant did not engage any other lawyer to conduct his case, Adv.Smt.Aiswarya V.S. was appointed as Amicus Curiae. Later she expressed her inability to appear in this matter, and so Adv.Sri.P.Rakesh Thamban was appointed as Amicus Curiae. 9. Heard learned Amicus Curiae Sri.Rakesh Thamban and learned Special Public Prosecutor for NCB Sri.R. Vinu Raj. 10. The first contention taken up by the learned Amicus Curiae is that, in this case the provisions of Section 42 of the NDPS Act has been totally violated, so as to vitiate the trial. Section 42 of the NDPS Act reads thus: “42. Heard learned Amicus Curiae Sri.Rakesh Thamban and learned Special Public Prosecutor for NCB Sri.R. Vinu Raj. 10. The first contention taken up by the learned Amicus Curiae is that, in this case the provisions of Section 42 of the NDPS Act has been totally violated, so as to vitiate the trial. Section 42 of the NDPS Act reads thus: “42. Power of entry, search, seizure and arrest without warrant or authorisation.—(l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the 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 down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this 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 this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) 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 this Act; and (d) 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: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the 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. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior”. 11. Obviously, Section 42 of the NDPS Act has two parts. The first part deals with the recording of the information and the second part deals with the conduct of search. The first part again has two limbs; the first limb dealing with the recording of information received, and the other limb relating to the belief of the officer, based upon his personal knowledge. Any information recorded in terms of sub section (1) of Section 42 is required to be sent to the superior officer of the person recording the information, as mandated by sub section (2) of Section 42. In the case on hand, PW5-the empowered officer would say that, he had received a secret information in Malayalam language and he recorded the same. But, the copy of that recorded information was not forwarded to his superior officer. The information received in Malayalam, which was recorded by PW5, was not seen produced before the court also. Ext.P9 intelligence report submitted by PW5 before his superior officer-PW6, contains an extract of the English translation of the information received by him. Recording of information as it was spoken to by the informant in the language used by him will add credibility to that information. When it was translated to another language and extracted in another document, it may lose its authenticity. Moreover, the original information recorded by PW5 or its copy was not produced in this case, except the translated extract in Ext.P9. So, the first limb of first part of Section 42(1) has not been properly complied with, by PW5-the empowered officer. 12. The second part of Section 42(1) deals with the power of the officer regarding entry, search, seizure and arrest without warrant or authorisation. The authorised officer has the power to enter into and search any building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry. 12. The second part of Section 42(1) deals with the power of the officer regarding entry, search, seizure and arrest without warrant or authorisation. The authorised officer has the power to enter into and search any building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry. He has power to seize the 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 the Act and to detain and search, and, if he thinks proper, arrest any person whom he has reason to believe, to have committed any offence punishable under Chapter IV relating to such drug or substance. However, in exercising a power under the second part of Section 42(1), the designated officer is under a legal obligation to comply with the mandate of the proviso to sub section (1), providing for recording of grounds of his belief to make the search in terms of the powers conferred upon him. If the search and seizure envisaged under Section 42(1) of the NDPS Act is between sunrise and sunset, that proviso has no application. But, if the search and seizure is between sunset and sunrise, it is mandatory that the reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of the offender, is to be recorded before entering into a building/conveyance/enclosed place as the case may be for conducting the search. PW5-the empowered officer admitted before court, that he did not get any authorisation from his superior officer for conducting search, seizure or arrest and no search warrant was obtained from the Magistrate. Moreover, no search memo was prepared by him before conducting search in room No.102 of Ellickal lodge. 13. Admittedly, the search in this case was conducted after 7 p.m on 07.05.2002. So, it was between sunset and sunrise. Definitely PW5 should have recorded the grounds of his belief before proceeding with the search in that lodge room, between sunset and sunrise. So, obviously, there is violation of the proviso to Section 42(1) of the NDPS Act. 13. Admittedly, the search in this case was conducted after 7 p.m on 07.05.2002. So, it was between sunset and sunrise. Definitely PW5 should have recorded the grounds of his belief before proceeding with the search in that lodge room, between sunset and sunrise. So, obviously, there is violation of the proviso to Section 42(1) of the NDPS Act. The mandate of law as incorporated under the Act is required to be strictly followed, in view of the grave and serious consequences which are likely to be followed on proof of possession of the contraband article. The legislature had enacted and provided safeguards in various provisions of the Act including Section 42, to be followed strictly. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with the safeguards. 14. In the decision Karnail Singh v. State of Haryana [ 2009 KHC 864 = (2009) 3 SCC (Cri) 887], the Apex Court held that, compliance with the requirements of Section 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. Total non compliance of sub section (1) and (2) of Section 42 is impermissible. Search and seizure are essential steps in the armoury of an investigator in the investigation of a criminal case. An empowered officer may carry out arrest or search, without warrant, between sunrise and sunset and it can be even without recording his reasons of belief as envisaged in the proviso. But, when the search is to be conducted in a building, conveyance or enclosed place at any time between sunset and sunrise, without any authorisation or warrant, it is mandatory to record the grounds of his belief, that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. Since PW5 categorically admitted before court that he did not obtain any authorisation or search warrant for conducting search in room No.102 of Ellickal lodge between sunset and sunrise and he proceeded for search even without recording the grounds of his belief as envisaged under the proviso to sub section (1) of Section 42, there is clear violation of that statutory mandate. 15. 15. The Apex Court, in State of Rajasthan v. Jag Raj Singh @ Hansa [ AIR 2016 SC 3041 = (2016) 11 SCC 687 ], reaffirmed that in a case in which search of a building/conveyance/ enclosed space was conducted between sunset and sunrise without any warrant or authorisation, and without recording of reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender, the conviction cannot be sustained. 16. This Court, in Thundiyil Muhammadali v. State of Kerala [ 2020 (4) KHC 64 ] considered the effect of non- compliance of Section 42(1) and Section 42(2) of the NDPS Act and found that, compliance of the said provision is mandatory, and its non-compliance will vitiate the trial. Moreover, compliance of Section 42 cannot be presumed, without there being any evidence adduced by prosecution. 17. The purpose of Section 42 of the NDPS Act is to provide fairness in the process of recovery and investigation, which is one of the basic features of criminal proceedings. In the case on hand, there is clear admission from the part of the empowered officer (PW5) that he had no authorisation or search warrant for conducting search in room No.102 of Ellickal lodge, and he did not even record the grounds of his belief as envisaged under the proviso to Section 42(1) before proceeding with the search, between sunset and sunrise. So, there was non compliance of Section 42(1) of the NDPS Act and its proviso, which will vitiate the trial. 18. Learned Amicus Curiae would submit that, as per Section 42(2) of the NDPS Act, copy of the information recorded in writing under sub section (1) and the grounds of belief recorded under the proviso thereto shall be sent to the immediate official superior within 72 hours, and in the case on hand, that mandate also has been violated. As we have seen, the information received in Malayalam was not taken down by PW5 in that language and its copy was never sent to his immediate superior. English translation of the information received, was seen extracted in the intelligence report submitted before the superior officer. Moreover, no grounds of belief under the proviso to Section 42(1) was seen recorded by PW5, so as to forward a copy of the same to the superior officer. English translation of the information received, was seen extracted in the intelligence report submitted before the superior officer. Moreover, no grounds of belief under the proviso to Section 42(1) was seen recorded by PW5, so as to forward a copy of the same to the superior officer. So, there was violation of the mandate under Section 42(2) of the NDPS Act also. 19. Learned Amicus Curiae contended that, there was inordinate delay in reaching the sample before the chemical examiner’s lab. PW5 has not stated where the sample was kept till it reached the hands of the analyst or the condition under which it was kept safe till it was forwarded to the Lab. Moreover, there was difference in weight of the sample that reached the lab, which casts a serious doubt regarding the identity of the sample. He would rely on clause 1.13 of the standing order No.1/88 issued by the Narcotics Control Bureau which says that, the samples must be despatched to the laboratory within 72 hours of its seizure. In the case on hand, the seizure was on 07.05.2002, but it reached the lab only on 17.06.2002, and the test was conducted between 24.06.2002 to 28.06.2002. PW5, the Intelligence Officer, has not stated where he had kept the sample or under whose custody it was kept, till it was produced before the court. Ext.P18 list of materials produced before the court contains the dated seal of the court showing the date as 09.05.2002. Copy of the forwarding note is not seen produced in this case to show when actually the sample was forwarded to the chemical lab. So there is no clarity as to who produced the sample before the chemical lab. The property clerk of the court was also not examined to say, under what condition the sample was kept before the court, till it was sent to the analyst. 20. In Ramachandran v. State of Kerala [ 2021 (1) KLT 793 ], this Court held that when the forwarding note/requisition for sending the sample was not produced, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory, as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized, which eventually reached the chemical examiner’s lab. 21. 21. PW5 took the sample in two packets, each containing 5gms, but the sample packet reached before the chemical lab contained only 3.9 gms. Prosecution failed to explain that disparity satisfactorily. Though two sample packets were taken at the spot as stated by PW5, Ext.P1 chemical examination report will show that only one sample packet reached the lab. For that also, no explanation is forthcoming from the side of the prosecution. The ‘Test memo’, which is a document allegedly prepared at the time of seizure, will show that, only one sample packet weighing 5gms with the marking S1 was drawn and sent to the lab. So also, there is discrepancy regarding taking of samples and its weight, which remains unexplained. The credibility of the recovery proceedings is considerably eroded for the reasons aforesaid. Since the seal and the packets were under the custody of PW5 till its production before the court, learned Amicus Curiae would contend that, the possibility of tampering could not be ruled out, especially when there was discrepancy in the weight of the sample which reached the chemical examiner’s lab. 22. Prosecution is duty bound to prove the link evidence to show that the contraband substance allegedly recovered from the place of occurrence was the one subjected to analysis in the chemical examiner’s laboratory. There was significant variation in the weight of the sample which reached the chemical examiner’s lab. There is no evidence to show the nature and condition under which the sample was kept till it reached the lab. The property clerk who was keeping custody of the sample, or the police officer who handed over the sample to the chemical examiner’s lab, were not examined. So the possibility of the sample being changed or tampered with could not be ruled out by the prosecution. 23. Learned Amicus curiae drew the attention of this Court to the ‘Test memo’ seen appended with Ext.P1 chemical examiner’s report. According to him, it is a contemporary document to be prepared from the spot, at the time of seizure, but it shows the crime number as OR 2/2002 NCB/RIU/TVM. If that document was prepared at the spot at the time of search and seizure, there was no possibility for the crime number to be recorded in that document. According to him, it is a contemporary document to be prepared from the spot, at the time of seizure, but it shows the crime number as OR 2/2002 NCB/RIU/TVM. If that document was prepared at the spot at the time of search and seizure, there was no possibility for the crime number to be recorded in that document. So, obviously, that document was prepared at the office of the NCB, and it was not a document prepared at the time of search or seizure. 24. In Santhosh S/o.Ayyappan v. State of Kerala, represented by Circle Inspector of Police, Munnar through Public Prosecutor, High Court of Kerala [ 2021 (5) KHC 214 ], this Court had occasion to consider an arrest memo prepared at the spot of detection in an abkari case, in which crime number was seen recorded. The court held that when crime number is found in a document, which was expected to be prepared at the spot of detection, the seizure of the contraband substance comes under cloud, and it will create a doubt regarding the genesis of the prosecution case. Usually, a crime or occurrence report will be registered from the office after the search, seizure, arrest etc. There was no chance for recording the crime number or OR number in a document which was supposed to be prepared at the spot of search, seizure, arrest etc. If that document contains the crime number or OR number, it is a valid ground to doubt the genuineness of the search, seizure, arrest etc. 25. PW4 was the only independent witness examined in this case. He was a Watcher of Ellickal lodge during the relevant period. According to him, his duty time was between 8pm and 8am on 07.05.2002. PW5 would say that, they reached Ellickal lodge at 7 p.m and at that time, PW4 was present there. The Manager of Ellickal lodge who was also a witness to the search, passed away and so, he could not be examined in this case. PW4, though admitted his signature in certain documents produced by the prosecution including Ext.P6 mahazar, according to him, he had not seen seizure of brown sugar from any of the accused. It is true that, if the testimony of official witnesses are trustworthy and unblemished, there is no reason for insisting independent evidence for corroboration. PW4, though admitted his signature in certain documents produced by the prosecution including Ext.P6 mahazar, according to him, he had not seen seizure of brown sugar from any of the accused. It is true that, if the testimony of official witnesses are trustworthy and unblemished, there is no reason for insisting independent evidence for corroboration. So, let us see whether the testimony of PW5 can be accepted without any corroboration from independent source. 26. According to PW5, he received secret information that three persons were staying in room No.102 of Ellickal lodge, and they were possessing 1kg of brown sugar (heroin) for sale. As we have seen, the information received by him in Malayalam was not recorded by him in that language and he translated the same to English and extracted the same in Ext.P9 intelligence report placed before PW6, his superior officer. In Ext.P9, PW6, the superior officer, has endorsed ‘Seen. Action as proposed’. Though that endorsement also is dated 07.05.2002, its time is not mentioned. Strange enough, the superior officer-PW6 also accompanied PW5 for conducting the search in Ellickal lodge. When a superior officer is there in the detection team, normally, he will lead the team of officers to conduct the search, seizure, arrest etc, and the documents also will be prepared under his seal and signature. 27. In the case on hand, though PW6-a superior officer was present in the team, it was PW5 who conducted the search and seized the contraband. After completing the formalities, a report under Section 57 of the NDPS Act was also seen forwarded to PW6 though he was also present along with PW5 throughout the search and seizure. In the mahazar also, it is not stated who was the leader of the team conducting the search though it bears signature of both PW5 and PW6. No search list was seen prepared, though PW5 contended that they went to that lodge for conducting search. 28. PW6, the superior officer, deposed before court that, heroin was not weighed separately since it cannot be separated from the packet. But, according to PW5, he opened that packet and weighed the heroin which was found to be 790gms, from which 5gms each were taken in separate polythene cover and packed and sealed as sample packets. So, their testimony is contradicting each other. 29. But, according to PW5, he opened that packet and weighed the heroin which was found to be 790gms, from which 5gms each were taken in separate polythene cover and packed and sealed as sample packets. So, their testimony is contradicting each other. 29. PW5 would say that, A1 and A2 were present in room No.102 of Ellickal lodge and they were found in possession of 790gms of heroin. But they were not arrested at the lodge and they were brought to the NCB office where their statements were recorded and only thereafter arrest was recorded at 2 a.m and 3.30 a.m respectively on 08.05.2002. That statement also will contradict the statement of PW6 that the accused were arrested at the lodge itself at the time of seizure. If A1 and A2 were found in room No.102 of Ellickal lodge when PW5 and PW6 conducted search in that room in presence of witnesses, and they were found in possession of 790gms of heroin, there was no reason for not arresting them then and there. That also casts a serious doubt regarding the genuineness of the prosecution case. According to the appellant, he was taken into custody by the officials on 06.05.2002 and after taking him to the NCB office, he was asked to sign some papers and he was never arrested from Ellickal lodge, no contraband article was recovered from him. 30. The Manager of Ellickal lodge was a witness in Ext.P6 mahazar alleged to have been prepared in room No.102 of Ellickal lodge. But, curiously enough he is a witness in Exts.P15 and P16 arrest memo of accused Nos.1 and 2 admittedly prepared by PW5 at the NCB office during that night at 2 a.m and 3.30 a.m respectively. That fact will create a doubt as to the place where Ext.P6 mahazar was prepared. Normally we cannot expect a person who signed the mahazar at his lodge at 9 p.m, to be present before the NCB office to sign the arrest memo prepared after midnight. That also is a reason to think that the case put forward by the appellant cannot be discarded in toto. He examined DW1 to say that the appellant was taken into custody by NCB officials on 06.05.2002. That also is a reason to think that the case put forward by the appellant cannot be discarded in toto. He examined DW1 to say that the appellant was taken into custody by NCB officials on 06.05.2002. Though he is a relative of the appellant, his testimony is sufficient enough to create inroads into the genuineness of the prosecution case, when the attending circumstances are also taken into account. 31. Exts.P11 and P12 are the summons under Section 67 of the NDPS Act, issued to accused Nos.1 and 2 by PW5. Ext.P11 the summons issued to 1st accused reads thus: “Whereas I, M.K. Unnikrishna Pillai, Intelligence Officer, Narcotics Control Bureau, Regional Intelligence Unit, Trivandrum, duly empowered in the prevention of illicit trafficking in narcotic drugs and psychotropic substances, consider the attendance of Sri.Jalaluddin A, Slo.Late Ahmed Khan, R/o Bismi House, TC 35/1064, Gandhi Nagar, Vallakkadavu, Trivandrum necessary for giving evidence and/or producing documents in respect of an enquiry being made by me in connection with the alleged trafficking and seizure of 790 grams of Heroin on 07.05.2002 from Room No.102 of Ellyckal towers, Fort, Trivandrum. Now, therefore, in exercise of the powers conferred on me under section 67 of the N.D.P.S. Act, 1985, I hereby summon you to appear before me in person at Room No.102, Ellyckal Towers lodge, Fort, Trivandrum, on the 7th of May 2002 at 9.30 PM. You are not to leave the Bureau Camp office without permission. Issued at Trivandrum this the 07th day of May 2002”. 32. As per Ext.P11 summons, the appellant was summoned to appear before PW5 in person, at room No.102 of Ellickal Towers lodge, Fort, Trivandrum on the 7th of May 2002 at 9.30 p.m. That summons is dated 07.05.2002. The prosecution case is that, on 07.05.2002 at 7 p.m, PW5 and PW6 along with NCB team reached Ellickal lodge, on getting secret information that the accused persons were staying there possessing 1kg of heroin for the purpose of sale. They conducted search and seized 790gms of heroin from them, prepared mahazar, took the accused persons along with the records and the contraband to NCB office etc. etc. In that circumstance, what was the scope of summons asking them to appear in person at room No.102 of Ellickal lodge at 9.30 p.m., is not explained either by PW5 or by PW6. etc. In that circumstance, what was the scope of summons asking them to appear in person at room No.102 of Ellickal lodge at 9.30 p.m., is not explained either by PW5 or by PW6. If the appellant was very much present in room No.102, and he was under the surveillance of PWs 5 and 6 from 7 p.m onwards, if at all he was not arrested, there was no reason to summon him to appear in person in that room itself, at 9.30 p.m. According to PW5, the accused as well as the officials were all present in that room till the accused were taken to the NCB office after completing all the legal formalities. That also supports the case of the appellant that he was never taken into custody from Ellickal lodge. If he was present in room No.102 of Ellickal lodge possessing 790gms of heroin, there was no reason for PW5 for not arresting him from the spot. The fact that the accused was not arrested from the spot even after he was found in possession of 790gms of brown sugar is a strong ground to suspect the genuineness of the prosecution case. The testimony of PW5 and PW6 are contradicting each other in very many material aspects, and it cannot be said that their evidence is blemishless and trustworthy. PW4, the independent witness did not support the prosecution case also. 33. According to PW5, apart from PW6, three more officials were present along with them in the team of search, but none of them were made witnesses in any of the documents prepared at the spot. That will create a doubt as to whether any such officials were present in the team which conducted the search. It will support the case of the appellant that no search or seizure was conducted in Ellickal lodge and he was taken to NCB office where he was asked to sign some papers and he was falsely implicated in a case like this. 34. As held by the Apex Court in Mohan Lal v. State of Punjab [ 2018 (4) KHC 387 ], ‘unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under S.35 and S.54. 34. As held by the Apex Court in Mohan Lal v. State of Punjab [ 2018 (4) KHC 387 ], ‘unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under S.35 and S.54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. S.35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as S.37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities. A fair trial to an accused, a constitutional guarantee under Art.21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided’. 35. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided’. 35. In Babubhai v. State of Gujarat [2010 KHC 4608], the Apex Court held that the investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer "is not to bolster up a prosecution case with such evidence as may enable the Court to record conviction but to bring out the real unvarnished truth”. 36. On an anxious consideration of the entire facts and evidence, this Court is of the view that the trial court went wrong in finding the appellant guilty under Section 8(c) read with Section 21(c) of the NDPS Act. The reasons detailed in the foregoing paragraphs are sufficient enough to doubt the genuineness of the prosecution case. The violation of statutory mandates under Section 42(1) and 42(2) will definitely vitiate the trial. So, this Court is inclined to allow this appeal so as to set aside his conviction and sentence under Section 8(c) read with Section 21(c) of the NDPS Act. The appellant is acquitted and he is set at liberty forthwith. His bail bond will stand cancelled. Hence the appeal stands allowed. The valid assistance given by learned Amicus Curiae Adv.Sri.P.Rakesh Thamban is placed on record.