JUDGEMENT 1. This Appeal has been directed against judgment dated 20.07.2018 passed by learned Principal Sessions Judge Pulwama (for short 'the trial court'), vide which respondent has been acquitted of the charges for offences under Sections 8/20 of the Narcotic Drugs And Psychotropic Substance Act 1985 ('NDPS Act', for short). 2. Before a closer look at the grounds urged in the memo of Appeal, it shall be apt to have an overview of the background facts. 3. Case of the appellant-State, prosecution in the trial court, is that on 27.12.2008, a police party of Police Station Awantipora, during routine checking at village Laddermad Pulwama, spotted a person in suspicious circumstances, who, on seeing the police party, made an attempt to give a slip, however, he was followed and overpowered by the patrolling party. On a personal search, he was found carrying a polythene bag containing 'charas' weighing 01 kg. Accordingly, Incharge of the patrolling party, ASI Soleh Rehman dispatched a docket through Constable Tariq Ahmad to Police Station Awantipora. SDPO and SHO were informed about the occurrence. On receipt of this docket, investigation came into vogue, which culminated into final report in terms of Section 173 CrPC against the accused/respondent for the aforesaid offences. 4. Respondent was charged by the trial court on 04.04.2009, whereby he pleaded innocence and claimed trial, which prompted the trial court to ask for the prosecution evidence and prosecution examined five witnesses. 5. On culmination of the prosecution evidence, statement of the respondent-accused, in terms of Section 342 CrPC was reduced into writing, whereby he denied the incriminating imputations arrogated to him in the statement of prosecution witnesses and refused to enter the defence. 6. On appreciation of the prosecution evidence, learned trial court not only found the prosecution evidence discrepant on material aspects but also observed that mandatory provisions of NDPS Act have been observed in breach. Learned trial court also expressed its displeasure about the standard of investigation carried out in the present case and therefore, respondent came to be acquitted of the charges. 7. Appellant-State has questioned the impugned judgment primarily on the conventional premise that respondent has been acquitted by the trial court despite sufficient material on record to sustain conviction, and that learned trial court has failed to appreciate the prosecution evidence in right perspective. 8. 7. Appellant-State has questioned the impugned judgment primarily on the conventional premise that respondent has been acquitted by the trial court despite sufficient material on record to sustain conviction, and that learned trial court has failed to appreciate the prosecution evidence in right perspective. 8. Having heard the rival contentions and perused the record, I do not find any illegality or impropriety in the impugned judgment for the following reasons. 9. Instead of giving a detailed resume of the statements of prosecution witnesses, it is proposed to refer to the relevant part of their testimonies as, when and where required. Infringement of Section 55 of NDPS Act 10. At the foremost, prosecution has failed to prove that contraband recovered in the present case was kept in safe custody and forwarded to FSL in accordance with law and without any delay. It is pertinent to note that in view of stringent provisions regarding punishment and grant of bail, the legislature in its wisdom enacted section 55 of the NDPS Act to ensure that officer Incharge of Police Station shall immediately take charge and keep the alleged contraband in safe custody, in order to rule out any possibility of tampering with the contraband. Prosecution is obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register. The prosecution is also obliged to prove that said sample of the contraband was forwarded to FSL without any delay. 11. Chhattisgarh High Court in Ganga Bhai v. State of M.P. reported as 2012 (4) Crimes (HC) 687 in a similar fact situation has made following observation in this respect: “30. After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non compliance of the provisions of Sections 52 and 55 of the Act, 1985. Neither delay in delivering the sample at FSL has been explained nor the Malkhana Register was produced in evidence. The prosecution did not examine the officer-in-charge of Malkhana, Station House Officer and Constable 302 Shyam Sunder Chandrakar. Therefore, the report of FSl (Ex. P8) cannot form basis of conviction of the appellant under Section 20B of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside.” 12. The prosecution did not examine the officer-in-charge of Malkhana, Station House Officer and Constable 302 Shyam Sunder Chandrakar. Therefore, the report of FSl (Ex. P8) cannot form basis of conviction of the appellant under Section 20B of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside.” 12. Similarly, in Prem Shahi v. State of Uttarakhand reported as (2013) Supreme (UK) 162, Uttarakhand High Court has also held as below: “Having perused the contents of Section 55 of the NDPS Act, I have no hesitation to hold that contraband, so recovered from the accused, shall be forwarded to the officer Incharge of the police station; who shall put the contraband and sample seal in a safe custody and shall affix his seal to such articles before keeping them in the Malkhana. Section 55 further authorizes Incharge of the police station to permit the Investigating Officer or any other officer to take sample of the contraband in the presence of Incharge of the police station and affix his own seal on the sample, so drawn as well as on the packet, wherein rest of the contraband, is kept, after taking the sample.” 13. Identical view has been taken in [1]State of Rajasthan v. Tara Singh reported as 2011 (3) SCR 1112 , in which High Court of Rajasthan dealing with the import and significance of Section 55 of NDPS Act, has held in the following manner: “4. xxx xxx xxx We must emphasize that in a prosecution relating to the Act the question as to how and where the samples had been stored or as to when they had dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters.” 14. Reverting to the present case, it is surprising to note that Investigating Agency, in the present case has not even cited Incharge Malkhana, as a prosecution witness. The Prosecution neither examined Incharge Malkhana, to establish safe custody of the contraband recovered and seized in the present case nor Executive Magistrate 1st Class, from whom contraband in question, stated to have been seized by the Investigating Agency, were got re-sealed. It is also pertinent to mention that, no authority letter of the Executive Magistrate, to authorize Forensic experts to break open the seal and examine the contraband, was found on record. 15. It is also pertinent to mention that, no authority letter of the Executive Magistrate, to authorize Forensic experts to break open the seal and examine the contraband, was found on record. 15. Hon'ble Supreme Court in [2]State of Rajasthan v. Gurmail Singh reported as AIR 2005 SC 1578 has held that if the link evidence adduced by the prosecution is not satisfactory and Malkhana Register is not produced to prove that contraband was kept in the safe custody of the Malkhana and further that if no sample of seal is sent along with samples to the Chemical Analyst, the prosecution case can be viewed doubtful. The relevant extract of the judgment has been culled out below as a ready reference: “We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.” 16. A similar view has been expressed by the Apex Court in [3]State of Rajasthan v. Daulat Ram reported as AIR 1980 SC 1314 . 17. Similarly, in Prem Shahi v. State of Uttarakhand reported as (2013) Supreme (UK) 162, Uttarakhand High Court has also held as below: “Having perused the contents of Section 55 of the NDPS Act, I have no hesitation to hold that contraband, so recovered from the accused, shall be forwarded to the officer Incharge of the police station; who shall put the contraband and sample seal in a safe custody and shall affix his seal to such articles before keeping them in the Malkhana. Section 55 further authorizes Incharge of the police station to permit the Investigating Officer or any other officer to take sample of the contraband in the presence of Incharge of the police station and affix his own seal on the sample, so drawn as well as on the packet, wherein rest of the contraband, is kept, after taking the sample.” 18. The inevitable effect of infraction of these mandatory provisions of the NDPS Act, is that prosecution has failed to rule out the possibility of the samples being changed or tampered with. The prosecution, in the present case, has failed to prove that right from the stage of seizure of the contraband to the stage of handing over samples to the public analyst, samples remained in safe custody and were got properly re-sealed and also that seals remained intact. This is a serious infraction of Sections 52 and 55 of the NDPS Act, hence, vitiates the trial. Infraction of Section 42 of NDPS Act 19. One of the salutary provisions, investigating officer is bound to follow is that he is obliged to reduce the information received by him into writing and forwarding a copy thereof to his immediate superior officer within 72 hours. Section 42 of the NDPS Act mandates compliance of the requirements contained therein, i.e. if the officer has reason to believe from personal knowledge or information received by him from any person which is required to be taken down in writing that any drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed, he is empowered to exercise his power enumerated in clauses (a) and (b) of sub Section 1 of Section 42 of the NDPS Act between sun rise and sun set, subject to just exceptions. It is manifest, as such, that taking down of information in writing is necessarily to be complied with. The proviso appended to sub section (1) of Section 42 of the NDPS Act provides that if such officer has reason to believe that search warrant or authorization 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 sun set and sun rise after recording the grounds of his belief. Further sub-section (2) of Section 42 of the NDPS Act lays down that where an officer takes down any information in writing under sub-section (1) or records grounds of his belief under the proviso thereto, he shall within 72 hours send a copy of the same to his immediate superior officer. 20. Reverting to the present case, as per the docket, SDPO and SHO were informed about the occurrence, however, neither SDPO nor SHO have been examined in the case and Investigating Officer has not appeared in the witness box to explain as to whether information received by him was reduced in writing and copy of the same was handed over to his immediate officer within 72 hours in terms of Section 42 of NDPS Act. 21. Hon'ble Supreme Court in Karnail Singh v. State of Haryana reported as [4][ (2000) 2 SCC 513 ], commenting upon the import of Section 42(2) of the NDPS Act has clearly ruled that: “Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section.” 22. A similar view has been expressed by Hon'ble Supreme Court in 2009 AIR (Criminal) 401 SC. 23. It is manifest from the afore-quoted case law that non-compliance of Section 42 of NDPS Act goes to the very root of the Prosecution case. FSL report not proved 24. The most vital flaw in the prosecution case is failure on the part of the prosecuting agency to examine the Scientific Officer of Forensic Science Laboratory, who is stated to have examined the substance recovered in the present case. FSL report not proved 24. The most vital flaw in the prosecution case is failure on the part of the prosecuting agency to examine the Scientific Officer of Forensic Science Laboratory, who is stated to have examined the substance recovered in the present case. It goes without saying that FSL report forms the very foundation of a case under NDPS Act and a case under NDPS Act can only survive if prosecution succeeds to establish during the trial that the substance recovered during investigation is indeed a contraband. 25. A similar view has been taken by the coordinate Bench of this Court in [5]Umer Yousuf Rather Vs. UT of J&K & Ors. CrlR No. 10/2022. Relevant observation captured in Para-14 of the judgment reads as below:- “14. I am afraid the argument of learned counsel for the petitioner is not tenable. Opinion of the FSL in a case relating to recovery of contraband substance is of paramount importance. Unless it is opined by the expert that the substance recovered from the accused falls within the definition of contraband substances, the accused cannot be prosecuted. Therefore, the submission of FSL report with the challan in a case relating to offences under NDPS Act is not an idle formality. In fact, the whole case of the prosecution hinges on the report of the FSL.” 26. In view of the above, since prosecution, in the present case, has failed to examine the Chemical Analyst during the trial to establish that the substance recovered is indeed a contraband, therefore, the prosecution case is bound to collapse on this count alone. FIR not proved 27. Another vital aspect of the present case is failure on the part of prosecution to prove basic documents, which set the investigating agency into motion. As per the prosecution case the Incharge of patrolling party-ASI Soleh Rehman dispatched a docket through Constable Tariq Ahmad of Police Station Awantipora for registration of FIR. PW-Soleh Rehman has not been examined during the trial to prove the docket and consequent FIR registered in the present case. Failure on the part of the prosecution to examine the author of the docket and to prove FIR, proves fatal to the entire prosecution case. Contradictions 28. Finally the prosecution evidence being replete with serious contradictions and discrepancies, does not inspire confidence. 29. PW-Constable Zameer Ahmad has stated that occurrence took place during the evening hours. Failure on the part of the prosecution to examine the author of the docket and to prove FIR, proves fatal to the entire prosecution case. Contradictions 28. Finally the prosecution evidence being replete with serious contradictions and discrepancies, does not inspire confidence. 29. PW-Constable Zameer Ahmad has stated that occurrence took place during the evening hours. However, PW Sandeep Saproo has stated that occurrence took place between 11:30 AM to 12:00 PM and no proceedings were conducted in his presence. This is a serious contradiction in the statement of material witnesses with respect to time of occurrence, which creates serious doubt about the veracity of the prosecution case. 30. Again, PW-Constable Tariq Ahmad is one of the members of patrolling party and is obviously an eye-witness cited by the prosecution. However, he has stated that contraband was not weighed in his presence. PW-Sandeep Saproo, another eye-witness cited by the prosecution, has not stated anything about the seizure of the contraband and he went on to say that no proceedings with respect to weighing the seized contraband, were conducted on the spot. PW-Hilal Ahmad Bhat, is a prosecution witness, from whom the weighing balance was obtained by the Investigation Agency and this witness stated that his signatures were taken on a blank paper. 31. It is pertinent to underline that prosecution witnesses, who have contradicted each other on material aspects of the case, are none other than the police personnels. The discrepancies could have been ignored if such witnesses were among the common masses or rustic villagers. However, the contradictions, afore-noted, have come to fore from the mouth of trained police officials, who are supposed to know the consequences of the testimonies made in the courts. Conclusion 32. For what have been observed and discussed above, it is clear that the prosecution evidence, in the present case, is not only replete with material contradictions and discrepancies but mandatory provisions of NDPS Act have been observed in breach by the Investigating Agency. 33. Viewed from any angle, I am not persuaded to take a view different from one taken by the learned trial court. Thus, on consideration, I do not find any merit in the present Appeal, which is accordingly, dismissed, and the impugned judgment recorded by the learned trial court, being lucid and well-reasoned, is upheld. 33. Viewed from any angle, I am not persuaded to take a view different from one taken by the learned trial court. Thus, on consideration, I do not find any merit in the present Appeal, which is accordingly, dismissed, and the impugned judgment recorded by the learned trial court, being lucid and well-reasoned, is upheld. Before parting, I concur with the observation made by the learned trial court about the standard of investigation carried out in the present case.