JUDGMENT : T.R.RAVI, J. This appeal is filed by the 1 st accused, against the conviction and sentence imposed on him for an offence under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act). The prosecution case is that the appellant was found in possession of 10 Kg and 320 grams of ganja, at house No.IV/802 at Therthalli in Alakkode Panchayat, where he was residing on rent. The house belonged to one Karukayil Marykutty. According to the prosecution, the Circle Inspector, Alakkode received information that ganja was kept in the house, and he proceeded with a police party to conduct a search. It is alleged that on 4.9.2003 at 5.30 a.m., the police party reached the house and found two persons sitting in the visitors' room. It is further alleged that a plastic bag with ganja kept in the room, was seized by the Circle Inspector, and the two persons were arrested. 2. During the trial, the owner of the house was examined to prove that the accused was in possession and control of the house from where the ganja was recovered. Exts.P6 and P7 documents were marked through her. Ext.P6 is a Kychit which shows that the house had been taken on lease and the lease period ended on 2.9.2003. In order to justify the appellant’s possession on 4.9.2003, Ext.P7 dated 17.11.2003 is relied upon, which is a document that says that the lease period was extended. PW5 is the Detecting Officer, Circle Inspector of Police, Alakkode. He has deposed that after recording the information that ganja is kept in the house, he sent a report under Section 42 of the N.D.P.S. Act. 3. The trial court accepted the statement of the owner of the house and found that the accused was occupying the house for 11 months after the expiry of the period of lease specified in Ext.P6, and that he had vacated the premises only on 16.5.2004. The court held that the wife of the appellant had admitted Exts.P6 and P7 documents while she was examined as a defence witness, though she had specifically stated that Ext.P7 was executed by her and her husband, as instructed by the Circle Inspector. The court observed that she did not have a case that the Circle Inspector had threatened or compelled her or her husband to execute such an agreement. 4. The court observed that she did not have a case that the Circle Inspector had threatened or compelled her or her husband to execute such an agreement. 4. Regarding the seizure of Ganja, reliance is placed by the Court on the evidence of PW1 and PW3, who are stated to be independent witnesses to the seizure made by PW5, and the evidence of PW11 and PW6, the Sub Inspector and the Assistant Sub Inspector, respectively. According to PW1 and PW3, they had gone to the house as requested by the police party, and on reaching the courtyard of the house, they saw the accused standing there. They also state that they saw a packet containing something at the corner of the courtyard. They admit their signature in Ext.P1 search list. On the above evidence, the court concluded that PW1 and PW3 had witnessed the search of the house where the first accused was residing on rent, and the seizure of a huge quantity of Ganja. The witnesses, however, turned hostile, when examined in the Court. The court found that there is no satisfactory evidence to implicate the 2 nd accused, or to prove his complicity in the possession of a huge quantity of Ganja by the first accused, except that the 2 nd accused was seen in the house when the police party reached there. The court observed that there is no satisfactory explanation as to why the 2 nd accused happened to be in the house of the appellant at about 4.30 A.M. or why they were sitting in the visitors' room at that time or what they had been planning or talking about at that time. The Court found that the mere absence of explanation for the presence cannot be a reason to find the 2 nd accused guilty. 5. Heard the Senior Counsel appearing for the appellant/1 st accused and the Public Prosecutor, and I have perused the evidence on record. There are several unconvincing and unexplained factors in the evidence on record which seriously vitiates the conclusions arrived at by the trial court, and they are as follows. 6. Firstly , it is difficult to accept the evidence of the owner of the house regarding the appellant’s absolute possession of the house. There are several unconvincing and unexplained factors in the evidence on record which seriously vitiates the conclusions arrived at by the trial court, and they are as follows. 6. Firstly , it is difficult to accept the evidence of the owner of the house regarding the appellant’s absolute possession of the house. The owner who was examined as PW4 states that an agreement for sale of the house had been entered into on 24.06.2003 and it is thereafter that Ext.P6 rent deed was executed. It is admitted that the rent deed was for a period of two months by which time the accused was expected to pay the consideration and take the sale. It is admitted that the agreement for sale failed and that she had disputes with the 1 st accused, on that account. According to PW4, the wife of the 1 st accused had given in writing that the sale cannot happen in view of the criminal case. PW4 further states that the period stated in the agreement for sale ended on 30.8.2003. The above evidence would only be sufficient to prove possession for the period after the expiry of the lease period. Unless further possession based on Ext.P7 can be satisfactorily held to be proved, it is difficult to accept the prosecution case and also to justify the non-inclusion of the owner of the house as an accused. Coming to Ext.P7, PW5 says that it was seized from the house. However, there is no seizure mahazar to support this statement. The document could not have been seized simultaneously with the seizure of the Ganja, since it is dated 17.11.2003, much after the alleged occurrence of the crime. Even Ext.P6 document was not seized at the time of search and was produced by PW14 later during the progress of the investigation. There is no case for the prosecution that a further search was conducted after 04.09.2003. The oral evidence of PW5 is totally unconvincing regarding the seizure of Ext.P7. Moreover, Ext.P7 is a document which has come into existence after the crime and no reliance can be placed on the said document to prove the occupation of the appellant after 02.09.2003. There is no case for the prosecution that a further search was conducted after 04.09.2003. The oral evidence of PW5 is totally unconvincing regarding the seizure of Ext.P7. Moreover, Ext.P7 is a document which has come into existence after the crime and no reliance can be placed on the said document to prove the occupation of the appellant after 02.09.2003. Apart from that, since the appellant had already been implicated in a crime on 04.09.2003, it is unbelievable that PW4 had agreed to extend the period of lease by executing Ext.P7 document for a further period till 16.05.2004. Ext.P7 purports to have been executed by the appellant, his wife and the mother of his wife and hence cannot also be a continuation of Ext.P6. Ext.P7 can hence not be accepted as a convincing evidence to show the possession of the accused. PW13, the Circle Inspector who had investigated, had admitted in cross-examination that Ext.P7 was recovered after the incident. A reading of Ext.P7 only shows that a lease was granted from 17.11.2003. The above evidence also does not support the prosecution case. 7. Secondly , PW5 while examined states that the wife and children of the 1 st accused were present in the house at the time of search. The above contention at the time of evidence, was apparently to make it appear that the 1 st accused was residing in the house. However, the above statement is not supported by the evidence on record. Ext.P1 search list, which necessarily must have been prepared immediately after the search, does not show the presence of the wife and children of the accused in the house. The FIR does not say that at the time of search the wife and children were present. It is not stated in the FIR that Women Police personnel were present at the time of search. The Sub Inspector of Police examined as PW11, however, says that Women Police Officers were there in the search party, but that he does not remember how many of them were there. He also says that there was nobody other than the first accused in the house. PW12, Circle Inspector of Police, has stated that the mahazar witnesses are not persons who were residing nearby and the mahazar does not state about anybody else residing in the house. He also says that there was nobody other than the first accused in the house. PW12, Circle Inspector of Police, has stated that the mahazar witnesses are not persons who were residing nearby and the mahazar does not state about anybody else residing in the house. Ext.P10 report also does not state about the presence of the wife and children of the appellant at the time of search. 8. The third aspect is regarding the compliance with the requirements of Section 42 of NDPS Act. Section 42 reads thus; “ S.42. Ext.P10 report also does not state about the presence of the wife and children of the appellant at the time of search. 8. The third aspect is regarding the compliance with the requirements of Section 42 of NDPS Act. Section 42 reads thus; “ S.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.” Going by the provision, the officer should have reason to believe, either from personal knowledge or from information given by any person and taken down in writing, regarding the concealment of a narcotic substance liable for seizure, freezing or forfeiture. If a search is conducted based on information received, such information has to be taken down in writing. PW5 says that he proceeded to search on receipt of information. It is admitted that Ext.P1 does not show the source of the information. According to PW5, the source of information had been stated in the FIR and the general diary and Ext.P9 which purports to be the Section 42 report dated 4.9.2003. Admittedly, the time when the information was received has also not been recorded. What is recorded in the FIR is the time when the search was conducted. He further admits that there is no seal, initial or date to evidence the receipt of Ext.P9 report in the Magistrate's Court. Admittedly, Ext.P9 report does not say that the information had been recorded in the general diary. It is also admitted that no seal, initial or date is available to evidence the receipt of Ext.P14 in the court. Ext.P16 GD extract was admittedly submitted before the court only on 16.09.2003. He further admits that the reason for going for a search without a search warrant has not been specified in Ext.P9. He states that he did not remember the name of the Police Constable with whom Section 42 report was forwarded to the Dy.S.P. and the search memo was forwarded to the court. He also says that Superior Officer was not informed regarding the search during night. The evidence on record would clearly show that there is no compliance with the requirements of Section 42 , regarding the recording of the information received, the grounds for belief regarding the occurrence of the crime and informing the superior officer about the above facts. So also Exts. P9 and P10 reports were not initially produced along with the final report. The same were produced only after the final report was returned. So also Exts. P9 and P10 reports were not initially produced along with the final report. The same were produced only after the final report was returned. The appellant has a case that copies of the report were not supplied to him as required under Section 207 of the Code of Criminal Procedure. It is further evident that there is no proper mahazar prepared and Ext.P1 is only a property list. 9. Fourthly , there is also inconsistency in the evidence regarding the time of arrest since the FIR says it as at 05.30 a.m., while the arrest memo says it as at 05.50 a.m. According to PW1, who is the brother of the owner of the house, the time of occurrence was about 01.00 a.m. in the morning. Fifthly , there is nothing in the evidence regarding the manner of deposit of the seized articles in court. The Malkana Register was not produced. The Station House Officer was not examined. The staff through whom the contraband was sent to the court was not even made a witness in the case and not examined. Ext.P22 property list would show that the seized articles reached the court only on 08.09.2003. There is no explanation as to where the seized articles were between 04.09.2003 and 08.09.2003. In Mohanlal v. State of Punjab [ (2018) 17 SCC 627 ] , the Hon’ble Supreme Court has emphasised on the importance of deposit of the seized articles. In the judgment in Narayani v. Excise Inspector [ 2002 (3) KLT 725 ] , the court has held that the contraband, till it reached the court, has to be shown to have been kept in proper custody. Sixthly , the samples of the contraband were not produced before the court by the prosecution at the time of evidence, as was required. Seventhly though the search was between sunset and sunrise, the Police Officer has not recorded the reason for not obtaining a search warrant. Eighthly , though PW5 stated that he had prepared Exhibit P14 search memo and sent it to the Magistrate, the same was not received in the Magistrate Court. Ninthly , though in order to prove that Exhibits P9 and P10 reports were received in time, PW15 Dy.S.P. was examined, no document has been produced to show the receipt of the reports. Ninthly , though in order to prove that Exhibits P9 and P10 reports were received in time, PW15 Dy.S.P. was examined, no document has been produced to show the receipt of the reports. The number of the P.C. mentioned in the dispatch register also does not tally with the version of PW5. 10. Apart from the above inconsistencies, another contention of the Senior Counsel for the appellant is that in the case on hand, there was no separate arrest memo prepared as required under Section 42 of the NDPS Act and grounds of arrest are also not mentioned. 11. In Karnail Singh v. State of Haryana [(2009) 8 SCC 539] , the Hon’ble Supreme Court considered the necessity of compliance with the requirements of Section 42 of the Act. The Court held thus. “35. In conclusion, what is to be noticed is that Abdul Rashid [ (2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42 (1) and 42(2) nor did Sajan Abraham [ (2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42 (1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42 ] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42 (1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 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. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42 . To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42 . But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” 12. In State of W.B. v. Babu Chakraborthy , [(2004) 12 SCC 201] , the Hon’ble Supreme Court held thus “16. We have given our thoughtful consideration to the submissions made by both the learned counsel appearing on either side on facts and also on law. In the instant case, the respondent was charged for the offence under Section 21 of the Act for the illegal possession of 3 gm and 25 mg of diacetyl morphine, which is commonly known as heroin in contravention of Section 8(c) of the Act. In the instant case, the respondent was charged for the offence under Section 21 of the Act for the illegal possession of 3 gm and 25 mg of diacetyl morphine, which is commonly known as heroin in contravention of Section 8(c) of the Act. The case of the prosecution was that PW 4 Additional SP, received secret information and to work out the secret information, he along with PW 2 S.K. Dutta, went to the house of the respondent on 5-5-1989 and conducted a search of the house of the accused. What is important to notice is that the information was not taken down in writing, as required under law and as rightly contended by the learned counsel for the respondent. The search conducted at 9.45 p.m. after sunset and before sunrise was without complying with the proviso to Section 42 (1).......” 13. A learned Single Judge of this Court, relying of the judgments of the Hon’ble Supreme Court in Thundiyil Muhammadali v. State of Kerala [2020 SCC OnLine Ker 2521] held that if no evidence is led by the prosecution regarding the compliance of the mandatory requirements of Section 42 of the Act, the court will be entitled to draw a presumption that the procedure has not been complied with. It was held that there can be no presumption of compliance of Section 42 of the NDPS Act, without there being any evidence adduced by the prosecution. Reference was made to the judgment of this Court in Thulaseedharan v. State of Kerala [ 2002 (2) KLT 69 ] , to hold that the receipt of a Section 42 report would, to so some extent, ensure that the empowered officer does not misuse the power and make search and seizure only in genuine cases, that compliance with the section is mandatory and that the prosecution should adduce evidence to prove the compliance. The court in the above said case held that if compliance of Section 42 (2) is not put to the accused under Section 313 Cr.P.C., the same cannot be relied upon by the Court to convict the accused. 14. The court in the above said case held that if compliance of Section 42 (2) is not put to the accused under Section 313 Cr.P.C., the same cannot be relied upon by the Court to convict the accused. 14. The counsel for the appellant also raised a contention that Ext.P24 chemical analysis report does not show that the flowering and fruiting tops of the cannabis plant were seized from the possession of the appellant and going by the definition of 'cannabis' in Section 2(3) of the NDPS Act, the appellant cannot be prosecuted successfully, as has been held in Sivadasan v. State [ 2003 (3) KLT 100 ] . I find on going through Ext.P24 that there is reference to flowering and fruiting tops and hence there is no scope for applying the dictum laid down in the above case, to the facts of this case. I do not think it is necessary to go into the above aspects, in view of the serious discrepancies in the evidence on record. In the light of the inconsistencies in the evidence narrated in paragraphs 6 to 9 above and the law laid down in the above referred cases, the trial court went wrong in finding that the prosecution has succeeded in establishing the guilt of the appellant. The appellant is hence entitled to succeed. The appeal is allowed and the conviction and sentence ordered by the trial court are set aside.