NDPS Act : FIR cannot be Treated as a Report u/s. 57 which is sent to the Superior Officers [Case Law] | First Law

Narcotic Drugs & Psychotropic Substances Act, 1985 - S. 57 - Report of arrest and Seizure - the registration of FIR at the hands of SHO and its communication to the Superintendent of Police would not constitute sufficient compliance of Sec. 42 of the Act - The FIR cannot be treated as a report which is sent to the superior Officers and it is a clear transgression of Sec. 57 of the Narcotic Drugs & Psychotropic Substances Act, 1985. There is certainly violation of Sec. 57 and 42 of the Narcotic Drugs & Psychotropic Substances Act, 1985. 

Narcotic Drugs & Psychotropic Substances Act, 1985 - Ss. 8, 18, 42, 53 & 57 - Serious doubt as to whether the contraband article was kept in safe custody and whether the same article which was seized, was sent to the Laboratory for chemical analysis, the benefit has to be given to the accused. 

Narcotic Drugs & Psychotropic Substances Act, 1985 - Ss. 52 & 53 - Disposal of persons arrested and articles seized - Power to invest officers of certain departments with powers of an officer-in-charge of a police station - Compliance of Sec. 52 and Sec. 53 has to be done in a case under the Act of 1985 and it is mandatory in nature. 

Narcotic Drugs & Psychotropic Substances Act, 1985 - Chemical Examination - Delay - there was a delay also in sending the contraband for chemical examination and it was the duty of the prosecution to explain the delay and it was the burden upon the prosecution to prove that during the period where and in what condition the material was kept, whether it was duly sealed and it is the same material which was forwarded for the chemical examination.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

S.B.: HON'BLE MR. S. C. SHARMA, J

26/03/2018

CRIMINAL APPEAL No. 960 / 1998

UNION OF INDIA THROUGH CENTRAL BUREAU OF NARCOTICS, NEEMUCH

Vs.

SUCHCHASINGH S/O BHAGATSINGH

J U D G M E N T

The present appeal, under Section 378(4) of the Code of Criminal Procedure, 1973 has been filed by the Union of India through Central Bureau of Narcotics, Neemuch against the judgment dated 24/12/1997 passed by the 2nd Additional Sessions Judge, Neemuch in Sessions Trial No. 60/1990. The respondent has been acquitted from the charge under Section 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

2. Facts of the case reveal that on 28/7/1989, at about 7:45 pm., near Bhavsara Fata, the respondent – Suchchasingh was driving a Truck bearing registration No. MBV 5680 and the Truck was intercepted. Mr. Ranjan Pradhan, Assistant Narcotics Commissioner, Prevention Cell, along with Driver Lalchand, Sub Inspector D. K. Nagarkar and Inspector P. Ibrahim who were on patrolling duty and were returning from Gwalior, intercepted the Truck which was standing and in presence of witnesses Balveer Singh and Babulal a search was carried out. In the Truck, Driver Suchchasingh and its cleaner Manohar were present. While the search was going on, the Driver Suchchasingh took out a green polythene and threw it at the back seat. The green polythene was opened in front of witnesses and it was containing opium. The Truck Driver as well as the cleaner were arrested and even the owner of the truck was made an accused.

3. Ranjeet Singh, the owner of the Truck and Manoharlal, the cleaner of the Truck preferred a revision against framing of the charge and in Criminal Revision No. 95/1990, they were discharged by this Court. The charges were framed against the present respondent. The contraband was seized, sealed and statement of Suchachasingh and Manoharlal were recorded and thereafter a Panchnama was prepared.

4. On 28/8/1989 Sub Inspector D.K. Nagarkar lodged FIR and on 29/8/1989 one Malecha was appointed as Investigating Officer and the Investigating Officer recorded statement of the witnesses u/S. 161 of the Code of Criminal Procedure, 1973 and thereafter charges were framed and after holding the trial, the trial Court has acquitted the respondent herein.

5. Learned counsel for the appellant – Union of India has argued before this Court that the Court below has erred in law and facts in holding that the evidence of Ranjan Pradhan, Asstt. Commissioner, Narcotics (PW 5) and D. K. Nagarkar, Sub Inspector (PW 3) is having contradictions on material points and the consequential view of holding the seizure proceedings to be doubtful, is also incorrect on the part of the Court below. He has vehemently argued that the Court below has also erred in law in creating a doubt over the seizure panchnama only on the ground that it does not mention the fact from where the opium was seized. He has stated that there was a panchnama signed by the independent witnesses, opium was recovered, the prescribed procedure was duly followed and, therefore, the impugned judgment deserves to be set aside. Another ground has been taken by the learned counsel for the appellant stating that the Court below has not appreciated the evidence in its true perspective about sampling and the report of the analyst and has erred in holding that the prosecution has not proved beyond doubt that the material which was seized and sampled, is the same which was tested by the analyst. He has also argued that the learned Court below has wrongly interpreted Sec. 52 and Sec. 53 of the NDPS Act and even if there is a violation of the aforesaid Sections, they are not of mandatory nature. Further ground raised by the learned counsel for the appellant is that the statement of the accused Ex.P/5, recorded by D. K. Nagarkar Sub-Inspector (PW 3), was admissible in evidence, as it was not recorded by a Police Officer. Another ground has been taken by the learned counsel for the appellant stating that the trial Court has erred in overlooking the fact that the High Court has discharged the co-accused Manoharlal on the ground that as per his (Manoharlal's) statement recorded by D. K. Nagarkar Sub- Inspector (PW 3), Suchchasingh, on seeing the Officials has thrown out a Polythene bag from his pocket and as the coaccused was given a clean-chit, based upon the same statement, the respondent should have been convicted. He has also argued that the learned Court below has not properly appreciated the evidence. He has further argued that keeping in view the statement of witnesses Sub Inspector Kamal Kothari (PW 1), Independent Witness Babulal (PW 2), Sub Inspector D. K. Nagarkar (PW 3), Investigating Officer Malecha (PW 4) and Asstt. Commissioner, Narcotics Ranjan Pradhan (PW 5) and also keeping in view the the fact that the procedure prescribed under the NDPS Act, 1985 has been followed, the respondent deserves to be convicted for an offence u/S. 8/18 of the NDPS Act.

6. Learned counsel for the applicant has placed reliance upon the judgment delivered by the apex Court in the case of State of H.P. Vs. Pawan Kumar reported in 2005 SCC (Cri.) 943 and his contention is that provision of Sec. 50 would not apply in the present case. Heavy reliance has been placed upon paragraph 11 of the aforesaid judgment. Paragraph 11 of the aforesaid judgment reads as under : 

11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

7. Learned counsel for the appellant has further placed reliance upon the judgment delivered by the apex Court in the case of S. Jeevanantham Vs. State through Inspector of Police T.N. reported in 2004 SCC (Cri) 1584 and his contention is that as the investigation was done by the police officer himself and as nothing was pointed out to show that the investigation has caused prejudice or was biased against the accused, and therefore, the investigation was valid and proper. Paragraphs 3 and 4 of the aforesaid judgment reads as under : 

3. In the instant case, PW-8 conducted the search and recovered the contraband article and registered the case and the article seized from the appellant was narcotic drug and the counsel for the appellant could not point out any circumstances by which the investigation caused prejudiced or was biased against the appellant. PW-8 in his official capacity gave the information, registered, the case and as part of his official duty and later investigated the case and filed charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation.

4. The appellants have been rightly convicted by the Special Judge and the High Court was also justified in confirming the conviction and sentence. These appeals are without any merit and are accordingly dismissing.

8. On the other hand, Ms. Anushree Kaushik, learned counsel for the respondent – Suchchasingh has vehemently argued before this Court that even if the statement of witness Sub Inspector Kamal Kothari (PW 1) is taken into account, the respondent was rightly acquitted by the trial Court. She has vehemently argued that the FIR was treated as a report which is sent to the superior officers and it is clear transgression of Sec. 57 of the Act. Section 57 of the NDPS Act, 1985 reads as under : 

57. Report of arrest and seizure - Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight 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.

9. Learned counsel for the respondent has placed reliance upon the judgment delivered in the case of Darshan Singh Vs. State of Haryana reported in (2016) 14 SCC 358 and paragraph 11 of the aforesaid judgment reads as under : 

11. In the above view of the matter, it is not possible for us to accept the submission of the learned Counsel for the Respondent-State, that the registration of the first information report at the hands of the Station House Officer, Police Station Shahar, Panipat and its communication to the Superintendent of Police, Panipat would constitute sufficient compliance of the mandate of Section 42 of the NDPS Act.

10. In the light of the aforesaid, it can be safely concluded that the registration of FIR at the hands of SHO and its communication to the Superintendent of Police would not constitute sufficient compliance of Sec. 42 of the Act.

11. Learned counsel for the respondent has also drawn attention of this Court towards the material contradictions in the statement of the prosecution witnesses, with specific reference to paragraphs 11 and 13 of the trial Court judgment. The following are the material contradictions in the statements : 

A. As to the quantity of packets : 

(a) PW/1 states that 2 packets of 24 grams each were seized 

(b) PW/2 states the same 

(c) PW/3 search and seizure officer says that only one packet of 24 grams out of total 150 grams was seized.

B. As to the place where the contraband article was found: 

(a) PW/1 who claims to have written the panchnama report states that the polythene was found hidden at the back of the seat.

(b) PW/3 and PW/5 states that the polythene was thrown by the respondent.

C. As to who wrote the Panchnama 

(a) PW/1 states in the court statement as well as in the statements u/S. 161 of the Code of Criminal Procedure, 1973 that the panchnama report was written by him.

(b) PW/3 and PW/5 do not support this and states that the Panchnama was written by PW/3.

D. As to possession of the seized article.

(a) PW/3 states that after the seizure, the FIR along with the documents and the seized article were given to the Commissioner (PW 5) 

(b) PW/4 states that the FIR along with the documents and the seized articles 

(c) PW/5 states nothing regarding this.

Learned counsel for the respondent has drawn attention of this Court towards the report submitted by the analyst. She has argued that the sample which was sent for examination was not tested and the evidence on record does not establish that the sample which was sent to the analyst was tested by the analyst, on the basis of the events mentioned as under : 

A. Date of dispatch – 28/07/1989 and the date of receiving in the Laboratory 2/08/1989. As per PW/4 also the sample was deposited in the Lab on 2/08/1989. The period between 28/7/1989 and 2/8/1980 has been unexplained. Neither it is shown as to in whose possession the sample was kept nor statement of any such person has been kept on record. There is an unexplained delay in sending the sample.

B. As per PW/3 the sample was kept in the cigarette box and wrapped with a chit, whereas in the lab report it is written that the sample was found in the match box and also no seal memo of the seal which is supposed to be affixed on the chit is produced. Besides this as per the prosecution the weight of the sample which was sent to the Laboratory was 24 grams whereas in the lab report the weight has come out to be of 21.40 grams.

C. PW/4 states that the contraband article were kept in the Malkhana but neither any malkhana register has been kept on record nor any covering letter and also statements of the holder of the contraband article were also not recorded. PW/4 in his statements have accepted no receipt of depositing the contraband in the Malkhana has been received nor any register has been produced.

12. The aforesaid raises a doubt as to whether the contraband article were kept in safe custody and whether the article which was seized sent to lab. In the case of Bhadav Vs. State of M.P. reported in 2008 (29) Crl. CC 170, a similar matter came up before this Court and paragraph 12 of the aforesaid judgment reads as under : 

12. There is evidence that sample was sent to Government Opium & Alkaloid Works, Neemuch for chemical analysis and as per the report Exhibit P10 sample, was found to be charas. Though, it has been mentioned in Exhibit P90 that sample seized from the appellant, Bhadar was sent for analysis and it was analysed. It is clear from Exhibit P-7C that on the same day, two persons were apprehended and from them contraband article were Seized. One of them was Bhadar and the name of second person was Athar Ali. It is also clear from Exhibit P-7C that samples were prepared from alleged seized contraband article from both these persons. This fact is also clear from the evidence of S.J. Zafrin. There is no evidence that seized article and sample was kept in custody of Malkhana Moharir of Kotwali Bhopal and the same sample which was prepared from the seized contraband article from the appellant, Bhadar was sent for chemical analysis. There is no evidence that alleged seized contraband article and sample were kept in Malkhana Moharair from 04.08.1991 to 22.08.1991. Malkhana Moharair of Kotwali Bhopal has not been examined. Copy of register of Malkhana Kotwali, Bhopal in which entries being made has not been produced and proved in evidence. There is no evidence that seized contraband article and sample were kept in safe custody from 04.08.1991 to 22.08.1991 hence, only on the basis of evidence of S.J. Zafrin and documents Exhibit P-9C and Exhibit P10, it cannot be held beyond reasonable doubt that same sample which was prepared from alleged seized contraband article from the appellant, Bhadar was sent for chemical analysis and report Exhibit P10 pertains to the same sample. Consequently, prosecution has failed to prove beyond reasonable doubt that seized article from the appellant was charas. S.J. Zafrin seized the alleged contraband article from the appellant and he conducted the investigation and lodged FIR Exhibit P8C. In Megha Singh v. State of Haryana MANU/SC/0466/1995MANU/SC/0466/1995 : AIR 1995 SC 2339 it has been held that being a complainant, the same police officer should not have proceeded with the investigation of the case which suspects the fair and impartial investigation.

13. In another judgment delivered by the Hon'ble Supreme Court in the case of Noor Aga Vs. State of Punjab and another reported in (2008) 16 SCC 417 in paragraphs 125 has held as under : 

125. Omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of Magistrate as envisaged under Section 52A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes: 

(a) Certifying correctness of the inventory so prepared; or 

(b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or 

(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

14. The apex Court has held that compliance of Sec. 52 and Sec. 53 has to be done in a case under the Act of 1985 and it is mandatory in nature.

15. Learned counsel for the respondent has placed reliance upon the judgment delivered in the case of Manoharlal Mehra Vs. State of M.P. reported in 2006 (1) MPLJ 572. Heavy reliance has been placed upon the following paragraphs : 

In view of the aforesaid evidence; there is no such positive and clear evidence on record that the material which was seized was poppy straw or poppy husk and it was duly sealed in presence of independent witnesses and it was the same material which was referred for chemical examination. It has come in the evidence that the material was referred for chemical examination after six days and the prosecution has not explained delay in forwarding the material for chemical examination. As has been held repeatedly by the Supreme Court, it is the duty of the prosecution to explain the delay in forwarding the material for chemical examination as well as it is the burden on the prosecution to prove that during this period where and in what condition the material was kept, whether it was duly sealed. In the absence of any evidence that the seized material was poppy straw and it was properly sealed and kept and the same material was forwarded for chemical examination, it cannot be held that it was the same material which was forwarded for chemical examination. The statement of Kashi Prasad Jawre (P.W. 4), who was the In-charge of G.R.P. Gwalior, who says that the seized material was poppy seeds of opium, has created clear doubt about the material seized. As has been discussed above, it is clear that the poppy seeds are excluded and there cannot be any offence for the recovery of the same. Poppy seeds are available in the market and being sold freely. In such circumstances, the compliance of Section 57 was also material and if there was no compliance, it would be treated that it is fatal to the case in hand. As held above, the compliance of Section 50 was not necessary in this case. So far as the alternative argument of the Learned Counsel for the appellant is concerned, as recently in the case of Basheer alias N.P. Basheer v. State of Kerala, MANU/SC/0117/2004MANU/SC/0117/2004 : (2004) 3 SCC 609, the judgment of this Court in the case of Ramesh v. State of M.P. and Anr. MANU/MP/0229/2003 : 2004 (1) MPLJ 235 : 2004 (1) JLJ 133 has been overruled. Therefore, the provision of the Amended Act of 2001 will not be applicable on pending appeals. Thus, the appellant is not entitled for any benefit of the same.

However, considering the totality of the evidence on record, I find that no reliable evidence is available on record about the material, which was seized whether it was poppy seed or poppy straw, what was its quantity, its weighment, its seizure and duly sealed and whether the same material was referred for chemical examination, etc. and, thus, I do not find that the prosecution has proved the case against the appellant by producing evidence beyond reasonable doubt. Admittedly, the evidence on record is full of doubt.

Consequently, this appeal is allowed. The judgment of conviction and sentence is set aside. The appellant is in jail. He be released if not required in any other case.

16. In the aforesaid case also the material was referred for chemical examination after six days and the prosecution has not explained the delay in forwarding the material for chemical examination and this Court has held that it is the duty of the prosecution to explain delay as well as it is the burden upon the prosecution to prove that during this period where and in what condition the material was kept, whether it was duly sealed and it is the same material which was forwarded to the chemical examination.

17. Learned counsel for the respondent has also argued before this Court that the officer who has conducted the search is the same officer who has investigated the matter and he took statement u/S. 161 of the Code of Criminal Procedure, 1973. She has also argued that he was the Investigating Officer and the FIR was sent to him and it was treated as compliance of Sec. 42, 53 and 57 of the NDPS Act. She has argued that it is against the principles of fair and impartial investigation, keeping in view the judgment delivered in the case of Megha Singh Vs. State of Haryana reported in (1996) 11 SCC 709. The apex Court while dealing with a case under the Terrorist and Disruptive Activities (Prevention) Act, 1985, in paragraphs 3 and 4 has held as under : 

3. The learned Counsel for the appellant has submitted that admittedly at 12-00 noon on the village road the appellant was apprehended by the police and it was only natural that some villagers would remain present but the prosecution chose not to examine any independent witness to corroborate the prosecution case. The learned Counsel in his fairness has submitted that although the evidence given by the police personnel cannot be discarded as a matter of rule but the rule of prudence requires that the prosecution case should stand corroborated by an independent witness when such evidence can easily be available so as to lend credence to the prosecution case. He has also submitted that both the witnesses of the prosecution were police personnel and they were examined shortly after the arrest of the accused. In such circumstances, there should not have been any discrepancy about the number of cartridges alleged to have been recovered from the accused and the place from where the pistol was recovered from the person of the accused. It has been submitted by the learned Counsel that such discrepancy only points out that the said police personnel were not actually present at the time of search and seizure but a false case was initiated against the appellant and precisely for the said reason the discrepancy arose.

4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case.

18. It has been held that such a practice should not be resorted to as there may not be any occasion to suspect the FIR and impartial investigation. It has also been argued that there is total non compliance of Sec. 52 of the Act, as it was a case relating to chance recovery and the opium was found in Polythene bag. It has been argued that there were search carried out upon the person of the respondent and he was not informed as to by whom he wants to be searched. Learned counsel for the respondent has placed reliance upon the judgment delivered by the apex Court in the case of Mohinder Kumar Vs. State of Panaji reported in (1998) 8 SCC 655. Paragraphs 2 and 3 of the aforesaid judgment reads as under : 

2. From the above basic facts it would appear that this search and seizure look place in the evening between 7.45 PM and 8 PM i.e. after sunset. Counsel for the appellant contends that the entire search and seizure had been effected in total violation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter called "the Act"). She points out that there has been a violation of Sections 41(2), 42(1) and Section 50 in particular. In support, she referred to the decision of this Court in State of Punjab v. Balbir Singh, MANU/SC/0436/1994 MANU/SC/0436/1994 : 1994 CriLJ 3702. The relevant part with which we are concerned is to be found in the paragraph where the conclusions have been summed up. After analysing the provisions of the Act, this Court has stated that if a police officer, without prior information, makes a search and effect arrest of persons and if during such search he stumbles on a chance recovery of any narcotic drugs or psycho-tropic substance and if he happens to be a police officer who is not empowered under the Act to effect search and seizure, he should inform the empowered officer as required by the Act. If he himself happens to be the empowered officer, then from that stage onwards the investigation must be carried out in accordance with the provisions of the Act.

3. In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the em powered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. Under Section 42(1) proviso, if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted.

19. This Court has carefully gone through the statements of the witnesses and keeping in view the statement of Sub Inspector Kamal Kothari (PW 1), the trial Court was justified in acquitting the respondent. The FIR cannot be treated as a report which is sent to the superior Officers and it is a clear transgression of Sec. 57 of the Narcotic Drugs & Psychotropic Substances Act, 1985. There is certainly violation of Sec. 57 and 42 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Not only this, there are lot of contradictions and omissions which have been dealt with earlier by this Court. There is also serious doubt as to whether the contraband article was kept in safe custody and whether the same article which was seized, was sent to the Laboratory for chemical analysis and, therefore, the benefit has to be given to the respondent keeping in view the judgment delivered in the case of Bhadav (supra).

20. In the present case, after scrutinising the record minutely and as held by the Court below, compliance of Sec. 52 and 53 of the Narcotic Drugs & Psychotropic Substances Act, 1985 has not been done which is mandatory in nature and, therefore, in the light of the judgment delivered by the apex Court in the case of Noor Aga (supra), the learned Judge was justified in acquitting the accused.

21. Undoubtedly, there was a delay also in sending the contraband for chemical examination and it was the duty of the prosecution to explain the delay and it was the burden upon the prosecution to prove that during the period where and in what condition the material was kept, whether it was duly sealed and it is the same material which was forwarded for the chemical examination. In absence of the aforesaid, keeping in view the judgment delivered in the case of Manoharlal Mehra (supra), the trial Court was justified in acquitting the accused. Not only this, the Officer who has conducted the search, is the same Officer who has investigated the matter. The FIR was sent to him only and it was treated as compliance of Sec. 42, 53 and 57 of the Narcotic Drugs & Psychotropic Substances Act, 1985. In the light of the judgment delivered in the case of Megha Singh (supra), and keeping in view that there should not be any occasion to suspect the FIR and impartial investigation, the benefit has to be given to the accused person.

22. Keeping in view the totality of the circumstances and various judgments referred above and also keeping in view the contradictions and omissions, non compliance of the mandatory provision, this Court is of the considered opinion that the learned Judge was justified in acquitting the respondent and no case is made out to convict the respondent in the matter.

23. Resultantly, respondent's acquittal is affirmed and the appeal preferred by the Union of India through Central Bureau of Narcotics is dismissed.

24. Before parting this Court would like to appreciate the hardwork done in the matter by Ms. Anushri Kaushik, learned counsel for the respondent, who has been appointed through State Legal Services Authority. She has prepared the case thoroughly and has really done hardwork in the matter.