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2. The prosecution case against the appellant is that Police Inspector P. S. Patil of Navapura Police Station, on information from his informant, kept watch along with his staff members, nearby Kasam Dula's Dargah at Bagikhana Road, Vadodara, and at about 10-00 p.m. they saw the appellant proceeding in suspicious manner towards Polo ground. They apprehended him near Dargah and called two panch-witnesses who were passing by and on being asked the name, the appellant gave his name as Surajmal Kanaiyalal Soni and that he is resident of Bhesoda, District Mansor. The appellant had one rexine bag and on search, three bags were recovered from it. All the three bags were stitched with threads and on opening some portion of those bags the blacksoft substance was found and on taking smell it was found to be opium. One Police constable was sent and one person was brought with scales. On weighing it was found that one bag contained 3 Kgs. 700 gms, second bag contained 3 kgs. 50 gms. and third bag contained 3 Kgs. 025 gms of opium. The appellant had no pass or permit. Some of the opium from each bag was taken out and 3 pellets weighing about 50 gms. were separately put in one plastic bag and that bag was sealed with slip bearing the signatures of the panch-witnesses and by personal seal of the Police Inspector. Three bags recovered from the rexine bag were stitched and were sealed with slips bearing the signatures of the panch-witnesses and with the seals of the Police Inspector. Detailed panchnama was prepared there and muddamal opium was attached. The appellant along with the muddamal opium was taken to the police station and the Police Inspector Patil filed complaint Ex. 10. The Police Station Officer registered the offence and after that Police Inspector Patil carried on further investigation and recorded the statements of the members of the staff who were with him during the seizure operation. The muddamal samples were sent to the Chemical analyser for chemical analyse through the D.C. Branch along with letter Ex. 11. Report Ex. 13, was received from the Forensic Science Laboratory. The appellant in the statement Under Section 313, Criminal Procedure Code, stated that he is falsely involved and on March 5, 1988 he had come to Baroda from Bombay and had put up in Aggrawal Guest House and one Kanchan was with him. In the afternoon they were just taking round in the city and at that time Vikram of Rajasthan, who knew Kanchan, met them and inquired about the place where they had put up and accompanied them and he also put up with them in the common room. The charges of Aggrawal Guest House being more, they shifted to Poona Boarding House, Selatwada, on the next day. Vikram also accompanied them. On March 7, 1988, the appellant was standing at the entrance of the gali and at that time three persons came there and inquired about Vikram and he told that Vikram must be inside the Guest house. They inquired from the boy working in the Boarding house about Vikram and they were informed that Vikram had gone to take the dinner. They then inquired from the appellant as to how he knew Vikram. The appellant told that he did not know Vikram but his companion knew him. On inquiries, the appellant further stated that he is resident of M.P. and had put up in a common room and had one bag with him. Those three people then verified the register of the guest house and waited for Vikram but Vikram did not turn up. They then told him to accompany them as they happened to be the C.I.D. Officers. They then took him to room No. 5 in Relief Hotel, in a rickshaw. Two persons were sitting there and they had black rexine bag. He told that he did not know those two persons. One of them was having the name Karansingh and opium was lying there. Another person was having the name Manohar. One packet of opium was recovered from Karansingh and two packets of opium were recovered from Manohar. Those three policemen i.e. Dilip, Prem and Mehboob then waited there for three hours. During that period they were threatening Manohar and Karan and subsequently, some persons known to Manohar and Karan managed for money and, therefore, both of them were allowed to go and after that they demanded Rs. 20,000/- from the appellant but the appellant could not manage. He had given the name of his relation S. N. Soni and subsequently of one Malik. They went there but money could not be arranged. Police Inspector Patil also came there and he also demanded money but the appellant could not manage and therefore, Police Inspector Patil directed to File the case. He was then taken to Navapura Police Station and was kept in lock-up at Raopura Police station and was informed in the morning that opium was recovered from him.

5. In cross-examination Police Inspector Patil stated that the muddamal was kept in his personal custody. He did not remember as to when the muddamal was sent to the D.C.B., with whom it was sent and after how many days it was sent. The sample muddamal was received by the Chemical Analyser on April 8, 1988. He admitted that in the Report of the Chemical Analyser is not stated that the sample bag contained the slip hearing the signatures of the panch-witnesses. It is, however, clear from the letter Ex. 11 that he had stated that the sample bag contained the slip bearing the signatures of the panch-witnesses and the seal. About the secret information, Police Inspector Patil stated that he had received that information in the late evening, but he did not remember the time, but he had reached the place at about 9 to 9-15 p.m. for keeping watch. He had not made entry in the Police station diary after he started. After he got the information he had not attempted to secure warrant from the Magistrate but had informed his superior Shri Raol that he bad received the secret information and that be was going for keeping watch. There are residential premises at Bagikhana Road and many people frequently move on that road. When the Police stopped the appellant people did not stop there, as it being night time the residents of the society were taking rest and therefore, he had not called any panch witness from the locality but the persons who were passing, were called to work as Panch-witnesses. He admitted that the brother of panch-witness Parasram Baburao Mugdal is having a stall in which 'sev-used' is served. Himself and police had not given their search. He denied that police constable Dilip Jairam had called him at the police station at 10-45 p.m. on telephone and three persons, namely, Karamsinh, Manohor Darji and the appellant were produced before him and was informed that one bag was recovered from Karamsinh and two bags were recovered from Manohar Darji, but the police had settled with them and they were allowed to go. He also denied that he was informed that one Manohar Darji gave the information and thereupon they had gone to Poona Boarding house, Vikram and Chandansinh had fled away from there, but the appellant was brought from there with Aristocrate bag. He also denied that the appellant could not manage for money. The allegation that the panchnama was subsequently prepared was also denied by him. He had not inquired as to whether the appellant had put up at Poona Boarding house. He had not seen any Aristocrat Bag with the appellant. He had affixed the seal of 'P.S.P.' He informed the superior officer about the seizure and of the incident on phone but had not submitted any written report. He did not remember as to whether the entry was made in the log-book.

8. The learned trial Judge has rightly accepted the evidence of Police Inspector Patil, Police Constable Mehboobsa and Panch-witness Parasram as their evidence is cogent and convincing and nothing was brought out to discard their evidence. The muddamal opium 9 Kgs. 775 gam was recovered from three bags, each bag containing more than 3 Kgs. opium. It is therefore, not possible to plant such muddamal. It is tried to establish that Karansinh and Manohar were in possession of three bags, but they were let off by accepting the bribe and the appellant was falsely implicated. It is very easy to make such allegations. If at all Karansinh and Manohar would have paid the illegal gratification to the Police Inspector Patil and the staff, they would not have filed case. It cannot be easily accepted that some innocent person would be roped in for such offence. The contention that the police subsequently went to the Poona Boarding House and the appellant was brought from there, cannot be easily believed. If at all Karansinh and Manoharsinh were in possession and they were taken to police chowky, then it was not necessary for the police to take the appellant from Poona Boarding House. It was alleged in the cross-examination of Police Inspector Patil that Karansinh, Manohar and the appellant were produced before him at polo-ground police chowky and he was also informed that on information police had gone to Poona Boarding House and from there the appellant was brought with Aristocrat bag and Chandansinh and Vikram had fled away. If at all muddamal would have been recovered from Karamsinh and Manohar then it cannot be easily believed that after that the police will go in search of Vikram and Chandansinh and on their not being found the appellant would be arrested. It is very easy to make such allegation, or create such evidence. As the police witnesses and the panch-witness have rib reason to tell a lie the learned trial Judge I has rightly accepted their evidence.

33. Mr. Shethna, learned Advocate for the appellant, asserting that the provisions of Section 57, NDPS Act, were not complied with as, even though it was obligatory to make a full report of all the particulars of such arrest or seizure, within 48 hours, to the immediate superior official, no such report in writing was sent by Police Inspector Patil to his immediate superior official. Police Inspector Patil has stated that before proceeding for keeping watch he had informed his immediate superior Mr. Roul and after seizure also he had informed him on phone about the recovery and the offence but had not submitted any report in writing. Section 56, NDPS Act, does not provide that the report in writing should be submitted within 48 hours. 'Report' as used in context means 'make official or formal statement' 'inform against'. As Section 57 provides for making full report of all the particulars of such arrest and seizure, it is desirable to make a report in writing but in absence of specific provision making it obligatory to submit report in writing, it cannot be held that report should be in writing. Even if it is held that the report is required to be submitted in writing, non-compliance of submitting such report Under Section 57, NDPS Act, by itself would not vitiate the investigation and the trial. The provisions of Section 57 should not be considered such mandatory, non-compliance of which should be fatal to the prosecution as such report is to be submitted subsequent to the arrest and seizure and in most of the cases after filing of the complaint and producing the muddamal before the Police Station Officer. It appears that such provision is made in Section 57, NDPS Act, with a view to see that the police officers or other officers, who may be authorised to investigate Under Section 52, NDPS Act, may not misuse the power and subsequently create evidence. Normally seizure is made under the panchnama and in presence of panch-witnesses and after that the complaint is filed and First Information Report is lodged before the Police Station Officer and the muddamal is also normally produced before the Police Station Officer. After the entries are made in the official record it may not be easily possible to tamper with the evidence or create evidence. The very fact that the First Information Report is made is sufficient security and after that there may not be any possibility for changing the record. In such circumstances, it should be held that even though compliance of that section is necessary non-compliance of it will not be fatal to the prosecution till it is established that it has resulted in miscarriage of justice or prejudice is caused to the accused. When the panchnama is prepared and the FIR is lodged and the entry is made in the Police Station Diary or the relevant record and the muddamal is produced before the Police Station Officer, it cannot be accepted that any prejudice is caused to the accused merely because report was not made to the immediate superior in writing, within 48 hours.