Judgment : This appeal is against the conviction and sentence imposed by the learned First Additional Sessions Judge, Madurai, in S.C. No. 209 of 1989 dated 111. 1989 for the offence under Sec. 8(c) read with Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act (NDPS. Act) to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh. 2. The prosecution case is that on 11. 1987 when the room occupied by this appellant in a lodge in Madurai was searched by the Customs Officials, he was found to be in possession of 930 grams of heroin. The case of the prosecution is as follows: On 11. 1987, P.W. 2, the Assistant Collector of Customs, Madurai, received a message that a person occupying the room No. 7 in A.R.Buildings, which is a lodge situated in North Veli Street, was in possession of the narcotic substance. Therefore, the Assistant Collector of Customs, P.W. 2 along with the Superintendent of Customs P.W. 1 and also with some others including D.W. 1 proceeded to No. 161-A, North Veli Street, Madurai, and found this appellant in Room No. 7. When he was questioned whether he was having any narcotic substance, he denied. The room was searched and they found M.O. 1, yellow bag under the cot. When it was examined, they found two packets, one with an inscription ‘555’ and another with an inscription ‘777’ over them. When they opened these packets, the first packet contained the powder in cream colour and the other packet contained brown colour powder kept in the polythene bags. When questioned, the accused admitted that they were narcotic substances kept for sale. P.Ws. 1 and 2 seized the substances contained in M.O. 1 bag under a mahazar Ex.P-1 along with the rental receipt Ex.P-2 for the payment of rent to the lodge, in the presence of D.W. 1 and the watchman of the lodge Gurusamy. They brought the narcotic substance and the accused to the Customs Office at Madurai. The substances were weighed in the presence of P.W.3, the owner of the lodge and some others for which Ex.P-3 mahazar was prepared, giving the weight of the contraband. The accused was questioned and he gave a written statement in Hindi under Ex.P-4, The same was translated into English under Ex.P-5 by one Raja attached to the Customs Office. The substances were weighed in the presence of P.W.3, the owner of the lodge and some others for which Ex.P-3 mahazar was prepared, giving the weight of the contraband. The accused was questioned and he gave a written statement in Hindi under Ex.P-4, The same was translated into English under Ex.P-5 by one Raja attached to the Customs Office. From the two packets 5 grams each was taken for sample in the presence of the witnesses and the sample packets were sent to the Customs Laboratory for chemical examination under the requisition of the Assistant Collector of Customs Ex.P-11. The balance of the substance is M.O. 4. In the chemical analysis, it was found out that the sample taken from the packet which contained the inscription ‘555’ did not contain the narcotic substance but the sample from the other packet contained the narcotic substance heroin. Ex.P-12 is the report received from the Customs Laboratory. The accused was arrested on 11. 1987 and was remanded before the Magistrate. On 11. 1987 the house of the accused’s brother situated in Thottian Well Street in Madurai was searched and Ex.P-8, the diary of the accused was seized under Ex.P-9 mahazar. The Assistant Collector of Customs sent the report to the Collector of Customs by telex message on 11. 1987 itself under Ex.P-6. When the accused was in custody, Ex.P-13 statement was recorded from him on 111. 1987 in Hindi, the translation of which is Ex.P-14 in English. The statement of P.W. 3 also was recorded under Ex.P-10. Thereafter, P.W. 2 filed the complaint before the court. 3. After the evidence, the accused was questioned under Sec. 313, Code of Criminal Procedure to explain the incriminating circumstances found against him in the evidence. He denied his complicity in the crime and he said that he was not staying in Room No. 7 of A.R.Buildings, that he was working in Tamil Nadu Agencies situated in Avani Moola Street in Madurai and on 11. 1987 at about 10.00 a.m. the Customs Officials, who came to the ship took him away to the Customs House. He also has stated that they tortured him and obtained 5 or 6 signatures in the white sheets and also directed him to write certain things and on account of the torture, he wrote as directed by them. He examined two witnesses on his side. He also has stated that they tortured him and obtained 5 or 6 signatures in the white sheets and also directed him to write certain things and on account of the torture, he wrote as directed by them. He examined two witnesses on his side. D.W. 1 the attestor of Ex.P-1 mahazar has stated that without knowing the contents in Ex.P-1, he signed in the paper as he was asked by the Customs Officials to sign in the document. According to him, when he was going along Beevikulam street, in Madurai, Customs Officials took him to their office and obtained his signature in Ex.P-1 without explaining the contents therein. D.W. 2 is the owner of Tamil Nadu agencies. According to him, the Customs Officials took him to their office and asked him to sign in Ex.P-13 which was already written in Hindi and he did not know who wrote it. From the evidence on record, the learned Additional Sessions Judge, Madurai, has found that the guilt of the accused is established and therefore he convicted the appellant in the manner stated above. .4. The learned counsel appearing for the appellant though initially argued that the mandatory provisions of Secs. 42(1) and 42(2) and 57 of N.D.P.S. Act were not complied with by the prosecution, he withdrew his arguments in respect of the above provisions after hearing the arguments of the prosecution respondent. However, he stressed his arguments in respect of the conduct of the Customs Officials namely P.Ws. 1 and 2 in not taking the sample in the place where the contraband was seized and not sending the materials immediately to the court. He also argued with regard to the date of arrest of the appellant. According to P.Ws. 1 and 2, on information, they proceeded to Room No.7 of A.R.Buildings situated in North Veli Street along with the attesting witness D.W. 1 in anticipation that the narcotic substance must be available with the occupant of that room. No doubt P.Ws. 1 and 2 have stated that in the bag M.O. 1 kept under the cot, M.Os. 2 and 3 packets were kept and on enquiry from this appellant, they came to know that the same were narcotic substance and therefore they seized under Ex.P-1 mahazar. No doubt P.Ws. 1 and 2 have stated that in the bag M.O. 1 kept under the cot, M.Os. 2 and 3 packets were kept and on enquiry from this appellant, they came to know that the same were narcotic substance and therefore they seized under Ex.P-1 mahazar. But after seizure, they did not ascertain the weight in the place where the same were seized and the sample also was not taken in that place, but the appellant and the substances were brought to Customs Office, which is a different place and the sample was taken only in the office. The learned counsel Mr. Prakash representing the Special Public Prosecutor Mr.P.R. Rajamanickam argued that there is no provision in the NDPS Act insisting for weighing the contraband and taking the sample in the very same place where they were seized and therefore for the reason that the contraband was brought to the Customs House, it is not a violation on the part of the Customs Officials P.Ws. 1 and 2. It is true that there is no specific provision for taking the sample or weighing the contraband in the place where they were seized. But when a contraband was seized in a particular place in the presence of the witnesses, the sample of the contraband also must be taken in the presence of the very same witnesses as it will not raise any suspicion whether the sample was taken from the contraband seized or it was a different material. When the contraband was seized in the presence of the witnesses, and the sample also was taken in the presence of the very same witnesses, naturally the mahazar witness will be able to say that the sample was the part of the contraband seized. On the other hand if the sample was taken in a different place, there is a possibility for changing the materials seized, because the mahazar witness may not be able to watch throughout whether the same material was brought for taking the samples. Therefore, it will be always proper to take the sample in the place where the contraband was seized. In this case, no reason is offered by P.Ws. 1 and 2 as to why the sample was not taken in the place where the contraband was seized. Therefore, it will be always proper to take the sample in the place where the contraband was seized. In this case, no reason is offered by P.Ws. 1 and 2 as to why the sample was not taken in the place where the contraband was seized. When they received the information about the availability of the contraband in a particular place and they also proceeded to that place along with the witnesses including the mahazar witness D.W. 1, they could have taken the weighing apparatus and the seals also with them for weighing the contraband and sealing the sample. Therefore, certainly the conduct of the Customs Officials in bringing the contraband to their Customs Office for weighing and taking the sample, creates a doubt in my mind. .5. Even for the seizure of the contraband from this appellant, there is no independent evidence. The Customs Officials P.Ws. 1 and 2 alone have spoken about that. Another attestor by name Gurusamy, said to be the watchman of the lodge, was not examined as he is dead. The other attestor Sivaramakrishnan has been examined on the side of the accused and he has stated that while he was walking long the road, he was taken to the Customs House and was made to sign Ex.P-1 without even informing the contents of the documents. Therefore, as it is, there is no independent evidence for the seizure of the contraband from this appellant. Even for the occupation of Room No. 7 by this appellant, there is no acceptable proof because P.W. 3, the lodge owner says that though he issued the receipt Ex.P-2 for room No. 7, he did not know actually who was occupying the room. Therefore, there is no reliable evidence for the seizure of the contraband from this appellant on 11. 1987. 6. The learned counsel for the appellant Mr. Anbalagan argued that the contraband seized also was not sent to the court and M.O. 4 was produced before the court only at the time of the trial before the Sessions Court. Ex.P-16, however, is produced for the prosecution to show that on 11. 1987, itself, it was produced before the remanding Magistrate but as he directed to produce the materials before the Sessions Court, the competent court to try this case, the contraband was brought back to the Customs House and it was produced before the trial Judge later. Ex.P-16, however, is produced for the prosecution to show that on 11. 1987, itself, it was produced before the remanding Magistrate but as he directed to produce the materials before the Sessions Court, the competent court to try this case, the contraband was brought back to the Customs House and it was produced before the trial Judge later. But, though Ex.P-16 is dated 11. 1987 requesting the Additional Chief Judicial Magistrate to receive the materials there is nothing to show that really the materials were produced before the Magistrate and he, in turn, directed them to produce before the Sessions Court. There is no endorsement on Ex.P-16 either by the Magistrate or by the staff of the court directing the customs officials to produce before the Sessions Court. Therefore Mr. Anabalagan, argued that Ex.P-16 has been created by the prosecution for the purpose of this case at the time of the trial. This argument also cannot be rejected because there is nothing to show on record that the Additional Chief Judicial Magistrate, Madurai had directed the Customs Officials to keep the contraband with them or produce the same before the Sessions Court. As there is no such endorsement on Ex.P-16, naturally, we have no other go except to conclude that the contraband seized was not produced before the Magistrate. 7. P.W.2 has stated that the appellant was arrested only on 11. 1987 at 10.00 a.m. Even though the contraband was seized from him on 11. 1987 itself at 11.00 a.m. and he was taken to the Customs Office, according to P.W.2, he was not arrested till 10.00 a.m. on 11. 1987. The learned counsel for the appellant contended that if really the contraband was seized from him on 11. 1987 itself the Customs Officials would have certainly arrested him on 11. 1987 itself but as it is stated that he was arrested only on 11. 1987, nothing could have been recovered from him on 11. 1987. But Mr.Prakash, the learned counsel representing Special Public Prosecutor argued that it is not necessary to arrest the person immediately, when contraband was seized from him because, sometimes for the purpose of interrogation and to gather some more informations, the offender would not be arrested immediately but after the completion of the enquiry, he would be arrested. 1987. But Mr.Prakash, the learned counsel representing Special Public Prosecutor argued that it is not necessary to arrest the person immediately, when contraband was seized from him because, sometimes for the purpose of interrogation and to gather some more informations, the offender would not be arrested immediately but after the completion of the enquiry, he would be arrested. It may be true, but in this case, it is the prosecution version that the appellant himself had admitted that the materials seized from him were Heroin Powder and Ex.P-4 statement also is said to have been recorded from the accused on 11. 1987 evening itself. Hence, there was nothing more to be elicited from him, for detaining him in the Customs House without arresting him till next day morning. Even though it is the evidence of P.W.2 that the appellant was arrested only on 11. 1987, in the report Ex.P-6 sent by him on 11. 1987, in column 6, he has stated that the offender was arrested and was being remanded to judicial custody. Therefore, contrary to the details furnished in Ex.P-6, evidence is given that the appellant was not arrested on 11. 1987 but on the next day. From this, it shows that the prosecution was planning and scheming for certain purposes contrary to the facts. 8. There is one more document which the prosecution is not able to get over from its susceptible conduct. In Ex.P-7, the mahazar prepared for taking the sample from the contraband, it is stated that on 11. 1987, the sample was taken and sealed in the presence of the owner of the lodge and the watchman of the lodge between 04.00 p.m. and 05.00 p.m. It is also stated that the process of taking the sample started by 04.00 p.m. and was completed by 05.00 p.m. The accused/ appellant also has signed in Ex.P-7 as though he was present at the time when the sample was taken. But the remand report of the additional Chief Judicial Magistrate, Madurai, reads that the appellant was produced before him at 04.00 p.m. on 11. 1987. But the remand report of the additional Chief Judicial Magistrate, Madurai, reads that the appellant was produced before him at 04.00 p.m. on 11. 1987. As the appellant was produced before the learned Additional Chief Judicial Magistrate at 04.00 p.m., he ought to have been taken from the Customs House earlier than 04.00 p.m. But Ex.P-7 reads that the sample was taken between 04.00 p.m. and 05.00 p.m. in the Customs House in the presence of the appellant, P.W.1, P.W.3 and one Gurusamy. Therefore, it is very clear that Ex.P-7 could not have been prepared in the presence of the accused though his signature also has been obtained in this document as though he was present at the time of taking the sample. This circumstance would reveal that the prosecution was creating documents with the signature of the appellant herein as though he had admitted the contents of the documents. The appellant has stated in his statement, that on 11. 1987 when he was in Tamil Nadu Agencies, he was taken by the Customs Officials. Though the prosecution case is that the contraband was seized from him even on 11. 1987 but was arrested only on 11. 1987, the statement of the appellant probabilises his version that he could have been taken only 11. 1987 as the evidence of the prosecution witness is that he was arrested on 11. 1987. Therefore, taking into consideration the conduct of the prosecution witnesses and also from the documents like Exs.P-6 and P-7 which contain the facts contrary to the truth, I feel that it is not safe to rely upon the evidence of the prosecution witnesses, when especially there is no independent evidence of the seizure of the contraband from the appellant. Therefore, I find that the conclusion arrived at by the court below is not acceptable and the conviction and sentence are liable to be set aside. 9. In the result, setting aside the findings of the court below, the appellant is acquitted and he is set at liberty. The appeal is allowed. Fine amount, if paid, will be refunded to the appellant. In view of the above order, the Criminal Miscellaneous Petitions are dismissed.