JUDGMENT 1. - This appeal has been preferred by the accused appellant against the judgment and order dated 8.7.1996 passed by the learned Special Judge (Sessions Judge), NDPS Cases, Hanumangarh in Sessions Case No. (7/93), 25/94 by which he acquitted accused Satpal, Darshan, Paliram and Asha of the charges for the offence under Section 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Narcotic Drugs And Psychotropic Substances Act') and also acquitted accused Smt. Neelam and Kanta of the charges for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act, but convicted the present accused appellant for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act and sentenced him to undergo ten years' rigorous imprisonment and to pay fine of Rs. one lac, in default of payment of fine, to further undergo SI for six months. 2. It arises in the following circumstances : On 2.4.1993 at about 1.15 PM, P.W.8 Richhpal Singh, CI, Police Station Sangaria District Sri Ganganagar lodged a report with the Police Station Sangaria District Sri Ganganagar stating inter-alia that on 2.4.1993 at about 8.20 AM, he received a secret information from mukhbir to the effect that Madan (present accused appellant), is resident of Gurunanak Basti and he alongwith his relative Paliram, another accused dealt with contraband opium in his house and on that day after sometime, accused Darshan would go to his house alongwith contraband opium and alongwith him, there would be male and female members. That information was reduced into writing by P.W.8 Richhpal Singh and the same is Ex.P.38. That information was reduced into writing by P.W.8 Richhpal Singh and the same is Ex.P.38. Thereafter, at about 8.30 AM, P.W.8 Richhpal Singh alongwith other police officials including Raghuveer Singh, Lal Singh, Rajendra Singh, Gopal Ram, Bishan Singh, Hanumansahai and Jagdev Singh proceeded in a Government Jeep towards the place mentioned by the mukhbir and they stopped the Jeep near Vitan Vihar and took two motbirs, namely, P.W.1 Devilal and P.W.2 Jagdish and they reached Udham Singh Chowk at about 9.00 AM and at about 9.30 AM, a private jeep without numbers came there and from which two male members and one lady came out and they all proceeded towards Gurunanak Basti and out of these two male members, one, who was fatty, was having a green colour bag, which was handed over by him to the lady and all three persons entered the house of Madan (present accused appellant) situated in Gurunanak Basti and closed the door of the house and, thereafter, at about 9.50 AM, the house of the accused appellant was peeped by P.W.8 Richhpal Singh and other witnesses and they saw that the bag, which was given by fatty man to lady, was again returned to fatty man by that lady and the accused appellant was having a Taraju alongwith batts and, thereafter, one bag was taken out from that green colour bag by fatty man and started weighing and assessing that it was nothing but contraband opium. P.W.8 Richhpal and others entered the house and the person, who was having Taraju, on being asked, told his name as Madan (accused appellant) and others told their names as Darshan, Satpal, Paliram and Asha. Thereafter, all accused persons were given notice and under section 50 of the Narcotic Drugs And Psychotropic Substances Act by P.W.8 Richhpal Singh asking them whether they wanted to be searched before the Magistrate or the Gazetted Officer, upon which they gave their consent that their search could be made by PW.8 Richhpal. The notice under section 50 of the Narcotic Drugs And Psychotropic Substances Act, which was given to the accused appellant is Ex.P.3. Thereafter search was made by P.W.8. The notice under section 50 of the Narcotic Drugs And Psychotropic Substances Act, which was given to the accused appellant is Ex.P.3. Thereafter search was made by P.W.8. Richhpal and on search, from Taraju, which was being held by accused appellant contraband opium was recovered and he was having no valid license to keep that opium and it was weighed and its weight was found to be 1 kg out of which, two samples of 30 gms. each were taken for the purpose of chemical examination and they were sealed on the spot and marked as A and B and rest opium was also sealed on the spot and marked as C. The card of search and seizure, which was prepared by P.W.8 Richhpal Singh on the spot, is Ex.P.13. All accused persons were arrested by P.W.8 Richhpal Singh. The FIR, which was lodged by P.W.8 Richhpal Singh, is Ex.P.41. The information which was sent to superior officer by P.W.8 Richhpal Singh is Ex.P.40. The copy of Rojnamcha is Ex.P.44 After search, information was sent by P.W.8 Richhpal Singh to superior officer and the same is Ex.P.42. Thereafter, samples and articles seized were given to P.W.5 Anirudhra Kumar Malkhana Incharge, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P.33. Thereafter, vide letter dated 28.4.1993 Ex.P.36, sample was sent to FSL for chemical analysis through P.W.7 Balwant Rai. The receipt of depositing the sample in the FSL is Ex.P.37, which is dated 3.5.1993. The report of the FSL is Ex.P.49, which shows that sample gave positive tests for the chief constituents of the coagulated juice of opium poppy having 3.27% (Three point two seven percent) morphine. The other aspect of the prosecution case is that after search of the accused persons, on the information of accused Darshan, opium was recovered from the house of Deshraj and his wife Neelam.After usual investigation, challan was submitted against seven accused in the Court of Session. On 6.10.1999 the learned Special Judge, NDPS Cases, Sri Ganganagar framed charges for the offence under sections 27A and 29 of the Narcotic Drugs And Psychotropic Substances Act against accused Satpal, Darshan, Paliram and Asha and under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act against accused Neelam, Kanta and Madan (present accused appellant). On 6.10.1999 the learned Special Judge, NDPS Cases, Sri Ganganagar framed charges for the offence under sections 27A and 29 of the Narcotic Drugs And Psychotropic Substances Act against accused Satpal, Darshan, Paliram and Asha and under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act against accused Neelam, Kanta and Madan (present accused appellant). The charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under section 313 Criminal Procedure Code were recorded. In defence, ten witnesses were produced by the accused. After conclusion of trial, the learned Special Judge, NDPS Cases, Hanumangarh through his judgment and order dated 8.7.1996 acquitted the accused Satpal, Darshan, Paliram, Asha, Neelam and Kanta of the charges framed against them, but convicted the present accused appellant of the charge for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act and sentenced him in the manner as indicated above holding inter-alia : 1. That prosecution has been able to prove its case beyond all reasonable doubts for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act only against accused appellant Madan. 2. That prosecution has not been able to prove its case beyond all reasonable doubts against other accused and thus, they were acquitted holding that opium was recovered from accused Neelam and Kanta and samples were taken, but prosecution has not been able to establish where these samples remained and thus, link evidence was not found satisfactory. Aggrieved from the said judgment and order dated 8.7.1996 passed by the learned Special Judge, NDPS Cases, Hanumangarh this appeal has been filed by the accused appellant. 3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant : 1. That conviction and sentence of the present accused appellant are absolutely wrong, inasmuch as, on the same set of prosecution witnesses, six other accused persons have been acquitted by the learned Special Judge and thus, learned Special Judge has committed a mistake in convicting the accused appellant alone. 2. That conviction and sentence of the present accused appellant are absolutely wrong, inasmuch as, on the same set of prosecution witnesses, six other accused persons have been acquitted by the learned Special Judge and thus, learned Special Judge has committed a mistake in convicting the accused appellant alone. 2. That there is no evidence to show that samples and articles recovered from the accused appellant on 2.4.1993 remained intact from the date of seizure till they reached FSL and they were not tampered with. On this point, it was also argued that as per Malkhana Register Ex P.33 sample was given to P.W.7 Balwant Rai on 30.4.1993 by P.W.5 Anirudhra Kumar, but as per the letter of the FSL Ex.P.37, it was brought by P.W.7 Balwant Rai on 28.4.1993. Thus, when the sample was given to P.W.7 Balwant Rai on 30.4.1993 by P.W.5 Anirudhra Kumar, how it can be despatched on 28.4.1993. Thus, from this point of view also, case of the prosecution that samples from the date of depositing in Malkhana and upto sending it to FSL remained intact becomes doubtful and the accused appellant is entitled to benefit of doubt. 3. That, so-called articles and sample recovered from the accused appellant were not produced in the Court and this fact itself is sufficient to acquit the accused appellant. 4. That both motbir witnesses, namely, P.W.1 Devilal and P.W.2 Jagdish have been declared hostile and normally mere declaring them hostile does not affect the case of the prosecution, but in the present case, looking to all the facts and circumstances, this fact also leads to only one conclusion that prosecution has not been able to prove its case beyond all reasonable doubts. Hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Hanumangarh. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 6. In this case, there is no dispute that by the same judgment and order, other six accused were acquitted by the learned Sessions Judge. 7. 5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 6. In this case, there is no dispute that by the same judgment and order, other six accused were acquitted by the learned Sessions Judge. 7. It may be stated here that points No. 1 and 4 would be discussed after discussing points No. 2 and 3.Points No. 2 and 3 From the statement of P.W.5 Anirudhra Kumar it appears that on 2.4.1993, he was the Malkhana Incharge of Police Station Sangaria and on that day, P.W.8 Richhpal Singh handed over to him four packets, out of which, one was marked as A, second was marked B, third was marked C and these three packets were in sealed condition, but fourth packet was not sealed. He has further stated that on 30.4.1993, out of these packets, he handed over one packet marked A to P.W.7 Balwant Rai for depositing it in the FSL and entry to this effect was made in the Malkhana Register Ex.P.33.9. Thus, from the statement of P.W.5 Anirudhra Kumar, it is very much clear that he handed over the sample to P.W.7 Balwant Rai on 30.4.1993 for the purpose of depositing it in the FSL.10. Another witness in this respect is P.W.7 Balwant Rai, who carried the sample packet upto FSL and this witness states that on 30.4.1993, he received sample from P.W.5 Anirudhra Kumar and he handed over that sample in FSL and the receipt of depositing sample in FSL is Ex.P.37 and entry of his proceeding is in Rojnamcha Ex.P.34. He has further stated that letter by which he took the sample is Ex.P.36.11. In the Malkhana Register Ex. P.33, there is a clear cut entry that P.W.5 Anirudhra Kumar gave sample to P.W.7 Balwant Rai on 30.4.1993.12. From Rojnamcha Register Ex.P.34, it appears that P.W.7 Balwant Rai received sample on 30.4.1993. The letter, which was sent from SP Office to FSL is Ex.P.36, which clearly says that this letter was despatched on 28.4.1993.13. Thus, the evidence produced by the prosecution in the present case is self contradictory on the point that one set of documentary evidence shows that sample was given to P.W.7 Balwant Rai by P.W.5 Anirudhra Kumar on 30.4.1991. The letter, which was sent from SP Office to FSL is Ex.P.36, which clearly says that this letter was despatched on 28.4.1993.13. Thus, the evidence produced by the prosecution in the present case is self contradictory on the point that one set of documentary evidence shows that sample was given to P.W.7 Balwant Rai by P.W.5 Anirudhra Kumar on 30.4.1991. While letter of SP Office Ex.P.36 by which sample was sent to FSL, shows that it was despatched on 28.4.1993. In these circumstances, it cannot be said that so called articles and samples remained in proper custody and proper forum and the evidence itself is unsatisfactory. The evidence adduced is wholly insufficient to conclude that what was seized from the accused appellant alone was sent to the Chemical Examiner. On this ground alone, the accused appellant is entitled to acquittal.14. In the present case, the samples and articles were not produced in the Court during trial, as it is clear from the statements of the prosecution witnesses especially P.W.8 Richhpal. From the statement of P.W.8 Richhpal, it does not appear that he identified the opium recovered by him in Court and sample as well.Effect of non-production of case property in court during trial - 15. In the present case, there is no dispute on the point that seized articles were never produced during the trial in the Court and they were never identified by the witnesses of the prosecution. Purpose behind this aspect.16. In order to establish a clear cut link between the seized articles and the report of the Chemical Examiner, in my considered opinion, it is absolutely necessary to have identified the articles before the court as a substantive piece of evidence. After seizure, some quantity of the contraband is taken as a representative sample and the remaining part of the contraband is also required to be sealed. Such remaining part and containers, etc. should be produced in Court so that they may be got identified from the concerned witnesses, at the time of recording their evidence, to be the same which were seized from the accused. This part is missing in the present case.17. The next point is what would be its effect on the prosecution case.18. Such remaining part and containers, etc. should be produced in Court so that they may be got identified from the concerned witnesses, at the time of recording their evidence, to be the same which were seized from the accused. This part is missing in the present case.17. The next point is what would be its effect on the prosecution case.18. In Kabu @ Khudia v. State of Rajasthan (1991 Cr.L.R. (Raj.) 183) , this Court has held that production of seized articles in the Court was necessary so that their chemical examination report could be corroborated with the seized articles and non-production of the case property in Court gives serious infirmity and doubt about the investigation.19. In Valsala v. State of Kerala (1993 Cr.L.R. (SC) 333) , it has been held by the Hon'ble Supreme Court that articles seized should be kept in proper custody and proper form so that Court can be sure that what was seized only was sent to the Chemical Examiner. If this is not done, there would be a big gap and important missing link. 20. The Bombay High Court in Mainuddin Kasim Mulla v. State of Maharashtra, (1991(2) EFR 67 ) has held that since the packets containing samples were not brought before the Court, therefore, they could not be got identified and as a result whereof, the trial stands vitiated.21. In Mayadhar Rout v. State (1996(2) Crimes 29 (Orissa)) where contraband claimed to have been seized on 22.2.1991 were produced in court long after during trial in 1993, explanation that SDJM was approached for keeping the seized articles in the Court Malkhana but due to want of space they were not accepted, was not found substantiated and relying on the decision of the Hon'ble Supreme Court in Valsala v. State of Kerala (supra) , it was held by the Orissa High Court that it cannot be said beyond reasonable doubt that the articles seized from possession of the accused appellant were the very articles from which samples were sent for chemical examination.22. In Laxman Mohapatra v. State of Orissa, (1996) Cr. L.J. 4493 where brown sugar was seized from the appellant on 15.8.1991, however, it was kept in police Malkhana till production in court on 12.11.1991. In Laxman Mohapatra v. State of Orissa, (1996) Cr. L.J. 4493 where brown sugar was seized from the appellant on 15.8.1991, however, it was kept in police Malkhana till production in court on 12.11.1991. Relying on the decision of the Hon'ble Supreme Court in Valsala's case (supra), it was held by Orissa High Court that seized articles were produced after about three months and the materials on record did not indicate that the articles had been properly sealed and kept in safe custody during the period it remained in police Malkhana.23. In Antony Okoye v. State of West Bengal (1996) Cr.L.J. 4340 (Cal.), where appellant was convicted and sentenced to 20 years' rigorous imprisonment and a fine of Rs. 20 lakhs for having been found in possession of brown sugar concealed in ash-trays while being checked at Calcutta Airport. Relying on the decision of the Hon'ble Supreme Court in Valasala's case (supra), the Calcutta High Court held that till the conclusion of the trial before the trial judge, the material seized was kept in the godown of the Customs House and it was never produced before the court. No explanation has been given about the whereabouts of the material from 28.4.1990 to 18.5.1990. No explanation has been given as to when the material was taken for chemical examination. There are missing links and as these missing links have not been properly explained, it cannot be stated with certainty that the material that was seized and the material that was sent for chemical examination was the same.24. In Shyam Sunder @ Rathia Rana v. State of Orissa, 1997(2) EFR 504 (Ori.) , appeal was allowed by the Orissa High Court because there was no material on record to positively indicate that the seized articles were under proper custody, no explanation was offered by the prosecution as to why the seized articles were forwarded to the court on 25.4.1993 when the seizure was effected on 14.4.1993 and there was non-compliance of the provisions of Section 55 of the Act.25. In Jadumani v. State of Orissa (1997(2) EFR 529 (Ori.), one of the grounds on which appeal was allowed by the Orissa High Court was that sample alongwith the seal remained with the Sub-Inspector, Excise, for two weeks when he sent the samples to the Chemical Analyst, neither the seized articles nor the samples had been produced before the Magistrate when the accused was produced, there was no compliance of the provisions of Section 55, there was every possibility of the tampering with the sample and it could not be said that sample which was sent for chemical examination was, in fact, the sample drawn from the seized articles.26. This Court in Shambhu Lal & Ors. v. State of Rajasthan (S.B. Cr. Appeal No. 504/95 decided on 6th May, 1996) and Prakash Singh v. State of Rajasthan (2000(1) RCC 197) has held as under : "The production of seized articles is necessary, so that their chemical report can be corroborated with the seized articles but the learned Public Prosecutor is not able to show any evidence on record and in view of the cases referred above, the non-production of the case property 'Nal' in Court gives serious infirmity and doubt about the investigation." 27. In view of the discussion made above and keeping in mind the legal position as held in the above rulings, which are based on the decision of the Hon'ble Supreme Court in Valsala's case (supra), in absence of production of seized articles in Court, it cannot be said that what was seized from the accused appellant alone was sent to the Chemical Examiner.28. So far as the point No. 4 is concerned, no doubt both motbir witnesses, namely, P.W.1 Devilal and P.W.2 Jagdish have been declared hostile, but since the case of the prosecution is going to be rejected on other grounds, therefore, there is no need to discuss their evidence.29. In view of the findings on points Nos. 2 and 3, there is no need to discuss point No. 1, as it automatically stands covered while deciding points No. 2 and 3.30. In view of the findings on points Nos. 2 and 3, there is no need to discuss point No. 1, as it automatically stands covered while deciding points No. 2 and 3.30. For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused appellant for the offence under section 8/18 of the Narcotic Drugs And Psychotropic Substances Act and thus, the findings of the learned Special Judge convicting the accused appellant for the said offence are liable to be set aside and the accused appellant is entitled to acquittal.Accordingly, this appeal filed by the accused appellant Madan is allowed and the judgment and order dated 8.7.1996 passed by the learned Special Judge, NDPS Cases, Hanumangarh are set aside and the accused appellant is acquitted of the charge framed against him. Since he is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******