Judgment A. H. JOSHI,J. ( 1 ) THE accused were tried in special Criminal Case No. 35 of 2002 under sections 21 (b) and 29 of the Narcotic drugs and Psychotropic Substances Act, 1985 by the Special Judge, Nagpur. ( 2 ) THE accused were convicted by the learned Special Judge, under section 36-A of the N. D. P. S. Act, for the offence punishable under section 21 (b) r/w section 29 of the N. D. P. S. Act, and sentenced them to suffer R. I. , for 5 (five) years and to pay fine of Rs. 50,000/- and in default to suffer further R. I. , for six months on each counts ie. , for the offence punishable under section 21 (b) and section 29 of the N. D. P. S. Act. ( 3 ) THE learned Special Judge framed charge against the accused No. 1 i. e. Vinod for being found in possession of a total 8 grams of gard (Brown Sugar i. e. Diacetylmorephine) comprised in 27 small pudies on his person and further charged accused No. 2 i. e. Bhojraj for being found in possession of a total 7 grams of gard (brown sugar i. e. Diacetylmorephine) comprised in 20 pudies on his person, which was for sale or distribution and without any licence, authorisation or permit and in contravention of section 8 (c) of the N. D. P. S. Act and secondly, the accused were also charged for being a party to a criminal conspiracy to commit the offence punishable under section 21 (b) of the N. D. P. S. Act and therefore, they committed offence punishable under section 29 of the N. D. P. S. Act. ( 4 ) THE finding that the accused are guilty has been arrived at by learned trial court, as can be seen from what the trial court has discussed in para 21, and ultimately recorded that :"in view of the discussion, I hold that the prosecution has established the point of search and seizure and that the contraband gard (diacetylmorphine) was seized from the accused. The accused have not produced any licence, authorisation or permit for possession of the contraband. The accused have not produced any licence, authorisation or permit for possession of the contraband. In view of the presumption as available under section 54, once the possession of the illicit articles is proved, it can be presumed unless and until the contrary is proved that the accused has committed the offence under the Act for the possession of the particular contraband, for the possession of which the accused fails to accounts satisfactorily, I find that the presumption as available under section 54 of the Act can be legitimately raised in this case. The fact that the contraband gard was packed in small pudies as many as 27 with the accused No. 1 Vinod and 20 with accused No. 2 Bhojraj, it can be safely inferred that the contraband was for sale or the distribution. I therefore, answer the point Nos. 1 and 2 in the affirmation. 22. As to point No. 3 :- This pertains to the conspiracy between the accused to commit the offence under section 21 (b) of the Act. The direct evidence about the conspiracy is seldom available. Inference about the conspiracy has to be drawn from the objective circumstances established on record. In the present case, it has been proved that both the accused were together standing at a public place and both of them were found in possession of contraband gard packeted in small pudies. The prior information received by the raiding officer is also substantiated by the subsequent recovery which is proved. I have already noticed that it can be safely presumed that the contraband was for sale or distribution as it was comprised in small pudies and both the accused were found in possession of the same together at a public place. In this view of the matter, I hold that the prosecution has also established a conspiracy between the accused to commit the offence punishable under section 21 (b) of the N. D. P. S. Act. The point is accordingly answered in the affirmative. "[page 180 to 181 of Paper Book] ( 5 ) THE conviction is challenged on the grounds as raised in appeal memo, but more precisely on the grounds namely :- (a) Exh. The point is accordingly answered in the affirmative. "[page 180 to 181 of Paper Book] ( 5 ) THE conviction is challenged on the grounds as raised in appeal memo, but more precisely on the grounds namely :- (a) Exh. 25 the C. A. Report does not reveal the procedure and tests undertaken while carrying out the analysis which resulted in detecting "diacetylmorphhine" in the material sent for analysis, and therefore, this c. A. Report cannot be relied upon in view of judgments namely :- (A) 2005 (Supp.) Bom. C. R. (Cri.) (N. B.)406 : 2004 all. M. R. (Cri.) 3053, (Raju Girdharilal shrivastav v. State of Maharashtra ). (B) 1998 (5) Bom. C. R. (P. B.)438 :1998 (2) Mh. LJ. 884, (Nicklaus Peter Heel v. State of Goa ). (b) Entire seized material was not produced before the Court which omission is fatal to prosecution as held by Apex Court in 2004 s. C. C. (Cri.) 2028, (Jitendra and another v. State of Madhya Pradesh ). (c) Section 42 of N. D. P. S. Act was not complied with as the raiding officer P. W. 1 admitted in cross-examination that he has conducted the raid before getting directions of superior officer. (d) Physical description of powder given by different witnesses varies, namely :- according to P. W. 1 Exh. 12. it is faint greyish powder. In C. As report Exh. 25, it is brown coloured powder. In Panchanama Exh. 18, it is faint dusky white. And this creates doubt about what was the contraband material seized and what was tested, etc. ( 6 ) LEARNED APP Shri D. B. Patel placed reliance on section 52-A of N. D. P. S. Act and argued that it is not imperative to produce entire seized material, as law permits and lays down other procedure. This submission needs to be dealt with since this aspect has not been ruled even in the judgment of Apex Court namely 2004 s. C. C. (Cri) 2028 relied upon by the appellant. Discussion in this regard will be done at suitable place in this judgment. ( 7 ) ON scrutiny of evidence and testing the submissions advanced by appellant as well as prosecution, it is seen that the case gets decided in favour of appellants on the point (a) and (b) in foregoing para, whatever be the effect of points (c) and (d ). ( 7 ) ON scrutiny of evidence and testing the submissions advanced by appellant as well as prosecution, it is seen that the case gets decided in favour of appellants on the point (a) and (b) in foregoing para, whatever be the effect of points (c) and (d ). ( 8 ) IT is seen from record that Exh. 25, the c. A. report is sought to be proved by P. W. 1 abdul Sattar P. I. Crime Branch at Exh. 12. The Chemical Analyser is not examined. The report Exh. 25 is thus not proved. ( 9 ) HAD C. A. Report Exh. 25 been proved and no particulars of tests and procedure taken not been proved, the report would posses no evidentiary value, as is the dictum of precedents relied upon by appellant in a and b herein below. (A) 2004 All. M. R. (Cri.) 3053, Raju Girdharilal shrivastavv. State of Maharashtra, (B) 1998 (5) Bom. C. R. (P. B. J438 : 1998 (2) mh. L. J. 884, Nicklaus Peter Heel v. State of Goa. ( 10 ) FAILURE to produce entire seized contraband substance needs to be dealt with. The case proceeds on admitted facts that samples which were corresponding to those sent for chemical analysis were produced before the Court and not entire contraband material. This act of abstinence of police vitiates proof of seizure. Appellant has correctly placed reliance on judgment of Apex court in 2004 S. C. C. (Cri) 2028, and no room for two opinions is now available. The issue is finally concluded and the aforesaid judgment binds and governs the issue. ( 11 ) NOW coming to the submission of learned APP, it is seen that section 52-A of n. D. P. S. Act empowers the investigating machinery to deal with the situation where the contraband material cannot be preserved, stored or brought before the Court due to its nature, volume etc. ( 11 ) NOW coming to the submission of learned APP, it is seen that section 52-A of n. D. P. S. Act empowers the investigating machinery to deal with the situation where the contraband material cannot be preserved, stored or brought before the Court due to its nature, volume etc. Procedure prescribed therein reads as follows:-"section 52-A. Disposal of seized narcotic drugs and psychotropic substances.- (1) the Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the Officer-in-charge of the nearest Police Station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such narcotic drugs or psychotropic substances 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 the officer referred to in sub-section (1) may consider relevant to the identify of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or 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. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the magistrate, as primary evidence in respect of such offence. " if the procedure is followed prescribed in sub-sections (1) to (3), normal rule of evidence of proof of seizure which includes production of evidence of original articles before court gets dispensed, as can be read from sub-section (4) of section 52-A of N. D. P. S. Act. ( 12 ) SUBMISSION of learned APP Shri D. B. Patel, when can be commented but, it cannot be accepted on facts as the burden that did rest on the prosecution under section 52-A of N. D. P. S. Act, has not been shown to have been discharged by it nor did facts justify recourse to this special procedure. ( 13 ) IN the result, this Court reaches the conclusion that the judgment and order of conviction and sentence is based on no evidence as the prosecution has failed to prove both seizure of contraband material and that the material seized is a contraband substance and deserves to be set aside. In view of this finding, other points do not call for any discussion. ( 14 ) THE appeal is therefore, allowed. The judgment and order of conviction and sentence is set aside. Appeal allowed.