JUDGMENT 1. - Appellant Rohtas by this appeal under Section 374, Criminal Procedure Code has challenged the judgment and order dated 24.5.2003 passed by learned Special Judge, NDPS Cases, Hanumangarh in Criminal Case No. 18/2002, whereby he has been convicted for offence under Sections 8/15(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentenced to imprisonment for 10 years and a fine of Rs. 1 lac, in default thereof to further suffer simple imprisonment for one year. 2. Briefly stated, the facts of the present case are that on 6.6.2002 at 3 p.m. PW 13 Harvinder Singh holding charge of SHO, Bhadra was informed by one Police Mukbir at the police station about Rohtas s/o Pratap Singh Beniwal and Heeralal s/o Bandhram, both residents of Ramgadiya, bringing poppy husk from Rajgarh side in Jeep No. DED 7227 and carrying it for illegal sale in either Punjab or in Haryana and also informing to the effect that if they were not accosted, they may escape. A memo of this information was prepared and sent with PW 3 Sumer Singh FC No. 1158 to the Superintendent of Police, Hanumangarh and an entry in that regard was also made in the Rojnamcha. Thereafter, S.I. PW 13 Harvinder Singh, Incharge SHO along with PW 7 Banwarilal SI, PW 1 Rambhanj HC, PW 4 Fateh Singh HC, Suresh Kumar FC, Mahendramgh FC and Driver Shambhoo Dayal and also taking with them Investigation Box, Seal of the Police and quartz scale, started in Government Jeep at 3.15 p.m. and reached near Bhadhara Court. Two Motbirs were called through PW 1 Rambhaj, HC and in turn he brought with him PW 10 Surendra Singh and PW 2 Satpal. They were given notice about their consent for search and they agreed. Thereafter, taking these two Motbirs with them, the police jeep reached on the Rajgarh road leading towards Dobi village at 4 p.m. and there the police started Nakabandi. At about 4.20 p.m., a cream colour jeep bearing No. DED 7227 came from Rajgarh side and it was given signal to stop but seeing the police party the driver of the jeep turned the jeep in the right side of the road and the person sitting on left side of the jeep fired at police party, however, the shot missed and did not touch anyone. The jeep came to a halt on the kacha way on a sand dune. Sub-Inspector PW 13 Harvinder Singh and one other police personnel covered the jeep and asked the two persons sitting in the jeep their names. One of them sitting by the side of Driver stated his name Rohtas s/o Pratap Singh Beniwal and the other who was the driver of the jeep stated his name to be Heeralal s/o Bandhram. They were told that there was suspicion about their having poppy husk and by giving separate notice to each of them they were informed that they could give their search before a Magistrate or Gazetted Officer but the accused gave their consent for search by PW 13 Harvinder Singh, SI. Separate memos of their consent were prepared and when Rohtas was searched by PW 13 Harvinder Singh, in his pant pocket one country made 315 bore pistol and from the pocket of T-shirt two live cartridges were found, which were seized. In addition to that, in personal search of Rohtas, cash Rs. 30/- and the copy of notice given to him was found. In the personal search of other accused Heeralal Driver, Driving Licence RJ-31 40516 in his name was found. On search of the jeep, 10 gunny bags of poppy husk were recovered. The gunny bags after taking down from the jeep were opened and the material contained therein on seeing, smelling and tasting by the SHO, other police officials and Motbirs was found to be poppy husk. The weight of each and every bag was 38 kgs. and in all 380 kgs. poppy husk along with gunny bags was recovered. PW 4 Fateh Singh FC was sent for bringing 'Tirpal' (tarred canvas) and after bringing it the gunny bags were emptied on that and the poppy husk material was mixed. Two samples of 1 kg. each was taken from that poppy husk in polythene bags which were then kept in cloth bags and sealed. The sealed cloth bags were marked 'A' and 'B'. Rest of the poppy husk was again filled in the gunny bags and weighed then all the 9 bags weighed 38 kgs. each while the last 10th bag weighed 36 kgs. All these gunny bags were sealed with signature slips and marked 'C' to 'L'. The accused were arrested. The sealed cloth bags were marked 'A' and 'B'. Rest of the poppy husk was again filled in the gunny bags and weighed then all the 9 bags weighed 38 kgs. each while the last 10th bag weighed 36 kgs. All these gunny bags were sealed with signature slips and marked 'C' to 'L'. The accused were arrested. Memo of specimen seal was prepared and copy of which was given to Motbir PW 10 Surendra Singh. Jeep was seized and the memo of search and seizure was prepared. The recovered poppy husk in sealed gunny bags, jeep and accused were brought to the police station and the memos of recovery were produced before SHO PW 9 Banshilal, who till then had reached the police station. On the basis of that, FIR No. 194/02 against accused under Sections 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 Sections 307/34 of Indian Penal Code and Section 27 of Arms Act was registered. Recovered poppy husk bags, sealed sample and control sample, and other evidence of recovery were deposited in the Malkhana of police station. A factual report of search, seizure and recovery was prepared and sent to the Superintendent of Police. 3. During investigation, Site-plan and Site-inspection Note were prepared and statements of witnesses were recorded. To get examined the sample marked 'A' of poppy husk, letter was written to the Superintendent of Police and the sample was sent to the FSL for examination. On completion of investigation, challan against accused was filed. Charge under Sections 8/15 of the Narcotic Drugs And Psychotropic Substances Act, 307, Indian Penal Code and Section 27, Arms Act was framed against present accused-appellant while charge under Sections 8/15 of the Act and Section 304 read with Section 34 Indian Penal Code was framed against accused Heeralal on 21.9.2002 and read over to them. The accused denied having committed any offence and claimed trial. 4. The prosecution, in support of its case, examined as many as 13 witnesses and exhibited several documents. 5. Accused Rohtas during his examination under Section 313, Criminal Procedure Code denied the prosecution case and the evidence produced by prosecution. He stated that the police had taken him from Hissar Bus-stand to the police station and there SHO PW 13 Harvinder Singh gave him beatings and caused injuries to him. 5. Accused Rohtas during his examination under Section 313, Criminal Procedure Code denied the prosecution case and the evidence produced by prosecution. He stated that the police had taken him from Hissar Bus-stand to the police station and there SHO PW 13 Harvinder Singh gave him beatings and caused injuries to him. He further stated that just because he had said that he would complaint against Harvinder Singh, he has been involved in this false case. He also stated that he had no concern with the recovered jeep and the poppy husk. Accused Heeralal stated that he was not the driver of the jeep nor any poppy husk was recovered from his possession. The accused, in their defence, got examined DW 1 Dharmpal, DW 2 Nathuram, DW 3 Ramkumar and DW 4 Chunnilal. 6. The learned trial Judge, after hearing both sides, acquitted accused-appellant Rohtas for the offence under Section 307 Indian Penal Code and Section 27, Arms Act and acquitted Heeralal for offence under Sections 307/34, Indian Penal Code, however, convicted both the accused persons under Sections 8/15(C) of the Act and sentenced each of them 10 years rigorous imprisonment with a fine of Rs. 1 lac, in default to further undergo one year's rigorous imprisonment. The benefit of set-off under Section 428, Criminal Procedure Code was allowed to the accused persons and while passing orders for return of jeep to Birbal, the cash amount of Rs. 30/- seized from Rohtas was ordered to be returned to accused-appellant Rohtas after expiry of the period of limitation for filing appeal. 7. Aggrieved by the aforesaid judgment of conviction and order of sentence, accused Rohtas has filed the present appeal challenging his conviction and sentence passed against him by the learned Trial Court vide its judgment and order dated 24.5.2003. 8. It was contended by learned Counsel for accused-appellant that the person arresting the accused was not authorised to do so. According to him, as per prosecution story the SHO of the police station was PW 9 Bansilal and he handed over the charge of police station to PW 13 Harvinder Singh temporarily but as per Ex. P35A on 6.6.2002 at 3.15 p.m. PW 13 SI Harvinder Singh had also given the temporary charge of police station to Om Prakash SI and as such he was simply a Sub-Inspector after that. P35A on 6.6.2002 at 3.15 p.m. PW 13 SI Harvinder Singh had also given the temporary charge of police station to Om Prakash SI and as such he was simply a Sub-Inspector after that. He further contended that the prosecution has failed to comply with the provisions of the Act and there is no evidence on record about sending prior information about search to the immediate official superior. The learned Counsel further contended that the entire recovered material was mixed and then out of that mixed material samples were taken and rest was again filled in the bags and as such it cannot be said that in all the 10 bags there was contraband material. According to learned Counsel, it was required of the officer concerned to have drawn separate samples from each bag. He also contended that before the Trial Court the prosecution has failed to produce any material alleged to have been recovered from the accused and in a situation when nothing was recovered from the accused there was no question of its production before the Court and then it cannot be accepted that contraband material was recovered from the accused and out of that sample was taken and sent to the FSL. In the last, he submitted that the Trial Court has seriously erred in appreciating the evidence inasmuch as that there are several contradictions/improvements in the statements of witnesses which falsify the prosecution case and hence the appellant deserves to be acquitted. 9. On the other hand, learned Public Prosecutor submitted that the provisions of the Act and procedure prescribed were duly followed in the case and he supported the judgment of learned Trial Court. According to him, there is no inconsistency in the statements of the prosecution witnesses and the prosecution has been able to prove its case beyond all reasonable doubts against accused-appellant, as such, the conviction and sentence awarded to him deserves to be maintained. 10. I have heard learned Counsel for the parties and given my thoughtful consideration to the material available on record. 11. 10. I have heard learned Counsel for the parties and given my thoughtful consideration to the material available on record. 11. In view of the submissions made before me, now it is to be seen as to whether the contention raised by the learned Counsel that trial in the present case is vitiated as the seizure was effected by a person who was not authorised under the provisions of the Narcotic Drugs And Psychotropic Substances Act particularly under Section 42 of the Act. 12. The relevant evidence in this connection is of PW 9 Bansilal and PW 13 Harvinder Singh. PW 9 Bansilal has stated that on 6.6.2002 he was SHO of Police Station, Bhadara, on that day at about 12.12 noon he had gone to attend a meeting taken by the Collector outside the police station and in this regard entries were made in the Rojnamcha. The witness has proved Entry Ex. P21 in the Rojnamcha. The witness has stated that he came back to the police station at about 9 p.m. on the same day. The witness has also stated that charge of the police station was handed over by him to PW 13 Harvinder Singh S.I. The witness has thus proved two documents Ex. P21 and Ex. P22. Ex. P21 is the entry made in the Rojnamcha, the copy thereof is Ex. P21A dated 6.6.2002, which indicates that Bansilal PW 9 had gone out of police station after handing over charge to PW 13 Harvinder Singh. Ex. P22 is also a Rojnamcha entry, copy of which is Ex. P22A, which is in relation to PW 9 Bansilal's coming back to the police station. PW 13 Harvinder Singh in his statement has stated about his taking over charge of the police station from PW 9 Bansilal on 6.6.2002 because PW 9 Bansilal, the SHO of the police station had gone out for some Government work. This witness has also stated that after receipt of the secret information regarding the present case he started from the Thana after handing over charge to Om Prakash S.I. at about 3.15 p.m. He has also stated that Ex. P35 entry in this regard was made in the Rojnamcha. Thus, the above two statements amply prove the fact that PW 9 Bansilal was the SHO of the police station and he handed over charge of the police station to PW 13 Harvinder Singh. P35 entry in this regard was made in the Rojnamcha. Thus, the above two statements amply prove the fact that PW 9 Bansilal was the SHO of the police station and he handed over charge of the police station to PW 13 Harvinder Singh. 13. It shall be proper to refer here a Division Bench decision of Bombay High Court in Joseph Fernandes v. State of Goa, I (1996) CCR 214=1996 Cri.L.J. 822 , wherein following observations were made: "The learned Public Prosecutor in fact rightly contended that any irregularity in the investigation by itself does not vitiate a trial unless the investigation is done contrary to the mandatory provisions of law or that any prejudice is caused to the appellant. It is not necessary to consider the point in detail since the matter is covered by a decision of a Division Bench of this High Court which was brought to our notice by the learned Public Prosecutor. In a recent unreported judgment of a Division Bench of this Court dated 13th July, 1995 in Criminal Appeal No. 28/94 (Dilkush Ganpat Singi v. State of Goa) , a similar or identical question was canvassed. Then, the Division Bench referred to an unreported decision of a learned Single Judge of this Court in Criminal Miscellaneous Application No. 134/92 (Rodney E. Joseph v. State of Goa) delivered on 28th August, 1992 , and endorsed the view of the learned Single Judge in the following words- 'a learned Single Judge of this Court held that the investigation done by the Anti-Narcotic Cell despite ti to fact that it was not declared as a police station and its officers were not invested with the powers of officer-in-charge of the police station, did not render the investigation null and void or vitiate the trial unless it was shown that the accused was prejudiced as a result of the alleged irregularity in this behalf. We are of the same view. We are not satisfied that the accused suffered any prejudice or that there was any miscarriage of justice merely because the investigation of the offence was conducted by P.S.I. Poduvai (PW 3).' We respectfully agree with the above observations. We are of the same view. We are not satisfied that the accused suffered any prejudice or that there was any miscarriage of justice merely because the investigation of the offence was conducted by P.S.I. Poduvai (PW 3).' We respectfully agree with the above observations. Even in the present case nothing is pointed out to us as to how any prejudice was caused by the continuation of investigation by the Sub-Inspector of Anti-Narcotic Cell and not by the Sub-Inspector of Calangute Police Station. We do not find that any miscarriage of justice has been done by Smt. Sunita continuing the investigation. As already pointed out, as far as the appellant is concerned, no further investigation is done except the first recovery and subsequently getting the report from the Chemical Examiner." 14. A decision of this Court in Ram Swaroop v. State of Rajasthan, 1996 Cr.L.J. 4059 , is also relevant to take note of in which observations have been made as under: "Section 42 of the Narcotic Drugs And Psychotropic Substances Act lays down that any officer of the department mentioned in this section superior in rank to peon, sepoy or constable empowered in this behalf by general or special order by the Central or State Government as the case may be, may take action as provided under Section 42 of the Narcotic Drugs And Psychotropic Substances Act and conduct search and seize narcotic drugs of psychotropic substances or any documents or other articles which may furnish evidence of commission of such offence as mentioned under Chapter 4 of Narcotic Drugs And Psychotropic Substances Act. State Government has empowered by Notification S.O. 115 dated 16.10.86 all the Sub-Inspectors posted as SHO to act under Section 42 of the Narcotic Drugs And Psychotropic Substances Act. I am of the view that the posting of SHO may be by special order/general order also. If a SHO of police station is out of the police station and if Sub-Inspector is working in his absence as in charge SHO police station then that Sub-Inspector is SHO for all purposes and he will be deemed to have been posted as such by general order making arrangement for work by Sub-Inspector as in charge of police station. No separate or specific order is again necessary for posting him as Station House Officer. No separate or specific order is again necessary for posting him as Station House Officer. The Sub-Inspector though in charge, is SHO as posted there and he is, therefore, empowered to act tinder Section 42 of the Narcotic Drugs And Psychotropic Substances Act". 15. In view of above authoritative pronouncements of this Court as well as of Bombay High Court, it appears that the contention raised by the learned Counsel that in the present case PW 13 Harvinder Singh was not the SHO of the Police Station, Bhadara at the relevant time, therefore, the seizure made by him was unauthorized and as such the trial is vitiated, is not tenable. 16. It was also contended that since the secret information recorded in this case has not been immediately sent to the immediate officers, the trial is vitiated and the accused is entitled to be acquitted. I do not find any substance in the contention for the simple reason that PW 13 Harvinder Singh, who is the seizing officer, has stated that on 6.6.2002 while he was holding temporary charge of the police station, he received a secret information from Mukbir and the same was recorded in Fard Ex. P12. He has further stated that the information so recorded was also entered in Rojnamcha Ex. P34 and was handed over to PW 3 Sumer Singh to deliver the same to the Superintendent of Police concerned. PW 3 Sumer Singh has stated that on 6.6.2002 he was posted in the Police Station, Bhadara as Head Constable and PW 13 Harvinder Singh gave him one envelope which was containing the secret information given by the Mukbir. He has also stated that he took that envelope and delivered it on the very same day at 11.30 in the night to the S.P. Meghchand Meena. The witness has further stated that he obtained receipt of the S.P. on Ex. P12 at place 'A' to 'B'. The witness has also proved the entries made in the Rojnamcha in relation to his starting from police station and coming back to the police station, which are Ex. P13 and P14. Nothing material has come in the cross-examination to suggest that the witnesses were telling something which did not happen, then it cannot be presumed that the witnesses are telling be. P13 and P14. Nothing material has come in the cross-examination to suggest that the witnesses were telling something which did not happen, then it cannot be presumed that the witnesses are telling be. These witnesses have clearly stated that the secret information was recorded and a Fard was prepared and the same was also entered in the Rojnamcha. There is a receipt of the delivery of information to the S.P. and in view of above, the argument of the learned Counsel stands rejected. 17. Another contention of the learned Counsel has been that in the instant case as the recovered contraband material (10 bags of poppy husk) was not produced in the Court, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt against the accused-appellant. 18. It is not disputed before me that in the present case the contraband material (poppy husk) alleged to have been recovered from jeep bearing No. DED 7227 driven by accused Heeralal has not been produced in the Court. The 10 gunny bags in all were containing nearly 380 kgs of poppy husk. The poppy husk in gunny bags were emptied on a tarred canvas and thereafter it was mixed and two samples of 1 kg. each were taken out and were marked as 'A' and 'B'. The remaining poppy husk was again put in those gunny bags and same were sealed. 19. In view of admitted position in the present case as it has also come in the evidence of PW 13 Harvinder Singh, PW 4 Fateh Singh, PW 1 Rambhaj and PW 7 Banwari that poppy husk recovered from the possession of the accused persons was in fact not produced in the Court as in the statements of these witnesses there is only a reference of sample Article 1 which was taken at the time of recovery of the contraband material. In the statement of PW 13 though it has come that the recovered material was deposited in the police station but this fact has not been denied that the contraband material recovered from the accused was not produced in the Court. 20. The Hon'ble Court Supreme Court, in the case reported in V (2003) SLT 554 : IV (2003) CCR 78 (SC) : 2003 Drugs Cases (Narcotics) 276, Jitendra and Anr. 20. The Hon'ble Court Supreme Court, in the case reported in V (2003) SLT 554 : IV (2003) CCR 78 (SC) : 2003 Drugs Cases (Narcotics) 276, Jitendra and Anr. v. State of M.P. , in paras 5 and 6 has observed as under:- "The evidence to prove that Charas and Ganja were recovered from the possession of accused consisted of the evidence of the police officers and the Panch witnesses. The Panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra (PW 7), Angadsingh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of accused. The Charas and Ganja alleged to have been seized from the possession of the accused were not even produced before the Trial Court, so as to connect it with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested' testimony of police officers, to show that the Charas and Ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although, the High Court noticed the fact that the Charas and Ganja alleged to have been seized from the custody of the accused had neither been produced in the Court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiners in a properly sealed condition and those were found to be Charas and Ganja. The High Court observed, 'non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced'. The High Court relied on Section 465 of the Criminal Procedure Code to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of Charas and Ganja were seized from the possession of the accused. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of Charas and Ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of Panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the Narcotic Drugs And Psychotropic Substances Act. In this case, we notice that Panchas have turned hostile so the Panchnama is nothing, but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say, that, despite the Pancha witnesses having turned hostile, the non-examination of the Investigating Officer and non-production of the seized drugs, the conviction under the Narcotic Drugs And Psychotropic Substances Act can still be sustained, is farfetched." 21. In the case reported in 2001 (1) RCC 197, Prakash Singh v. State of Rajasthan , this Court while considering the same situation quoted the law laid down by the Hon'ble Apex Court and other High Courts. The relevant paras 30 to 36 of the judgment are reproduced hereunder: 30. 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. 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 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. 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. 31. The next point is what would be its effect on the prosecution case. 32. In Kabu @ Khudia v. State of Rajasthan, 1991 Cr.L.R. (Raj.) 183 , this 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. 33. In Valsala v. State of Kerala, 1991 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 big gap and important missing link. 34. The Bombay High Court in Mainuddin Kasim Mulla v. State of Maharashtra, 1991 (2) EFR 167 , 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. 35. This Court in Shambhu Lal and Ors. v. State of Rajasthan, S.B. Cr. Appeal No. 504/ 95 decided on 6th May, 1996 ) has held as under- 'the production of seized articles is necessary, so that their chemical report can be corroborated with the seized article, 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.' 36. In view of the fact that in the present case articles have not been produced in the Court during trial, it cannot be said that case of the prosecution has been established beyond reasonable doubt. Thus, accused appellant Prakash Singh is entitled to acquittal on this ground also." 22. In view of the fact that in the present case articles have not been produced in the Court during trial, it cannot be said that case of the prosecution has been established beyond reasonable doubt. Thus, accused appellant Prakash Singh is entitled to acquittal on this ground also." 22. In view of the fact that contraband material recovered from the possession of the accused was not produced in the Court as a link evidence to show that actually the samples were drawn from the alleged material, in such a circumstance, the accused cannot be held guilty in view of the law laid down by the Hon'ble Supreme Court. In this case, it is now not necessary to discuss the other evidence which is of police officials and members of the raiding party available on record regarding keeping the contraband material in Malkhana and sending the sample to the FSL. The Motbir witnesses PW 2 Satpal and PW 10 Surendra Singh in this case have turned hostile and they have not supported the prosecution story. 23. The accused-appellant has been acquitted of the charge under Section 307 Indian Penal Code and Section 27 of the Arms Act for the reason that neither the country-made 315 bore pistol used in crime by the accused and the cartridges recovered were produced in the Court nor any expert opinion was produced in that regard, and therefore, a part of the story has already been discarded by the learned Trial Court and against which there is no appeal filed by the State and the remaining part on account of contraband material, alleged to have been recovered from the possession of accused, having not been produced in the case further weakened the case of the prosecution as has been discussed hereinabove. 24. In view of aforesaid discussion and keeping in view the legal position of the case particularly when this factum has not been disputed that the poppy husk which is alleged to have been recovered from the accused in 10 gunny bag was never produced in the Court, it cannot be said that the prosecution was able to establish its case beyond reasonable doubt. If that is so, then the accused is entitled to acquittal on this count. 25. If that is so, then the accused is entitled to acquittal on this count. 25. In the result, the appeal succeeds, the judgment and order dated 24.5.2003 passed by Special Judge, NDPS Cases, Hanumangarh to the extent convicting and sentencing the accused-appellant under Sections 8/15(C) of the Act is set aside and he is acquitted of the charge giving him benefit of doubt. He is in jail. He be set at liberty forthwith if not required in any other case.Appeal allowed. *******