JUDGMENT 1. - These two appeals have been filed against one and the same judgment dated 8.10.2002 passed by the learned Special Judge, NDPS. Cases, Jodhpur, in Sessions Case No. 66/2001, whereby the accused-appellants have been convicted under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and each of them have been sentenced to 10 years' rigorous imprisonment with a fine of Rs. 1 lac., in default thereof to further undergo one year's rigorous imprisonment. 2. Briefly stated, the facts of instant case are that on 11.6.2001 at 2.00 a.m. Police Station Baytu received secret information from Mukhbir that one Jeep bearing No. RJ 19-C-1236 loaded with illegal poppy husk will reach the outskirts of Kolu for selling and in case Nakabandi is staged, illegal poppy husk can be recovered. On receiving this information, PW 1 Budha Ram SHO, Baytu, along with raiding party taking with them investigation box, scale, measurements etc., started from the police station in the Government jeep with its driver Jakir Hussain at 2.30 a.m. They started patrolling on the road leading to Batadu and at about 3.15 a.m. reached at 3 kms. towards village Kolu, where they staged Nakabandi. During the course of Nakabandi, at 5 a.m., one jeep came from the side of Kanod which was signalled by torchlight to stop by the dressed staff of police and when the jeep stopped its registration number were seen. The jeep was having Registration No. RJ-19-C-1236 and in the jeep along with driver one person was sitting. On asking, the driver disclosed his name as Birma Ram s/o Kishna Ram, resident of Gida and the person accompanying him stated his name to be Doongra Ram s/o Kojaram, resident of Chidiya. On checking of the jeep, gunny bags filled with poppy husk were found. Foot Constable Chanana Ram was sent for arranging one independent witness, who after his return stated that in the near vicinity there was no Dhani nor he could see any person there. Thereafter, in front of the two persons namely Haneef and PW 2 Achala Ram, who had gone with Chanana Ram for bringing some independent witness, notice under Section 50 of the Act was given to the accused-appellants in respect of search of the jeep and their consent was obtained. Thereafter, in front of the two persons namely Haneef and PW 2 Achala Ram, who had gone with Chanana Ram for bringing some independent witness, notice under Section 50 of the Act was given to the accused-appellants in respect of search of the jeep and their consent was obtained. In the search of the jeep, five gunny bags were found, which were unloaded from the jeep, and on opening were found to have contained poppy husk in plastic bags. Each of the bag weighed 40 kgs. including the bag and polythene bags therein and thus the total weight of five bags was 200 kgs. The driver of the jeep and the person accompanying him denied having any permit or licence in respect of said poppy husk and therefore the jeep was taken in custody of the police after preparing memo and from each of the bags two samples each of 500 grams was taken as sample for chemical examination and control sample. Both the accused were arrested and after returning to the police station, a case was registered. When the investigation completed, challan was filed in the Court, where charge under Sections 8/15 of the Act was framed, read over and explained to the accused. The accused denied the charge and claimed trial. 3. The prosecution produced 6 witnesses in support of its case and got exhibited 24 documents. 4. After closure of the prosecution evidence, statements of accused under Section 313, Criminal Procedure Code were recorded. Both the accused denied the prosecution case and claimed themselves to be innocent. Accused have stated that they have no concern with the recovered poppy husk and the jeep but the police has foisted a false case against them. 5. The learned Trial Court, after hearing both side, has convicted and sentenced the accused-appellants vide his judgment and order dated 8.10.2002 as indicated hereinabove. 6. Aggrieved by the said judgment of conviction and order of sentence, the present appeals have been preferred by the appellants. 7. Both the appeals filed by two accused- appellants arising out of the one judgment of the Trial Court are tagged and have come up for hearing on the board for hearing together, they are being disposed of by this common judgment. 8. The learned Counsel for accused- appellants have raised manifold contentions in this case which are being dealt hereunder one after another. 9. 8. The learned Counsel for accused- appellants have raised manifold contentions in this case which are being dealt hereunder one after another. 9. It has been contended on behalf of learned Counsel for the appellants that in the present case compliance of Section 42 has not been done inasmuch as that after sunset and before sunrise the search of the vehicle is said to have taken place without obtaining warrant and further no reason for non-obtaining warrant has been recorded, therefore, it is a case where mandatory provisions have not been complied with and the accused is entitled to acquittal. The learned Counsel has placed reliance on III (2002) SLT 155 : II (2002) CCR 71 (SC)=2002 Cr.L.R. (SC) 430, Beckodan Abdul Rehman v. State of Kerala and 2005 (2) Cr.L.R. (Raj.) 1205, Prahlada Ram v. State of Rajasthan. 10. The learned Public Prosecutor has contended that in the instant case secret information Ex. P1 recorded was sent to the S.P., therefore, it was not necessary in the above circumstances to have recorded the reasons for not obtaining the warrant. 11. I have considered the above submissions made before me. PW 1 Budh Ram is the Seizing Officer. He has stated in para 7 of his statement that it is correct to say that Nakabandi was staged after sunset and before sunrise and recovery of the contraband material was made before sunrise and after sunset. It has also been stated that it is correct that at that time he had not obtained the warrant of search from higher authorities in relation to the jeep bearing No. RJ-19-C-1236. He has also admitted that the information being reliable, no memo was prepared. PW 6 is Mangilal. He has stated that on 11.6.2001 while he was posted as Constable in the Police Station, Baytu, he took Ex. P1 with him to deliver the same to the S.P., and in the night at about 2 a.m. he started for the S.P. office and at about 3 a.m. he delivered Ex. P1. 12. In view of above two statements, wherein this admitted position has come that secret information was received on 11.6.2001 by PW 1 Budh Ram SHO, PS Baytu and he started from the police station at 2 a.m. for staging Nakabandi but no search warrant was obtained, it would be proper to discuss document Ex. P1 at this place. In Ex. In view of above two statements, wherein this admitted position has come that secret information was received on 11.6.2001 by PW 1 Budh Ram SHO, PS Baytu and he started from the police station at 2 a.m. for staging Nakabandi but no search warrant was obtained, it would be proper to discuss document Ex. P1 at this place. In Ex. P1, signatures are available at place 'C' to 'D' of S.P., Barmer bearing date 11.6.2001. This document is not the copy of secret information sent to S.P., Barmer but is original in itself as would appear from the statement of PW 1 Budhram. PW 1 Budhram has stated about Ex. P1 in pars 5 of his cross-examination that the secret information was received by him in police station at 2 a.m. in the night. Thereafter, he has stated that he received the information on telephone. He has also stated that the information recorded in Rojnamcha was not sent to the immediate higher officials and has further stated that the original was sent to S.P. Thus, it appears that the required search warrant has not been obtained and the search of the vehicle has taken place after sunset and before sunrise. 13. A perusal of Section 42 of the Act indicates that proviso below Clause (d) of Sub- section (1) provides that if search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Admittedly, this has not been done in the instant case. This provision is mandatory in nature and has not been complied in the present matter. 14. In Beckodan Abdul Rehntan, the Hon'ble Apex Court, while considering the provisions of Narcotic Drugs And Psychotropic Substances Act, particularly Sections 42 and 50 of the Act has held that the provisions of these sections are mandatory in nature and non- compliance thereof is fatal to the prosecution case. 15. 14. In Beckodan Abdul Rehntan, the Hon'ble Apex Court, while considering the provisions of Narcotic Drugs And Psychotropic Substances Act, particularly Sections 42 and 50 of the Act has held that the provisions of these sections are mandatory in nature and non- compliance thereof is fatal to the prosecution case. 15. In the case of Prahlada Ram, this Court in para 12 of the judgment while dealing the provisions of Section 42 of the Act made observations to the effect that when search is required to be made of a building, conveyance or place then to obtain a search warrant is necessary and in case in obtaining a search warrant the offender will get an opportunity to conceal the evidence or the delay in obtaining warrant may facilitate his escape then search may be affected of the abovesaid premises provided reasons are recorded for the same. 16. It has next been contended by the learned Counsel that no specimen seal was prepared at site and in fact a specimen seal Ex. P9 which is said to have been sent to FSL, appears to have been prepared subsequently by the police. It has further been contended that in the present case, neither the control sample, nor the samples received from the FSL or the contraband material said to be recovered from the possession of the accused have not been produced in the Court, therefore, the conviction and sentence recorded by the learned Trial Court deserves to be set aside. Learned Counsel in support of submissions placed reliance on 2004 (1) EFR 22, Jitendra and Anr. v. State of M.P. and 2005 (8) RDD 3346 (Raj.), Rohtas v. State. 17. On the other hand, it has been contended that in view of evidence available on record, it is amply proved that the contraband material was recovered from the possession of the accused and the same was deposited in the Malkhana and same reached the FSL in intact position. 18. I have considered the submissions made before me. 19. The learned Trial Court at page 10 in para 12 of the judgment has admitted this factual aspect that even if the contraband material is not produced in the Court then merely on the basis of not producing the contraband material in the Court by the prosecution, case of the prosecution cannot be thrown out. 19. The learned Trial Court at page 10 in para 12 of the judgment has admitted this factual aspect that even if the contraband material is not produced in the Court then merely on the basis of not producing the contraband material in the Court by the prosecution, case of the prosecution cannot be thrown out. In the instant case, it is an admitted position that neither samples nor the contraband material recovered from the possession of the accused have been produced. The learned Trial Court on the basis of statement of PW 1 Budhram the Seizing Officer, and PW 2 Achlaram (said to be the Motbir witness of the case), recorded its finding to the effect that prosecution case cannot be thrown out in view of their statements. As the contraband material recovered was not produced in the Court, this finding recovered by the learned Trial Court appears to be not a proper appreciation of evidence. It is required of the prosecution agency to produce before the Court the recovered material to ascertain the correctness of the statements of the witnesses. 20. Ex. P8 is the recovery memo and is an important document. Non-mentioning of the description of memo of specimen seal in the document creates doubt as to whether it was prepared at the spot or not. It further appears that from each of the bags (5 in number) two samples each of 500 grams were drawn as sample for chemical examination from the recovered contraband material poppy husk. 21. It is to be seen that in the instant case though Ex. P9, which is memo of specimen seal, said to have been sent to FSL, however, this document nowhere contains the signatures of the accused and contains signatures only of police officials and gives rise to suspicion about the preparation of this document subsequently in the absence of signatures of accused and further non-mentioning of preparation of this memo in the recovery memo or elsewhere. 22. The Hon'ble Apex Court, in the case of Jitendra v. State of M.P. , has said: "The evidence to prove that Charas and Ganja were recovered from the possession of accused consisted of the evidence of the police officers and Panch witnesses. The Panch witnesses turned hostile. 22. The Hon'ble Apex Court, in the case of Jitendra v. State of M.P. , has said: "The evidence to prove that Charas and Ganja were recovered from the possession of accused consisted of the evidence of the police officers and Panch witnesses. The Panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.R. Raj (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 Examiner 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 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. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. 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 Panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence under the Narcotic Drugs And Psychotropic Substances Act. In this case, we notice that Panchas have turned hostile so the Panchanama is nothing but a document written by the concerned police officer. The suggestion made by the defence in the 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 Panch 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 far fetched." 23. This Court also in the case of Rolrtas (supra), has observed that non-production of contraband material recovered from the possession of the accused would create doubt and it cannot be said that the prosecution case has been established beyond reasonable doubt. 24. In view of above discussed position, it appears that in the present case the contraband material alleged to have been recovered from the possession of accused and the samples, etc. not produced in the Court creates a doubt, which is sufficient to draw a presumption that prosecution has not led satisfactory evidence before the Court regarding alleged recovery of the contraband material from the accused- appellants. In the present case, no independent Motbir witness is available. PW I Budhram, SHO, Police Station, Baytu has stated that in the morning at about 7 Chanana Ram was sent to bring Motbir but no Motbir was found. Chanana Ram has not been produced in evidence to prove the fact that he had gone to bring Motbir witnesses. In the present case, no independent Motbir witness is available. PW I Budhram, SHO, Police Station, Baytu has stated that in the morning at about 7 Chanana Ram was sent to bring Motbir but no Motbir was found. Chanana Ram has not been produced in evidence to prove the fact that he had gone to bring Motbir witnesses. Further, no memo in this regard has been prepared. In the absence of independent Motbir witnesses and also taking into consideration the law laid down by the Hon'ble Apex Court in the case of Jitendra Singh (supra), it was essential for the prosecution to have produced contraband material recovered from the possession of the accused in the Court during trial, which admittedly has not been produced in the present case, therefore, the contention of the learned Counsel for the appellants requires to be accepted. 25. It has next been contended that the prosecution case is also doubtful in relation to taking out the samples. According to the learned Counsel, some of the witnesses say that the samples were taken out were of 250 grams while some says that it were of 500 grams. It has also been contended that there is also a doubtful situation in the present case as to when the sealed samples were sent to FSL. According to the learned Counsel for accused- appellants, if the prosecution has not led satisfactory evidence in relation to sending the samples intact to the FSL, then the case of the prosecution becomes doubtful and the accused-appellants are entitled for acquittal. 26. On the other hand, learned Public Prosecutor has contended that the prosecution has led sufficient evidence to prove that the contraband material was recovered from the possession of the accused and the same reached the FSL in intact position and were kept in Malkhana in sealed condition. I have considered the submission made before me. In the present case PW 1 the Seizing Officer has stated in para 2 of the statement that five gunny bags were found in the jeep and each bag contained 40 kgs. of poppy husk and the total weight of the contraband material was 200 kgs. He further states that from each bag two samples of 250 grams were taken and the same were sealed at the spot. of poppy husk and the total weight of the contraband material was 200 kgs. He further states that from each bag two samples of 250 grams were taken and the same were sealed at the spot. It is important to note here that the Seizing Officer in his statements says that samples of 250 grams were taken whereas in Ex. P8 the recovery memo the samples drawn are shown to be of 500 grams. 27. Ex. P17 are the entries made in the Malkhana Register. In this document, a note has been appended in Column No. 6 to the effect that samples were sent on 13.6.2001 through Road No. 29 on 13.11.2001 through Constable Mangilal for depositing the same in the FSL. Ex. P19, which is the Road Certificate, makes a mention that 5 sealed packets were sent to the S.P. Office, Barmer and were delivered to Mahipal Singh for obtaining forwarding letter. Thus, it appears that weight of the sample which was taken at the spot, as per the statement of PW 1 was 250 grams while as per recovery memo it was 500 grams. There is variance in weight and the date on which the samples were taken by Mangilal PW 6. Thus, simply on the basis of the FSL Report, wherein it has been mentioned that sealed samples were received, in my considered opinion, it will not be sufficient to presume that the samples remained in the Malkhana in intact position and the samples sent were the same which were drawn at the spot as in the present case preparation of memo of specimen seal is also doubtful. Further, there is no Motbir independent witness in the case and the members of the raiding party were made the Motbirs of the case on the pretext that even after making efforts no independent witness could be procured. 28. After having examined the matter thoroughly, I am of the opinion that in the instant case when Motbir witnesses have not been procured, the evidence of the police witnesses requires more cautious scrutiny and it should inspire confidence before recording conviction of the accused-appellants under the provisions of Narcotic Drugs And Psychotropic Substances Act. 28. After having examined the matter thoroughly, I am of the opinion that in the instant case when Motbir witnesses have not been procured, the evidence of the police witnesses requires more cautious scrutiny and it should inspire confidence before recording conviction of the accused-appellants under the provisions of Narcotic Drugs And Psychotropic Substances Act. In the present case, in all , six witnesses have been produced by the prosecution and out of those 6 witnesses, PW 1 is the Seizing Officer, whose statement when read as a whole creates doubt in the prosecution story with regard to sending the samples to the FSL. The entries in the Malkhana Register in relation to sending of samples also appears to be doubtful. Thus, the conviction of guilt recorded by the learned Trial Court against the accused-appellants deserves to be quashed and set aside. 29. In the result, appeals succeed, judgment of conviction and order of sentence recorded against accused-appellants by the learned Trial Court vide its order dated 8.10.2002 in Sessions Case No. 66/2001 is set aside and the accused-appellants are acquitted of the charge framed against them. They are in jail. They be set at liberty, if not required in any other case.Appeals allowed. *******