Judgment ( 1. ) THE appellants have filed this appeal, challenging the impugned judgment dated 01. 11. 2007 of the learned Special Judge (under NDPS act), Neemuch passed in Special NDPS Case No. 20/2004, whereby the appellants have been convicted under Section 8/15 of the Narcotics Drugs and Psychotropic substances Act, 1985 (for short "the Act"), sentenced to undergo RI for ten years and fine amount of Rs. 1,00,000/- to each appellant, in default of payment of fine they shall suffer additional RI for one year. ( 2. ) THE prosecution case in brief, as unfolded before the Trial Court, is that on 5. 3. 2004 Assistant Sub Inspector (Shri P. S. Kushram) of P. S. Singoli received information from informer that from the side of village Turkia Singoli a truck bearing no. RJ-13g-5925 would carry poppy husk illegally. This information was recorded in daily diary and in presence of panch witnesses (Mangilal and Devilal)a memorandum, showing reason for not obtaining search warrant, was prepared, same was also entered in daily diary. Shri Kushram for further action, along with police force and panch witnesses, in a jeep reached at triangular of Kadwasa. They were waiting for coming of truck and after some time the said truck came to Kadwasa triangular. Truck was stopped and 10 to 12 persons jumped out and ran away, out of them 3 were caught by the police force, rest escaped successfully. All the three disclosed their names as Nirmal, Ganesh and Karulal. They also disclosed that they were bringing poppy husk along with Balu, Shantilal, Mannalal, prithviraj, and Anil, from godown situated in Turkia Singoli and the name of the driver was Ramlal, who is resident of Jodhpur. Appellants were not having valid licence or permit for transportation of poppy husk. Appellants along with loaded truck were brought to the Police Station, where bags were weighed and total weight was 23 quintal. Out of 73 bags, from each bag two samples, each of 250 gram, were taken and sealed. Seal of Police Station was used and on the packet of samples signed slips of the witnesses and police officers were pasted. Seizure memo of poppy husk was prepared. Appellants were arrested and apprised with reason for their arrest. In the Police Station Crime No. 24/04 was registered, vide f. I. R. Ex. P/34. Seal of Police Station was used and on the packet of samples signed slips of the witnesses and police officers were pasted. Seizure memo of poppy husk was prepared. Appellants were arrested and apprised with reason for their arrest. In the Police Station Crime No. 24/04 was registered, vide f. I. R. Ex. P/34. A detailed report as per provision under Section 57 of "the Act" was sent to the superior police officials. 73 packets were sent to Forensic Science laboratory with draft letter Ex. P/6 and facsimile seal sent through Constable Manohar. After handing over the sample to the in-charge of Laboratory, its receipt was received i. e. Ex. P/7. During the course of investigation for disposal of the property, steps were taken as per provision under Section 52-A of "the Act". The copy of the order-sheet to this effect recorded by Executive Magistrate 1st Class, is Ex. P/40. Forensic Science laboratory report Ex. P/37 was received. On completion of investigation, appellants were charge sheeted for commission of offence under Section 8/15 of "the Act". ( 3. ) APPELLANTS refuted the charges. They have net examined any witness in defence whereas prosecution has examined, in total, 12 witnesses and adduced several documents to establish its case. Learned Trial Court, after hearing both the parties, found the prosecution case proved and convicted the appellants as shown herein-above. ( 4. ) HAVING heard learned counsel for the parties and after perusing the entire record, it emerged that the prosecution has failed to produce the seized property during the course of recording of statement of prosecution witnesses to establish its identity, quantity and authenticity as well as truthfulness of seizure, sealing and pasting of slips containing signatures of panch witnesses as well as police officials and accused persons. Supreme Court, in case of Jitendra and another V/s State of M. P. 2004 Supreme Court Cases (Criminal) 2028, has held that non production of seized contraband article in Court, is fatal to the prosecution and same causes prejudice to the defence. It is also held by the Supreme Court that when best evidence was available, the same should have been produced before the Court for the purposes of marking articles. ( 5. It is also held by the Supreme Court that when best evidence was available, the same should have been produced before the Court for the purposes of marking articles. ( 5. ) THE learned Trial Court has not taken into consideration the provision of Section 52-A of "the Act" in its proper spirit and prospective, which reads as under :- 52-A. Disposal of seized narcotic drugs and psychotropic substances.- (l) 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 substance 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 drugs 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 sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substance containing such details relating to their description, quality, quantity, mode of packing, marks, members 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 identity 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 sub-section (2),the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (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 subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence. ( 6. ) THE aforesaid provision of disposal of seized narcotic drugs and psychotropic substances is meant for disposal of the property during the pendency of the trial and meaning of disposal means final disposal, and the property would not remain in Police custody or in the custody of the Court or in custody of Excise Department Or Central narcotics Bureau, Neemuch (M. P. ). Sub-section 1 of Section 52-A of "the Act" is assigning reason for disposal of the property and for which notification would be published by the Central Government for the official gazette specifying such narcotic drugs or psychotropic substances or clause of narcotic drugs or clause of psychotropic substances. Notification shall also specify the Officer and the manner of disposal from time to time. Before disposal of the seized property, the concerned agency will follow the procedure prescribed in Sub-section 2, 3 and 4 of Section 52-A of "the Act", after producing the substance before any magistrate. Any magistrate means any executive or judicial magistrate, as defined in Criminal Procedure Code under section 6 and 20. The inventory of the property would be prepared and learned magistrate shall certify the correctness of inventory or in his presence photographs of such drugs or substances will be taken and certified by the learned magistrate or representative samples of such drugs or substances in presence of magistrate will be taken and magistrate will certify the correctness of list of samples. Sub-section 3 of section 52-A of "the Act" is issuing mandate for allowing the application filed by the police or prosecution under Sub-section 2 of Section 52-A of "the Act" as early as possible and Sub-section 4 of Section 52-A of "the Act" is giving status to inventory, photographs, list of samples as a primary evidence in respect of such offence, in which the narcotic drugs or psychotropic substances were seized, during the course of trial for proving the prosecution case. ( 7. ) IN the instant case, the property was produced before learned Executive Magistrate i. e. Additional Tehsildar and Executive Magistrate, Tappa Singoli (in Case No. 3/inspection/ 04) on 23. 6. 2004. Prior to that, on 14. 6. 2004 application under Section 52-A of "the Act" was filed by the Station House officer of P. S. Singoli. The application was allowed. Contents of Order-sheet dated 23. 6. 2004 ex. P/40 proved by PW-7 G. S. Baghel, Investigating Officer, shows that Executive magistrate himself visited the Police Station and found 73 bags poppy husk loaded in a truck bearing No. RJ-13g-5925. Photographs of all the bags were taken. He found the bags sealed properly. All the bags were opened and poppy husk found therein, were poured on the ground, one heap was made after mixing the entire poppy husk of 72 bags and 2 samples, each of 250 gram, were taken from the heap of the poppy husk. Samples were sealed, signed and chits were affixed on the packets duly signed by Executive Magistrate; they were marked as Article X-1 and X-2. The photograph of opened heap of poppy husk was also taken, thereafter same were filled in 73 bags and weighed. After weighment, all the bags were sealed and loaded in a truck. The learned Executive Magistrate directed the Station House Officer, Singoli, to produce the entire Dodachura and article before the Court. After performance of above mentioned procedure as per provision under Section 52-A of "the Act", there was no need to produce the entire property i. e. 73 bags of poppy husk, before the Trial Court and there is no material on record to indicate that the property was produced before the Trial court at any point of time. The first page of Final Report, in column no. The first page of Final Report, in column no. 11, as per provision under Section 173 of the Criminal Procedure Code, is showing the description of seized property i. e. 73 bags of poppy husk, in total, 23 quintal, 14 packets of sample of poppy husk each containing 250 gram poppy husk, one truck bearing No. RJ-13g-5925 valuing Rs. 2,50,000/ -. In this Final Report it is nowhere mentioned that property was produced before the Court at the time of filing of the charge sheet. It is also not mentioned, where property was kept? The charge sheet was filed on 31. 8. 2004 and proceeding of disposal of property as per Ex. P/40 was held on 23. 6. 2004. Order sheet dated 31. 8. 2004 is showing that learned Special Magistrate, while taking the charge sheet, also directed for depositing of case property but it is nowhere mentioned, where property was to be deposited? in Final Report column no. 11-A at serial no. 20, the filing of the copy of the proceeding under Section 52 of "the Act" is mentioned but merely this much is not sufficient to prove the prosecution case. If property was disposed of as per provision under Section 52-A of "the Act" then, before the Trial Court, prosecution is required to file and prove inventory, photographs, samples taken in presence of the magistrate, list of property prepared and certified by the magistrate and all these will be taken and treated as primary evidence in respect of such offence, but in the instant case the proceeding conducted by the learned Executive Magistrate dated 23. 6. 2004 is only exhibited as Ex. P/40 before the Court but photographs of the 73 bags, 2 samples taken, marked articles X-1 and X-2, photograph of heap of poppy husk after mixing the poppy husk of all the 73 bags on the ground and photographs of again filling and photographs of again filled 73 bags which were sealed, were not produced before the Trial Court at the time of examination of prosecution witnesses and all these photographs and documents as well as inventory were not exhibited as primary evidence before the Trial Court. The purpose of Section 52-A of "the Act" is to allow the disposal of the property at the earliest point of time during the course of investigation so that same may not be vulnerable to theft, substitution, constraints of proper storage, space or any other kind of distinction, after following the procedure mentioned in Sub-section 2 of Section 52-A of "the Act", by which the evidence has to be preserved to establish the prosecution case regarding quantity, kind of drugs or psychotropic substances, its identity with the seizure memo and the statement of the prosecution witnesses who will prove the photographs, seizure memo, inventory, packets of sample etc. , but neither all these documents were produced by the prosecution before the Court and proved as primary evidence nor original property, which was not disposed of, and given in possession of the Police, was produced in the Court. There was no final disposal of the property, as per provision under Section 52-A of "the Act", is also clear from the direction issued by the learned Trial Court in paragraph-44 of the impugned Judgment that investigation was going on against absconding accused Balu, Shantilal, Mannalal, Prithviraj, Anil and driver Ramlal, as per provision under Section 173 (8) of the Criminal Procedure Code. It is also directed by the learned Trial Court that after arrest arid production of these accused persons before the Court, Order will be passed regarding seized poppy husk, its sample and truck, up to that time all the seized property in the case and the record be preserved safely and on the first page of the record note to this effect shall be made in red colour. This direction in paragraph-44 is also establishing the fact that seized property "poppy husk" and samples as well as truck were not finally disposed of and lying somewhere but not produced in the Court during the course of examination of prosecution witnesses. ( 8. ) IT is clear from the above mentioned discussion and the record that neither the Police nor learned Executive Magistrate as well as the learned Trial Court understood the real implication of Section 52-A of "the Act" and failed to follow the required procedure. The Central Government, in exercise of powers conferred by Sub-section 1 of Section 52-A of "the Act", has issued notification No. 381 (E)dated 29. 5. The Central Government, in exercise of powers conferred by Sub-section 1 of Section 52-A of "the Act", has issued notification No. 381 (E)dated 29. 5. 1989 specifying the narcotic drugs and psychotropic substances for the purposes of disposal as per provision under sub-section 2 of Section 52-A of "the Act". ( 9. ) IN view of the above discussion, this appeal is allowed, conviction and sentence of the appellants are hereby set aside. Appellants are in jail right from the date of their arrest i. e. 5. 3. 2004. The learned Trial Court is directed to release them forthwith, if not wanted in any other criminal case. Office is directed to send a copy of this judgment along with the record to the trial Court for immediate compliance. Appeal allowed.