JUDGMENT : A.K. Shrivastava , J.: -- Feelingaggrieved by the judgment of conviction and order of sentence dated 28.11.2006passed by learned Special Judge (N.D.P.S., Act), Mandsaur in Special Sessions Trial No. 36/2002 convicting the appellant under Section 8/21(c) 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafterreferred to as "the Act") and thereby sentencing her to suffer tenyear’s rigorous imprisonment and fine of Rs . 1 ,00,000 /- ( Rs . One Lac), indefault, further rigorous imprisonment of two years, the appellant has preferred this appeal under Section 374 (2) of the Code ofCriminal Procedure, 1973. 2.In brief, the case of prosecution is that A.S.I. Mevalal Dubey of Police Station, Y.D. Nagar , Mandsaur received an informationon 16.5.2002 from the informant that appellant and her father Majeed Khan are sitting on the rear side of their househaving contraband article heroin with them. The said information was reduced inthe Roznamcha and the Panch witnesses namely Omprakash and Ramesh were summoned. Looking to the urgency, the search warrant could not be obtainedand Panchnama in that regard was also prepared andwas sent to Superintendent of Police, Mandsaur .Thereafter the raiding party arrived at the house of Majeed Khan situated at Sneh Nagar , Mandsaur , where they found appellant ( Abida Bee) and co-accused Majeed Khan sitting there. The members of the raiding party also noticed thatappellant was having one polythene bag in her lap and on seeing the raidingparty, after passing over the said bag containing contraband article to herfather she ran away towards the jungle. Accused Majeed Khan alse tried to flee fromthe place of occurrence along with the bag containing contraband article, butany how he was caught by the raiding party. A notice under Section 50 of theAct was given to Majeed Khan and thereafter searchwas made. 3.The investigating agency on searching the polythene bag found brown coloured powder which was tested by smelling, testing andafter burning it, the presence of smack was found in it. On weighing thecontraband article, it was found to be 1.400 kg. Out of the bulk of thecontraband article, two samples of 10 gms each were taken out and they were sealed. 3.The investigating agency on searching the polythene bag found brown coloured powder which was tested by smelling, testing andafter burning it, the presence of smack was found in it. On weighing thecontraband article, it was found to be 1.400 kg. Out of the bulk of thecontraband article, two samples of 10 gms each were taken out and they were sealed. 4.After completing the procedure at the spot, accused Majeed Khan was brought to the Police Station, where the case was registered and theseized and sealed contraband article as well as the samplesof the contraband article were deposited in the Maalkhana of the Police Station. 5.One sample of the contraband article was sent on 24.5.2002 to the chemicalanalyst, although the seizure was made on 16.5.2002. In the report of chemicalanalyst, the presence of heroin was affirmed. 6.After the investigation was over, a charge-sheet was submitted before thelearned Special Judge by showing that the appellant is absconding. 7.The contention of learned counsel for the parties is that the accused Majeed Khan was put to trial and he was convicted. Theappeal was also preferred by him, but he died during the pendency of the appeal, as a result of which that appeal was dismissed as abated. 8.Appellant- Abida Bee was arrested on 7.12.2004 andthereafter she was put to trial. 9.The learned Special Judge framed charges punishable under Section 8/21 (c) 29of the Act, which she denied, thereafter, the evidence of prosecution witnesseswere recorded. 10.The defence of appellant is of false implication andthe same defence she set forth in her statementrecorded under Section 313 of Cr.P.C . however, shedid not choose to examine any witness in support of her defence . 11.The learned Special Judge on the basis of the evidence placed on record came tohold that the charges are proved against the appellant, as a result of whichconvicted her and passed the sentence, which I have mentioned hereinabove. 12.In this manner, the appellant has filed this appeal assailing the impugnedjudgment of conviction and order of sentence. 13.The contention of Shri Nilesh J. Dave, learned counsel is that as per prosecutions own case the contrabandarticle was seized on 16.5.2002 and the same was sent to the chemical analyston 24.5.2002 and during these nine days, the samples of contraband article werelying in the Maalkhana of the Police Station and theseal of the Investigating Officer throughout remained with him, and therefore,there are reasonable chance of fabrication. Another submission of learnedcounsel is that since the contraband article was not produced before thelearned Special Judge, the appellant cannot be convicted. In support of hiscontention learned counsel has placed heavy reliance on the decisions of theSupreme Court in Jitendra and Another vs. State ofM.P, (2004) 10 SCC 562 , Noor Aga vs. State of Punjab & Anr ., 2008 IV AD (Cr.) (SC)337. Learned counsel has also placed reliance on the two decisions of the Courtin Nirmal and two Others vs.State of M.P. ( Cr.A . No. 1274/07 ( Indore Bench)decided on 8.9.2008) and also Abdul Gani vs. State of M.P. , 2005 (2) JLJ 363 . On thesepremised submissions, it has been contented by learned counsel for appellantthat by allowing this appeal the judgment of conviction and order of sentencepassed by the learned Special Judge be set aside and the appellant be acquittedfrom all the charges. 14.On the other hand, Shri Deepak Rawal ,learned Public Prosecutor appearing for the State, argued in support of theimpugned judgment and also placed heavy reliance on the decision of the SupremeCourt in State of Punjab vs. Makhan Chand , 2004 SCC ( Cri .) 830. 15.Having heard learned counsel for the parties, I am of the view that this appealdeceives to be allowed. 16.As per the case of prosecution on 16.5.2002, when the raiding party arrived atthe house of the father of the appellant; on seeing the raiding party, theappellant, who is a lady, ran away and disappeared in the jungle. The seizureof contraband article was made on 16.5.2002 and it was sent to the chemicalanalyst for obtaining the report of its contents after nine days as it was senton 24.5.2002. It is borne out from the documentary evidence as well as from theevidence of Investigating Officer and Seizing Officer A.S.I. Mevalal Dubey (P.W. 7) thatthroughout after sealing the samples they were kept in the Maalkhana of the Police Station and the personal seal of the Seizing Officer throughoutremained with him. 17.The charge-sheet was submitted against the accused persons namely Majeed Khan and appellant, however, appellant was absconding and during the period in which the appellantwas absconding, accused Majeed Khan was tried. Afterthe entire trial of the accused Majeed Khan and afterpassing the judgment of conviction against him on 23.3.2004 by learned SpecialJudge, the appellant was arrested on 7.12.2004 and again the prosecutionwitnesses were examined. Afterthe entire trial of the accused Majeed Khan and afterpassing the judgment of conviction against him on 23.3.2004 by learned SpecialJudge, the appellant was arrested on 7.12.2004 and again the prosecutionwitnesses were examined. However, on going through the record of the learned Special Court , this Court finds that independent Panch witnesses Omprakash (P.W.1) and Ramesh (P.W. 2) were never put for examinationin the trial of the appellant. Similarly, Prahlad (P.W. 3) to whom the bulk of the contraband article as well as the sealedsamples were given for keeping them in the Maalkhana was also not examined. Head Constable Ratan Singh(P.W. 4), who was one of the member of the FlyingSquad was also not examined. Constable Kamal Singh(P.W. 5), who carried the sealed samples to the laboratory of chemical analyst was also not examined. Head Constable Ramratan Dubey (P.W. 6) was alsonot examined. However, the Seizing Officer of the contraband article as well asthe Investigating Officer A.S.I. Mevalal Dubey (P.W. 7) was examined in the presence and in thetrial of present appellant on 28.4.2005, but only this much in theexamination-in-chief was recorded that the appellant is the same lady havingname Abida . Asstt . Sub Inspector Devichandra Nirwan (P.W. 8) was also not examined when the appellantwas tried. However, Station-House Officer Mukhtaar Qureshi (P.W. 9) was examined in the trial of the appellantbut in his examination-in-chief nothing was asked to this witness. LadyConstable Manorama , who according to the case ofprosecution chased the appellant when she was running away from the place ofoccurrence, has been examined as P.W. 10, and other two witnesses namely Shaqeel (P.W. 11) and Pirulal (P.W. 12) who are the hostile witnesses were also examined in the trial ofappellant. Hence, the material witnesses viz. independent Panch witnesses of the seizure of the contraband article and sealing of the samplesof the contraband article; Head Constable Prahlad (P.W. 3) who is Maalkhana Incharge of the Police Station and Constable Kamal Singh (P.W.5) who carried the contraband article to the chemical analyst were notexamined, and therefore, the appellant was debarred from cross-examination inrespect to the material fact just like sealing of the samples and in whatcondition they were lying in Maalkhana of the PoliceStation etc. 18.So far as the evidence of Seizing Officer and the Investigating Officer A.S.I. Mevalal Dubey (P.W. 7) isconcerned, after the arrest of the appellant only this much was asked to him inhis examination-in- cheif that appellant’s the samelady Abida , who is the accused and nothing more.However, in the cross-examination on behalf of the appellant in para 61, this witness has admitted that the appellant ranaway from the place of occurrence, in that regard no Panchnama was prepared nor in any of the Panchnama prepared atthe spot this fact is mentioned. This piece of evidence has been so deposed bythis witness after verifying the Panchnama placed onrecord. True, lady constable Manorama (P.W. 10) hasstated that when the raiding party arrived at the spot, on seeing the raidingparty, the appellant ran away and disappeared in the jungle and, although, thiswitness chased her, but, failed to catch her. 19.According to me, in order to hold as to whether the samples taken out from thebulk of contraband article which were sent for chemical analyst, were properlysealed or not; in what condition the samples were lying in the Maalkhana and why it was not sent without any delay to thechemical analyst, the present appellant has been debarred to cross-examine thewitnesses on these material points. According to me, it was the duty of theprosecution to examine all these witnesses. However, this is the prosecution’sown case that the contraband article was seized on 16.5.2002 and it was sentthrough Constable Kamal Singh (P.W. 5) on 19.5.2002to F.S.L., Sagar where he was told that the samplesshould be sent to Indore for examination. Again this witness came back to the Police Station on23.5.2002 and again on the same date he went to Indore . On going through thereport of the chemical analyst ( Ex.P . 32), this Courtfinds that it was received in Laboratory only on 24.5.2002. As envisaged underSection 293 Cr.P.C . this document can be used asevidence in the trial. However, nowhere in this document it has been mentionedthat these sealed samples were containing the chit duly signed by the Panch witnesses. Since, it is the prosecution’s own casethat throughout the samples were remained in Maalkhana of the Police Station till it was sent to the chemical examiner, and furtherthat the official seal of the Seizing Officer throughout remained with him, thepossibility of fabrication of the samples of contraband article cannot be ruledout. Since, it is the prosecution’s own casethat throughout the samples were remained in Maalkhana of the Police Station till it was sent to the chemical examiner, and furtherthat the official seal of the Seizing Officer throughout remained with him, thepossibility of fabrication of the samples of contraband article cannot be ruledout. In this document separate sample of the seal was also not sent in order totally it with the seal impressions which were found on the samples.Prosecution’s own documents Ex.P . 8the Panchnama of taking out the sample from the bulk;covering letter of Superintendent of Police Ex.P . 9 dated 17.5.2002, addressed to Director, F.S.L., Indore also does not indicate that after sealing the samples, the signature of the Panch witnesses were obtained. In the Roznamcha of the Police Station ( Ex.D . 6) also it has also notbeen so mentioned. Hence, according to me, firstly opportunity was not providedto the appellant to cross-examine the material witnesses on this material pointand secondly as per the prosecution’s own case the sealed samples were lying inthe Maalkhana and the official seal throughoutremained with the Investigating Officer, and therefore, according to me, thecase of prosecution becomes highly doubtful. Indeed, it was the duty ofprosecution to removal all these suspicions. 20.Apart from this, the contraband article which was lying in the Maalkhana of the Police Station was never produced in theCourt, and therefore, this is the additional material to hold that appellantcannot be convicted. In this context, I may predictably place reliance on thedecision of the Supreme Court in Jitendra and Another(supra). The Supreme Court in the aforesaid decision has categorically held in paras 5 and 6 that non-production of seized drugs under theAct is not a mere procedural irregularity, but, it causes prejudice to theaccused and the same is fatal to the prosecution. The same view has been takenby the Supreme Court in another decision in Noor Aga (supra). The Supreme Court in Mahmood vs. State of Uttar Pradesh, AIR 1976 SC 69 in para 15has observed that the investigator should take all the necessary precautionswhich could be taken to eliminate the possibility of fabrication of thisevidence, or to dispel suspicion as to its genuineness. The InvestigatingOfficer sealed the box with his own seal which thereafter remained with himthroughout and he did not take the signatures of the witnesses on the parcelcontaining the gandasa . The InvestigatingOfficer sealed the box with his own seal which thereafter remained with himthroughout and he did not take the signatures of the witnesses on the parcelcontaining the gandasa . He did not after sealing theparcel entrust his seal to the Sarpanch or any otherrespectable person of the village. 21.The decision of Makhan Chand (supra) placed reliance by the learned Public Prosecutor appearing for theState is not applicable in the present case because from that judgment it isnot clear whether the contraband article was lying in the Maalkhana of the Police Station and it was not produced before the Court. On goingthrough para 10 of the said decision only this muchis gathered that what is the procedure for the disposal of the contrabandarticle under Section 52-A of the Act, if the same is hazardous substance. 22.For the reasons stated hereinabove, I am unable to uphold the conviction ofappellant. Hence, by allowing this appeal the judgment of her conviction andorder of sentence passed by the learned Special Judge convicting her underSection 8/21 (c) 29 of the Act is hereby set aside and she is acquitted fromall the charges. The appellant is in jail, she be set at liberty forthwith, ifnot required in any other case. The amount of fine, if deposited, be refunded to her.