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2010 DIGILAW 246 (CHH)

Amol Ratre v. State of C. G.

2010-10-08

MANINDRA MOHAN SHRIVASTAVA

body2010
JUDGMENT Manindra Mohan Shrivastava, J. 1. The Appellants in the aforesaid two appeals have filed their respective appeals against the judgment of conviction and order of sentence dated 23rd march 2007 passed by Special Judge (NDPS) and Additional Sessions Judge, Bilaspur in Special Case No. 31/06 by which each of the Appellants have been found guilty and convicted for commission of offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") and have been sentenced to undergo R.I. for 10 years with a fine of Rs. 1 lac and in default of payment of fine, additional R.I. for 1 year. 2. The case of the prosecution is that the Station House Officer-Inspector S. L. Chouhan of Police Station - Kota received information on 15.9.2006 that three persons are transporting ganja kept in white ambassador car No. M.P. 18/6262 and going towards Shahdol. Upon receipt of the information, a panchnama was prepared vide Ex.P-2 and information regarding receipt of such information was sent vide Ex.P-3 to senior police officer namely S.D.O (P), Kota and also informed at forest barrier, Kota as also to senior Superintendent of Police, Bilaspur on wireless and then investigating officer proceeded to the spot along with the police team. Upon enquiry at Achanakmar barrier, it was informed that the said car has been taken towards Lamni by opening the barrier. Thereafter, the suspected persons and the vehicle were chased by the S.H.O. along with his team. On way, the said ambassador car was located and the driver of vehicle having seen police vehicle ran towards forest road of Lamni- Khongsara and met with an accident on a culvert near barrier. Three suspected persons came out with 3 bags in their hand and went towards bushes and concealed the three bags. Two bags of ganja was recovered and a Panchnama in Ex.P-12 was prepared. The three suspected persons being the accused of these criminal appeals were held- up and enquired in presence of witnesses and forest officials working at Lamni barrier. They disclosed their names as Lal Bahadur Yadav, Mukul Gupta & Amol Ratre. Notice under Section 50 of the NDPS Act was given and their consent was obtained for their personal search vide Exs. P-5, P-6 & P-7. They disclosed their names as Lal Bahadur Yadav, Mukul Gupta & Amol Ratre. Notice under Section 50 of the NDPS Act was given and their consent was obtained for their personal search vide Exs. P-5, P-6 & P-7. Thereafter, the investigating officer S.L. Chouhan (P.W.5) and the accompanying staff and witnesses offered themselves for being searched by the accused persons and search memo in Exs. P-8, P-9 & P-10 were prepared. From the possession of accused Lalbahadur Yadav, 15 kg. of ganja kept in a jute bag was found; from possession of accused Mukul Gupta 10 kg of ganja kept in a jute bag was found; from possession of accused Amol Ratre, 10 kg of ganja kept in a plastic bag was found whereupon, recovery memo in Exs. P-13, P-14 & P-15 were prepared. From each of the bags, small quantity was taken and was identified as ganja by smell and physical verification and a panchnama to this effect was prepared in Ex.P-16. In all three bags, a total quantity of 71 k.g. ganja was found upon weighment and a panchnama in Ex.P-1 was prepared. Samples were drawn from each of the bags recovered from the accused and kept in the car and 4 samples, each of 250 grams were prepared and sealed vide seizure memo of Exs. P-19, P-20 & P-21. On a notice in Ex.P-25 given to the accused persons, no licence could be produced. As the investigating officer found that prima facie commission of offence under Section 20(b)(ii)(C) of the NDPS Act is made out, accused persons were arrested vide memo of arrest Exs. P -22, P-23 & P-24. 3. The investigating officer returned to police station along with the accused persons, seized ganja & witnesses, and FIR in Cr. No. 217/2000 was registered in Ex.P-30 and an information to that effect was recorded in rojnamcha sanha No. 605 maintained in the police station. Seized ganja along with samples was handed-over to Head Constable-Moharrir of Malkhana in the police station and entry to this effect was made in rojnamcha sanha. A copy of the first information report was sent to Special Judge and a report of the entire proceedings of seizure and arrest was sent to SDO (P) Kota vide Ex.P-32. Map of the spot was also prepared vide Ex.P-26. Sealed samples were sent along with constable B.B. Tiwari (P.W.4) to State Forensic Science Laboratory for analysis. A copy of the first information report was sent to Special Judge and a report of the entire proceedings of seizure and arrest was sent to SDO (P) Kota vide Ex.P-32. Map of the spot was also prepared vide Ex.P-26. Sealed samples were sent along with constable B.B. Tiwari (P.W.4) to State Forensic Science Laboratory for analysis. In the report Ex.P-29 of the FSL, the sealed samples were found containing ganja. 4. After completing usual investigation, charge sheet was submitted. The learned Special Court on the basis of material and police report, framed charges against the Appellant alleging commission of offence under Section 20(b)(ii)(C) of the N.D.P.S. Act. The Appellants abjured their guilt and pleaded innocence. 5. In order to prove the guilt of the Appellants, the prosecution examined Manish Agrawal (P.W.I), Harishankar Pandey (P.W.2), Guard -Manoj Rajak (P.W.3), Constable- B.B. Tiwari (P.W.4), Inspector & Investigating Officer S.L. Chouhan (P.W.5), Santosh Kumar (P.W.6), Head Constable. In the trial, the Appellants did not lead and defence witnesses. The learned trial Court held the Appellants guilty of commission of offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced them, as mentioned in paragraph 1 of this judgment. 6. Learned Counsel appearing for Appellant- Amol Ratre argued that the story of the prosecution as narrated by the investigating officer (P.W.5) in his testimony and the manner in which the contraband is alleged to have been recovered is highly improbable and apparently a case of false implication. He further argues that huge quantity of ganja which is alleged to have been seized from the Appellants was neither marked as article nor produced before the Court, nor is there any explanation for such non-production. He also argues that the independent panch witnesses have not supported the case of the prosecution and they have turned hostile, therefore, the conviction cannot be sustained in law. Learned Counsel for the Appellant further submitted that there are several discrepancies in the entire case of the prosecution which created grave doubt with regard to seizure of ganja from the Appellants. It is submitted that the number of car was not disclosed by Manoj Rajak (P.W.3). Learned Counsel for the Appellant further submitted that there are several discrepancies in the entire case of the prosecution which created grave doubt with regard to seizure of ganja from the Appellants. It is submitted that the number of car was not disclosed by Manoj Rajak (P.W.3). Constable B.B. Tiwari (P.W.4) has stated that the ganja was kept in possession for a long period of four days before it was submitted for examination in the FSL and, therefore, there is every possibility of tampering with the samples and, therefore, the prosecution has failed to prove that samples were kept in safe custody till it reached FSL. It is also argued that the prosecution has failed to prove that the vehicle was owned by Appellant Amol Ratre. 7. Learned Counsel appearing for Appellant Mukul Gupta, argues that as the prosecution has failed to prove seizure of contraband from Appellant Mukul, judgment of conviction and order of sentence imposed upon the Appellant is liable to be set aside, as the seizure witnesses have not supported the case of the prosecution and turned hostile. It is contended that the Appellant has been falsely implicated as the prosecution has not only failed to prove the seizure of contraband from the Appellant but has also failed to prove that any seizure of contraband was made at the spot indicated in the seizure memorandum. It is submitted that the fact that no dehati nalishi was prepared, at the spot, the entire proceedings are concocted and various documents of giving notice under Section 50, obtaining consent and all other documents of various proceedings have been prepared only in the police station and on that basis, the Appellants have been falsely implicated. It is further argued that the testimony of Investigating Officer (P.W.5) suffers from serious contradiction and is uncorroborated. Further submission is that from the evidence of Head Constable Santosh Kumar (P.W.6) Moharrir Malkhana, it is established that the samples were never taken-out of the Malkhana nor sent to FSL for chemical examination and therefore the link evidence is completely missing and it cannot be said that the samples sent to FSL in respect of which report Ex.P-29 was received related to those samples which was drawn from the ganja alleged to be seized from the Appellant. Learned Counsel for the Appellants further argued that there is no evidence to prove that samples were taken in the presence of any Magistrate and therefore there is violation of mandatory provision contained in Section 50 of the NDPS Act. It is was then contended that full and proper report as mandatorily required under Section 57 of the act was not sent to the higher-police official. 8. Learned Counsel for the Appellants, in support of their submissions rely upon the judgments in the cases of Laxmiprasad v. State of M.P./C.G. 2010(1) Crimes 752, Munna Nai v. The State 1997 Cri.L.J. 4553, Gurbax Singh v. State of Haryana AIR 2001 SC 1002, Jitendra and Anr. v. State of M.P. (2004) 10 SCC 562, Krishan Mohar Singh Dugal v. State of Goa (1999) 8 SCC 552. 9. On the other hand, learned Counsel for the State supported the impugned judgment of conviction and order of sentence and argued that even though the two panch witnesses Manish Agrawal (P.W.1) & Harishankar Pandey (P.W.2) have not supported the case of the prosecution and they have not proved seizure from the Appellant, the trustworthy, reliable and unimpeachable evidence of investigating officer S.L. Chouhan (P.W.5) proves that the seizure made by the seizing authority was genuine and cannot be doubted. It is also submitted that from the evidence of investigating officer S.L. Chouhan (P.W.5), it is proved that the Appellants were found in possession of huge quantity of ganja which was seized from their possession at the spot. It is also submitted that as the seizure was made from a vehicle and also from the Appellants who were intercepted on a public road, provision of Section 42(2) are not attracted. Learned State counsel further argued that from the evidence of Investigating Officer S.L. Chouhan (P.W.5) it is proved beyond all doubt that at the spot where the accused persons were caught red-handed with huge quantity of ganja, mandatory provision relating to search contained in Section 50 were duly complied with. Learned State counsel further argued that from the evidence of Investigating Officer S.L. Chouhan (P.W.5) it is proved beyond all doubt that at the spot where the accused persons were caught red-handed with huge quantity of ganja, mandatory provision relating to search contained in Section 50 were duly complied with. It is further submitted that the Investigating Officer has proved that the samples which were drawn from the bags containing ganja, which were seized from the Appellants, were safely taken to the police station and deposited in Malkhana as proved by the Investigating Officer in his evidence which is corroborated from the evidence of Head Constable Santosh Kumar (P.W.6), In charge Moharrir Malkhana, who has stated that seized ganja in sealed packets were handed over for safe custody in Malkahana and has proved the acknowledgment Ex.P-13 and the entries made in Malkhana register Ex.P-34. Further submission of learned State counsel is that from the evidence of the investigating officer S.L. Chouhan (P.W.5) and Constable B.B. Tiwari (P.W.4), it is proved that the sealed samples were handed-over to P.W.4 for being taken in safe custody, who deposited the same in the FSL and acknowledgment in Ex.P-28 was issued by the FSL. He further submits that from the evidence led by the prosecution, compliance of Sections 50, 52 as well as Section 55 & 57 of the NDPS Act has been proved. He further submits that even though in the present case, provision of Section 42(2) are not attracted, yet the prosecution has proved that as soon as information regarding transportation of ganja from informant was received in the police station, the superior officer namely SDO (P) was immediately informed before proceeding towards scene of occurrence. Learned Counsel for the State, in support of his submission, placed reliance on the judgments of Supreme Court in the cases of P.P. Fathima v. State of Kerala (2003) 8 SCC 726, State, NCT of Delhi v. Malvinder Singh AIR 2007 SCW 4301, Gurbax Singh v. State of Haryana AIR 2001 SC 1002 & Aslambhai Ibrahimbhai Memon and Anr. v. The State of Gujarat 1990 Cri.L.J. 1787. 10. I have considered the rival submissions made by learned Counsel for the parties and perused the records. 11. In order to prove its case, the prosecution has examined Inspector S.L. Chouahan, the investigating officer as P.W.5. v. The State of Gujarat 1990 Cri.L.J. 1787. 10. I have considered the rival submissions made by learned Counsel for the parties and perused the records. 11. In order to prove its case, the prosecution has examined Inspector S.L. Chouahan, the investigating officer as P.W.5. He has deposed in his testimony that on 15.9.2006, an information at 14:22 hrs. was received that three persons are illegally transporting ganja which is kept for sale in a white ambassador car and information so received was recorded xnpanchama Ex.P-2. Thereafter, information as required under Section 42(2) of the NDPS Act was sent to SDO (P). Kota vide Ex.P-3 and then he proceeded to place of occurrence along with his staff and witnesses. He has further deposed that information so received was forwarded at various barrier of Kota that a white ambassador car is approaching towards Lamni and the same be stopped. An information to Special Superintendent of Police, Bilaspur was also sent regarding transportation of ganja in white ambassador car. When the investigating officer (P.W.5) along with his staff and witnesses reached Kota barrier, it was informed at the barrier that the white ambassador car has escaped from the barrier and has been taken towards Lamni barrier. When the investigating officer along with his team proceeded on the road, said car was found coming from opposite direction and the vehicle was then diverted to Khongsara forest road and as the same was being driven with a high speed to escape, it lost control and dashed against a culvert. It is further deposed that at the spot, the accused persons came out of the car with bags in their hand and rushed towards bushes to conceal bags, they were chased and caught at the spot. From the car, two bags were recovered and from each of the accused persons, one bag was recovered. He also deposed that when the accused persons were intercepted, a notice under Section 50 of the NDPS Act in Ex.P-4 was given to the three accused persons informing that the police has received information regarding they being possessed of ganja and are therefore required to be searched and they may get them searched by a Magistrate or gazetted officer. It has been further deposed that the accused Lalbahadur, Mukul & Amol Ratre gave their consent for being searched by the Investigating Officer (P.W.5) vide Exs. It has been further deposed that the accused Lalbahadur, Mukul & Amol Ratre gave their consent for being searched by the Investigating Officer (P.W.5) vide Exs. P-5, P-6 & P-7 respectively, thereafter, P.W.5 gave his own search vide Ex.P-8. He also deposed that accompanying staff as well as the witnesses also gave their search vide Ex.P-9 and P-10 respectively. The accused persons were bodily searched, but nothing was recovered from their possession and the panchnama to that effect was prepared vide Ex.P-11, He further deposes that from the car, two bags suspected to contain ganja were recovered vide Ex.P-12. The investigating officer has then deposed that recovery of three plastic bags was made from each of the accused persons. From Amol Ratre, a plastic bag containing 10-12 kg. ganja; from Lalbahadur, a jute bag containing 15-16 kg ganja and from Mukul, a jute bag containing approximately 10 kg of ganja was recovered and recovery panchnama in Ex.P-13, 14 & 15 respectively was prepared. 12. The investigating officer has further deposed in his cross-examination that from each of the bags, small quantity was taken out and by burning and smelling and physical identification, it was identified as ganja and a panchnama to that effect was prepared in Ex.P-16. Thereafter, physical verification of weigh balance was recorded mpanchnama Ex.P-17. The quantity of contraband kept in various bags were weighed and in all 71 kg. of ganja was found and panchnama of weighment was prepared vide Ex.P-1. The samples were then drawn, each being of 250 grams and were sealed. Memorandum of seizure of samples of 250 grams ganja from each of the bags, recovered from the vehicle, Lal bahadur. Mukul & Amol was then prepared vide Exs.P-18, 19, 20 & 21 respectively. Notice under Section 91 of the NDPS Act was given to the accused persons to disclose any authority or licence for possessing such huge quantity of ganja and the accused vide Ex.P-25 stated that they are not possessed of any authority or licence. The three accused persons were arrested vide memorandum of arrest Ex.P-22, 23 & 24. 13. In his examination in chief, the investigating officer has also deposed that after completing the proceedings of search, recovery, seizure, weighment drawing and sealing of samples, he returned from scene of occurrence to the police station and registered FIR under Crime No. 217/06 vide Ex. The three accused persons were arrested vide memorandum of arrest Ex.P-22, 23 & 24. 13. In his examination in chief, the investigating officer has also deposed that after completing the proceedings of search, recovery, seizure, weighment drawing and sealing of samples, he returned from scene of occurrence to the police station and registered FIR under Crime No. 217/06 vide Ex. P-30 and then the entire seized quantity of ganja along with samples was given in the custody of Head Constable/Moharrir of Malkhana for safe custody which was received by giving an acknowledgment Ex.P-33. Vide Ex.P-31, copy of first information report was forwarded to Special Judge, Bilaspur and then report of search, seizure and the proceedings were sent to SDO (P), Kota vide Ex.P-32. Map of the spot was prepared on 15.9.1996 vide Ex.P-26. 14. The investigating officer has been subjected to detailed and lengthy cross-examination and in the cross-examination he has stated that when the three accused persons were apprehended, the narcotic was not seized from their possession but they had taken out ganja from the bushes which were seized. He also deposed that the accused persons were apprehended about 1/2 k.m. away from the place where the car met with an accident. 15. Submission of learned Counsel for the Appellants has been that as in the present case, the independent panch witnesses namely Manish Agrawal (P.W.1) Harishankar Pandey (P.W.2) have not supported the seizure and that all other proceedings right from stage of search till arrest of the accused persons has not been supported by any of the witnesses of the prosecution, the entire case of the prosecution has become highly doubtful. 16. The discrepancies which have been highlighted by learned Counsel for the Appellants are that the I.O. (P.W.5) has deposed in his cross-examination that when the accused persons were apprehended and when ganja was recovered from the bushes, which was taken out by them, no memorandum was prepared. Further discrepancy pointed out is that there is serious contradiction as to whether ganja from the car was seized before search consent and seizure from the accused. It has also been highlighted that in the cross-examination it has been stated that the three persons were apprehended by witnesses and not by the police. Further discrepancy pointed out is that there is serious contradiction as to whether ganja from the car was seized before search consent and seizure from the accused. It has also been highlighted that in the cross-examination it has been stated that the three persons were apprehended by witnesses and not by the police. Serious doubt have been raised on the proceedings of seizure as the memorandum of seizure Exs.P-18, P-19, P-20 & P-21 contained the crime number of the case which, according to learned Counsel for the Appellants, raises serious doubt and in fact goes to show that each and every document was prepared in the police station, because FIR was registered after coming back to police station and there was no occasion to mention crime number at the time when the seizure was made. Another discrepancy highlighted is that no dehati nalishi was prepared at the spot. 17. It was strongly urged by learned Counsel for the Appellant that the investigating officer (P.W.5) had deposed that the ganja was recovered at the instance of the accused persons without preparing any memorandum of recovery, which makes the recovery itself doubtful. The decision in the case of Krishna Mohar (1999) 8 SCC 552 (supra) has been relied upon. That was a case where the Court found that the police was already informed about the place where the contraband was kept. In that background, it was held that it is difficult to hold that the contraband was concealed and found out only on the basis of disclosure statement made by the accused persons therein. The investigating officer in his testimony has made self contradictory statements. In his examination-in-chief, he stated that three unknown persons concealed the bags in their hand, in the bushes and then proceeded towards Lamani barrier and they were chased and caught in the presence of forest guard and witnesses. This clearly shows that if this statement is to be believed it would mean that the investigating officer had seen the accused persons concealing the bags in the bushes. However, in the later part of his examination, he states that the bags were recovered from the accused and baramdagi panchnama in Ex.P-13, P-14 & P-15 was prepared in respect of Amol Ratre, Lal Bahadur & Mukul. It has not been stated as to how and in what manner the bags which were concealed in the bushes were recovered. However, in the later part of his examination, he states that the bags were recovered from the accused and baramdagi panchnama in Ex.P-13, P-14 & P-15 was prepared in respect of Amol Ratre, Lal Bahadur & Mukul. It has not been stated as to how and in what manner the bags which were concealed in the bushes were recovered. If the version of investigating officer is to be believed, the place of concealment was known because he had seen the accused persons concealing those bags in the bushes. But in paragraph 19 of his cross-examination, he has stated that when the three accused persons were caught, no ganja was recovered. In the next breath, he states of his own that upon enquiry, the accused persons had produced the same after taking out those bags from bushes. The baramdagi panchnama Ex.P-13, 14 & 15 do not record that bags alleged to contain ganja were recovered after accused taking them out from bushes. The testimony of the Investigating Officer in this regard therefore is not at all trustworthy and does not inspire confidence as to the manner in which the recovery was made. If the police had already seen the accused persons concealing bags in the bushes and when they were trying to run out they were chased and apprehended in front of witnesses and forest guard, absence of recovery on the basis of any memorandum of recovery from the accused persons raises serious doubt. 18. It has also been urged that the statement of Investigating Officer with regard to order in which seizure of ganja was made from the car and the search of seizure carried out in respect of the accused persons, renders the very seizure doubtful. It has also been urged that if the evidence of the Investigating Officer (P.W.5) is closely scrutinized, it would be reveal that the Investigating Officer has made contradictory statement in this regard. In his examination-in-chief, he deposes that the car was searched after notice under Section 50 of the NDPS Act was given, consent was taken, I.O. (P.W.5), police staff and witnesses were searched. In para -23 of his cross-examination, he however states that the ganja was recovered from the car even before the consent of the accused and search of the accused & police force. In para -23 of his cross-examination, he however states that the ganja was recovered from the car even before the consent of the accused and search of the accused & police force. He then reiterates that what he has stated in his examination-in-chief regarding search and recovery of ganja from accused before recovery from car, is correct. This contradiction cast shadow on the trustworthiness of the statement of the investigating officer (PW.5). 19. It has been next contended that the prosecution has failed to prove beyond reasonable doubt the samples which were drawn were ever sent for chemical analysis to F.S.L. Learned Counsel for the Appellants drew attention of this Court to testimony of Head Constable Santosh Kumar (P.W.6) to advance submission that it has been stated by him that the sample was never taken out. A perusal of his statement would show that the seized ganja was never taken out from Malkhana. Head Constable Santosh Kumar (P.W.6) was the Malkhanna Mohharir and his statement that after the seized ganja was deposited, it was never taken out, raises serious doubt as to whether the samples alleged to be drawn from the seizure in the present case, were ever sent to FSL. 20. It has been very strongly urged by learned Counsel for the Appellants that the Appellants cannot be convicted as the entire case of the prosecution is full of several discrepancies and as the case relates to alleged seizure of 71 kg of ganja, the prosecution was duty bound to get the seized ganja marked as article and also produce before the Court, as the physical evidence is the best piece of evidence to establish seizure of such huge quantity. It is submitted that as stringent punishment is provided under the law for possessing huge quantity of contraband, the failure on the part of prosecution to mark as article and produce during the trial the seized contraband, renders the conviction unsustainable in law. Learned Counsel for the Appellants have placed reliance in the case of Jitendra (2004) 10 SCC 562 (supra). It cannot be doubted that it is the burden of the prosecution to bring home the charges and also to prove that alleged quantity of contraband was in fact seized from the accused. However, whether in a given case non-production of physical evidence during trial would vitiate conviction, would depend on several other factors. It cannot be doubted that it is the burden of the prosecution to bring home the charges and also to prove that alleged quantity of contraband was in fact seized from the accused. However, whether in a given case non-production of physical evidence during trial would vitiate conviction, would depend on several other factors. In the case of Jitendra (2004) 10 SCC 562 (supra), the Court found that mere oral evidence as to the feature of production of panchnama does not discharge the heavy burden which lies on the prosecution. In that case the Court had taken note of a suggestion in the cross-examination that it was a case of false implication as the landlady of the house in collusion with the police wanted to somehow prepare a false case for eviction of the accused from the house. That was also a case where the panch witnesses had turned hostile. In the totality of the aforesaid circumstances, the Court did not accept that the prosecution has proved its case or that the conviction could be sustained. 21. With the material discrepancies and contradictions which have been examined by this Court in the paragraphs hereinabove, non-production of the physical evidence of quantity of ganja before the Court during trial that too without any explanation of the prosecution, that too in a case where panch witnesses have not supported the case of the prosecution, raises serious doubt with regard to genuinenity of the case of the prosecution regarding quantity of ganja alleged to be seized. It cannot be forgotten that it is the said huge quantity of ganja which has fastened the criminal liability on the accused persons to suffer a rigorous punishment of 10 years under the scheme of stringent punishment for keeping large quantity as provided under the NDPS Act. In the case of Noor Aga v. State of Punjab and Anr. AIR 2008 SCW 5964, noticing several discrepancies in the case of prosecution, including non-production of quantity of contraband before the Court, Supreme Court observed as under: 730. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect to the prosecution's endeavour to prove the fact of possession of contraband by the Appellant. 133. The High Court, however, opined that the physical evidence was in safe custody. Such an inference was drawn on the basis that the seals were intact but what was not noticed by the High Court is that there are gaping flaws in the treatment, disposal and production of the physical evidence and the conclusion that the same was in safe custody required thorough evidence on the part of the prosecution which suggests that the sanctity of the physical evidence was not faulted. It was not done in the present case.... 22. At this stage, it would be relevant to notice another submission of learned Counsel for the Appellants that there has been violation of provision contained in Section 52(A) of the NDPS Act, inasmuch as samples were not drawn in the presence of the Magistrate making the case of the prosecution doubtful relying upon the judgment in the case of Munna Nai2 (supra). 23. Though it is not the opinion of this Court that in all circumstances, non-production of physical evidence must necessarily lead to acquittal, surrounded by several other discrepancies in the case of the prosecution, particularly where the independent panch witnesses have turned hostile, non-production of physical evidence definitely makes the case of the prosecution doubtful. 24. There is yet another glaring aspects of the case. The investigating officer (P.W.5) has deposed that the ganja was seized in the forest and proceedings of search and seizure were drawn and then he returned back to police station and lodged FIR under Crime No. 217/06. However, if the memorandum of seizure prepared by the investigating officer in Exs.P-18, P-19, P-20 and P-21 is looked into, the same recorded the crime number as 217/06. The time recorded in these documents ranges from 19:40 hrs. to 20:10 hrs. However, if the memorandum of seizure prepared by the investigating officer in Exs.P-18, P-19, P-20 and P-21 is looked into, the same recorded the crime number as 217/06. The time recorded in these documents ranges from 19:40 hrs. to 20:10 hrs. The investigating officer in para -10 of his testimony has stated that after completing all the proceedings of search and seizure and also effecting arrest, he returned to police station and lodged FIR under Crime No. 217/06. The time of arrival in police station has not been stated nor the concerned rojnamcha sanha has been produced to prove the time at which the investigating officer returned back to the police station. In paragraph 27 of his cross-examination, he has stated that crime numbers were written in Ex.P-18, P-19, P-20 & P-21. A suggestion was given that a false case has been prepared in the police station and that ganja was not seized under memorandum of seizure. Further suggestion has also been given that in documents Ex.P-2 to 21 signatures of witnesses have been obtained in police station. There is no explanation of the Investigating Officer as to how the crime number came to be recorded in the seizure memoranda which were prepared at the spot of seizure i.e. in the forest area as shown in Exs.P-18, P-19, P-20, P-21. Even though a specific suggestion was given to the investigating officer that a false memorandum of seizure has been prepared, no explanation was offered as to under what circumstances the crime number was already written when in the police station FIR has been lodged at 23:30 hrs vide Ex.P-30. 25. In the present case there appears to be violation of the statutory mandate of Section 55 of the NDPS Act, inasmuch as there is serious doubt with regard to safe custody of the allegedly seized ganja and samples. The investigating officer in para-29 of his deposition has stated that the sample of the seal was not taken on any documents nor the sample of the seal has been produced nor sample of the seal has been produced in the Court. He has also admitted in paragraph 30 of his cross examination that no verification of the samples of seal was made. In fact the investigating officer has not even deposed that he affixed his own seal on the samples drawn as required under Section 55 of the NDPS Act. He has also admitted in paragraph 30 of his cross examination that no verification of the samples of seal was made. In fact the investigating officer has not even deposed that he affixed his own seal on the samples drawn as required under Section 55 of the NDPS Act. Evidence of Constable- Santosh Kumar Pradhan (P.W.6) also does not show that the sample of the seal was also deposited. All that has been stated that sealed ganja was deposited in malkhana by the investigating officer. The acknowledgment, Ex.P-33 also does not show that the samples of the seal were also deposited. Ex.P-27 by which the sample is alleged to be sent to FSL also does not state that along with the sealed samples, samples of the seal was also sent for comparison. There is yet another aspect which created serious doubt with regard to safe custody of samples before it reached to FSL. B.B. Tiwari (P.W.4) had deposed that he had obtained the samples from the police and taken to FSL, Raipur on 17.9.2006 and the same was deposited in the FSL on 19.9.2006 during which period he stayed at Raipur and kept samples with him without depositing the same in any police station. However, if the entries recorded in the Malkhana register Exs.P-34 is looked into, there is a noting that the samples were handed-over to B.B. Tiwari (P.W.4) on 18.9.2006. In the light of statement of P.W.6 that the ganja seized was never taken out, from Malkhana, it becomes highly doubtful as to whether the sample was kept in safe custody, particularly when the investigating officer had not affixed his own seal and the possibility of tampering with the common seal of the police station cannot be ruled out. 26. In the present case, the two independent panch witnesses namely Manish Agrawal (P.W.1) & Harishankar Pandey (P.W.2) have turned hostile and have not supported the case of the prosecution on the point of seizure. After they being declared hostile, they have been subjected to cross-examination by the prosecution. Both of them have admitted their signatures in various documents including the baramdgi panchnama and memorandum of seizure. The question, therefore, which arises for consideration before this Court is whether the Appellants are entitled to benefit of doubt on this basis that the independent witnesses have turned hostile. Both of them have admitted their signatures in various documents including the baramdgi panchnama and memorandum of seizure. The question, therefore, which arises for consideration before this Court is whether the Appellants are entitled to benefit of doubt on this basis that the independent witnesses have turned hostile. This Court in the case of Vinod Namdeo v. State of M.P. decided on 1st October, 2010 considered the aspects as to whether accused can be given benefit of doubt and acquitted in case where panch witnesses have turned hostile. This Court held as under: 13. In the case of Bhola Ram Kushwaha AIR 2001 SC 229 (supra), dealing with the submission that as independent witnesses have turned hostile, accused is entitled to be acquitted, it was held: 4. Learned Counsel appearing for the Appellant submitted that as both the witnesses who were stated to be independent witnesses have turned hostile, the trial court should have acquitted the accused. We are not impressed with such a general submission. In order to satisfy ourselves we have perused the statements of all the prosecution witnesses and ascertained as to whether their testimonies inspire confidence for holding the Appellant guilty of the offence for which he has been convicted and sentenced. In the case of P.P. Beeran v. State of Kerala (2001) 9 SCC 571, similar arguments were raised, which was dealt by the Supreme Court in following words: 3. The case alleged against him shows that he was found in possession of 23.5 grams of opium at the time when he was intercepted and searched by PW 2 Sub-Inspector of Police. We have noticed that two witnesses were called by PW 2 at the time of search out of whom one was examined as PW 1 and the other was not examined. But even the one examined (PW 1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr. R. Venkataramani, learned Senior Counsel for the Appellant that the evidence of PW 2 Sub-Inspector of Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Though an argument was addressed by Mr. R. Venkataramani, learned Senior Counsel for the Appellant that the evidence of PW 2 Sub-Inspector of Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Even otherwise, it cannot be said that the evidence of PW 2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P-2 which is an endorsement containing the signature of the Appellant could be treated as circumstances corroborating the testimony of PW 2. In the case of P.P. Fathima (2003) 8 SCC 726 (supra), the Supreme Court examined the entire case of the prosecution and having come to the conclusion that seizure was genuinely made by the seizing authority, held as under: 7. The learned Counsel then contended that in view of the fact that the panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of P Ws 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails. In the case of Kartik v. State of C.G. 2007 (2) CGLJ 17, such a situation where independent witnesses did not support the case of the prosecution, which otherwise was proved by the trustworthy and reliable evidence by departmental witnesses, it was held as under: 9. It is true that independent witness Chamra Ram has not been examined by the prosecution. However, Baliram P.W.4 supported the prosecution case in toto on being cross-examined by the Additional Public Prosecutor. In his examination in chief, he had supported the entire proceedings by Sub Inspector Arived Dwivedi, P.W.5 but had only stated that he could not identify the person from whose possession ganja had been seized. Tejram Sahu P.W.3 witness of weighment panchnama also admitted the signatures on weighment panchnama Ex.P-7. In his examination in chief, he had supported the entire proceedings by Sub Inspector Arived Dwivedi, P.W.5 but had only stated that he could not identify the person from whose possession ganja had been seized. Tejram Sahu P.W.3 witness of weighment panchnama also admitted the signatures on weighment panchnama Ex.P-7. The testimony of Sub Inspector Arvind Dwivedi P.W.5 is wholly unrebutted, trustworthy and inspires confidence. On the basis of the repot of Forensic Science Laboratory, Raipur Ex.P-26, it is fully established that the substance seized from the possession of the Appellant was ganja. 14. A common thread running through all these judgments is that it cannot be accepted as a general proposition that in all cases where independent witnesses have turned hostile, accused is entitled to be acquitted giving benefit of doubt. On the other hand, it has been held that if from the entire case of the prosecution and taking into consideration the evidence led by the prosecution, Court is satisfied from the material on record and from the evidence of the seizing authority that seizure was genuinely made, conviction can be sustained on the basis of seizure made by the seizing authority. It cannot be accepted as a general proposition of law divorced from the facts and circumstances of a given case, that the evidence of the departmental witnesses/seizing authority cannot be made basis for conviction in the absence of corroboration by independent seizure witnesses. If the testimony of the investigating officer is trustworthy and inspires confidence, the same can be trusted and conviction can be sustained. Even in the case of Ritesh Chakarvarti (2007) 1 SCC 744 (supra), the principles propounded in the case of Bhola Ram Kushwaha11 (supra) was reiterated, that only because witnesses have turned hostile, accused would not be entitled to a judgment of acquittal as matter of right. If otherwise, the case of the prosecution suffers from several discrepancies, non-compliance of mandatory provisions and the testimony of investigating officer and departmental witnesses does not inspire confidence and other attending circumstances of the case cast shadow of doubt, seizure may not be held proved on account of independent witnesses having turned hostile, this would be clear from the following observations of the Supreme Court in the case of Ritesh Chakarvarti v. State of M.P. (2007) 1 SCC 744 (supra): 38. In Bhola Ram Kushwaha v. State of M.P. this Court although opined that only because witnesses have turned hostile, the Appellant would be not entitled to a judgment of acquittal as a matter of right, but having regard to the statements of prosecution witnesses inter alia to the effect that the police had called the witnesses in a police station and obtained their signatures on the paper and the statements of the independent witnesses that the accused was never interrogated and searched in their presence, the judgment of conviction and sentence was set aside. 27. If the case of the prosecution is examined in the light of law as laid down by the Supreme Court in the decisions referred to above, this Court finds that present is a case where the prosecution case is not free from doubt in view of the several discrepancies and material contradictions in the statements of investigating officer (P.W.5). There being serious doubt with regard to genuinenity of the seizure alleged to be made by the investigating officer as discussed in paragraphs hereinabove, non-production of physical evidence without any proper explanation and other circumstances which have been discussed in detailed in paragraph hereinabove, this Court is unable to hold that the seizure was genuinely made by the seizing authority. The testimony of the investigating officer (P.W.5), does not inspire confidence and is not trustworthy. In the case of Ritesh Chakarvarti14 (supra), the case of the prosecution was found suffering from several discrepancies. Non-compliance of mandatory provision and finding that the testimony of the investigating officer and other departmental witnesses did not inspire confidence and other attending circumstances of the case cast shadow of doubt, seizure was held not proved on account of independent witnesses having turned hostile. In this case, it is also relevant to mention that one Lalla, who is said to be present at the time of recovery of garya, has also not been examined and the prosecution has not explained as to why he was not examined. 28. The cumulative effect of the material discrepancies and serious flaws in the case of prosecution on material aspects, as discussed above, renders the whole case of the prosecution highly doubtful and therefore the seizure cannot be held to be proved when punch witnesses have turned hostile. 28. The cumulative effect of the material discrepancies and serious flaws in the case of prosecution on material aspects, as discussed above, renders the whole case of the prosecution highly doubtful and therefore the seizure cannot be held to be proved when punch witnesses have turned hostile. The cumulative view, though not individually, of the scenario on the basis of various discrepancies clearly establishes that the case of the prosecution lacks in credibility and the fact of recovery has not been proved beyond all reasonable doubt. 29. In the result, impugned judgment of conviction and order of sentence dated 23rd March, 2007 is held unsustainable in law and is accordingly hereby set aside. The Appellants are acquitted of the charges levelled against them. Their bail bonds are discharged. 30. As the Appellants are undergoing jail sentence awarded to them under the impugned judgment of conviction and order of sentence, they shall be released forthwith if otherwise not required in any other case. 31. Appeals are accordingly allowed.