JUDGMENT (1) A.M.KAPADIA, J. Instant Appeal is listed for final hearing pursuant to the order dated 10.8.2010 passed by this Court in Criminal Misc. Application No. 8184 of 2010. The said order runs as under: 1. Leave to amend petition as well as the prayer clause is granted. (2) During the course of hearing of this application, Mr.B.M.Mangukiya, learned advocate for the applicant has pointed out various infirmities in the prosecution case like infirmities in the sealing process, non-pasting of panch slip on the outer cover of the packet containing the sample and the panchas in whose presence the contraband article opium was recovered also turned hostile. He has also pointed out that applicant is senior citizen aged about 75 years and suffers from various serious ailment of enlargement of heart, and from jail also he has been admitted at Sir T Hospital and Medical College, Bhavnagar, which has been elaborately narrated in paragraphs 3 and 4 of the application. By pointing out the aforesaid infirmities as well as special reasons, Mr.B.M.Mangukia has urged that the criminal appeal may be heard expeditiously, which would consume less time than the hearing of this application seeking suspension of sentence. He also undertakes to prepare and supply mini paper-book containing oral testimonies as well as exhibited documents produced in the trial Court in four sets after taking down the zerox copy from the R and P of the Special NDPS Case No.1 of 2002 which has been received by this Court. It is, therefore, urged that the appeal may be listed for final disposal forthwith, and till the hearing of the main appeal, hearing of the present application may be deferred. (3) In view of this, Registry is directed to list Criminal Appeal No.1271 of 2010 along with this application for final hearing on 13.08.2010. (4) Registry is also directed to permit Mr.B.M.Mangukiya, learned advocate for the applicant to take down the zerox copy of the oral testimonies as well as documents from the R and P of Special NDPS Case No.1 of 2002 for preparing mini paper-book. 2. (4) Registry is also directed to permit Mr.B.M.Mangukiya, learned advocate for the applicant to take down the zerox copy of the oral testimonies as well as documents from the R and P of Special NDPS Case No.1 of 2002 for preparing mini paper-book. 2. Challenge in this Appeal filed under Section 374 of the Code of Criminal Procedure (the Code for short) is to the correctness of the judgment and order dated 14.7.2010 rendered in Special NDPS Case No. 1 of 2002 by the learned Additional Sessions Judge, Fast Track Court No.2, Bhavnagar, by which the sole Appellant (the accused for short) has been convicted for the offences punishable under Section 17 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the NDPS Act for short) and sentenced to suffer RI for 10 years and fine of Rs.1 lac and in default of payment of fine, further RI for 1 year. 3. Briefly stated the prosecution case as disclosed from the FIR and unfolded during trial is as under: 3.1 PW-7 Ranmal Nathabhai Dayatra, PSI at Vallabhipur Police Station, Bhavnagar has received secret information to the effect that Patel Bhagvanbhai Arjanbhai Kakadia, resident of village Patana is selling Opium by keeping illegally in his house. On receiving the said information, he conveyed the same to R.L.Chaudhary, Deputy Police Officer, Botad and PW-8 Narendrasinh Bahadursinh Jadeja, C.P.I. Botad and called them in police station. PW-3 - Tidabhai Gudabhai Sodha Police Constable, PW-5 Harisinh Verubha Rana, PW-4 Anitsinh Ajubha Zala, Chamanlal Manila, Pravinsinh Arjunsinh Jadeja the Driver of the government vehicle P-26 and Police Constable Kiritsinh Chandrasinh Sarvaiya driver of Dy. Police Officer, Botad were present in the police station. The said secret information was taken into police station diary and thereafter services of two panchas were requisitioned through PW-5 - Police Constable Harisinh Verubha. Two panchas - PW-1 Vallabhbhai Khimjibhai, resident of village Vallabhipur and PW-2 Vinubhai Shamjibhai, resident of village Meghavadar were appraised about the said secret information and explained them to join in the raid. A preliminary panchnama to the said effect was prepared, signatures of two panchas were obtained beneath the same and thereafter all the members of the raiding party along with two panchas started at 3:30 P.M. in the police jeep and came to the outskirts of village Patana, via Vallabhipur Ahmedbad road, where they stopped the vehicle. A preliminary panchnama to the said effect was prepared, signatures of two panchas were obtained beneath the same and thereafter all the members of the raiding party along with two panchas started at 3:30 P.M. in the police jeep and came to the outskirts of village Patana, via Vallabhipur Ahmedbad road, where they stopped the vehicle. On arriving at the said place of information, near the house of Patel Bhagvanbhai Arjanbhai, at 4:00 PM, one person was standing near the door of the house, and on his name being asked, he has given his name as Bhagvanbhai Arjanbhai Kakadia Patel, aged about 61 years, resident of Patana. As search of his person and his house in respect of Opium was required to be done, he was asked whether he wanted the search to be done before any gazetted officer or before the Magistrate. Thereupon he has shown his willingness. Therefore, R.L.Chaudhary, Dy. Police Officer, Botad who was with them, gave his introduction as a gazetted officer and agreed for holding search. After completing the formalities envisaged under Section 42 of the NDPS Act, upon making search on person of Bhagvanbhai Patel and from the shirt and white dhoti worn by him, no intoxicating substance or anything else has been found. Therefore, keeping the said person with them and on entering the room at the east side of the residential house of the said person and on making search, one dim yellow and green coloured plastic bag was found lying near the corner of the south and the east wall. On looking into the said bag, one black coloured substance wrapped in dim plastic bag was found which was taken out from the bag and on being smelt and got the same smelt before the panchas, the intoxicating Opium was smelt. Therefore, as the panch no.1 who was taken in raid with weighing machine, the opium with dim plastic bag was weighed and its weight was 1kg. 800 gms. After placing the said opium in another plastic bag, and a slip bearing the signature of panchas, was placed therein and the said plastic bag with opium was placed in cloth bag and it was sitched with string and a seal of Police Inspector, Vallabhipur was made with wax and the slip bearing the signature of panchas were affixed thereon and it was seized consiering the value of Rs.18000/-. Moreover, the value of the bag, having few stains of opium, wherein the aforesaid opium was kept is considered Rs.00/- and the value of one steel weighing machine which is in plastic bag lying nearby and a small weighing machine and measure of weight of 50 gram is considered Rs.50/- and the same were seized as per the details of panchnama. Further, on looking into the cupboard which is in the east wall of the room, the electricity bill of the house of the said person has been found and the said document is seized. Except this, upon making search in two rooms, i.e. the aforesaid room and frontage which is situated at the west side from the room, any intoxicating substance has not been found. Therefore 1 Kg. and 800 gms of opium valued at Rs.1800/- was found from the illegal custody of the said person Patel Bhagvanbhai Arjanbhai Kakadia, resident of village Patana. He was arrested after informing him in that regard. 3.2 Complaint for the aforesaid incident was filed against the accused for the offence punishable under Section 17 of the NDPS Act at Vallabhipur Police Station, where it was registered vide I-CR No. 98 of 2001 and the investigation was put into motion. During the course of investigation, statements of witnesses were recorded, mudamal article opium which was recovered after making necessary formality of sealing, it was kept in safe custody in police station and thereafter sent to FSL for chemical analysis. On receipt of the report from the FSL, it is confirmed that the contraband article recovered from the accused was opium. Charge sheet came to be filed against the accused for commission of the offence punishable under Section 17 of the NDPS Act in the Court of learned JMFC, Vallabhipur where it was registered as Criminal Case No. 3 of 2002. 3.3 As the offence under the NDPS Act is exclusively triable by the Special Court, the learned JMFC committed the case to the Special Court (Sessions Court), Bhavnagar, which was registered as Special (NDPS) Case No. 1 of 2002. 3.4 The learned Additional Sessions Judge, Fast Track Court No.2, Bhavnagar (trial Court for short) to whom the case was made over for trial, framed charge against the accused at Exh.3 for commission of the offence punishable under Section 17 of the NDPS Act. It was read over and explained to him. 3.4 The learned Additional Sessions Judge, Fast Track Court No.2, Bhavnagar (trial Court for short) to whom the case was made over for trial, framed charge against the accused at Exh.3 for commission of the offence punishable under Section 17 of the NDPS Act. It was read over and explained to him. The accused pleaded innocence and claimed to be tried. Thereupon he was put to trial by the trial Court. 3.5 To prove the culpability of the accused, the prosecution has examined as many as 8 witnesses and relied upon their oral testimony, details of which have been narrated in paragraph 4 of the impugned judgment and order. They are as under: PW Name and Status Exh. 1 Vallabhbhai Khimjibhai, Panch 5 2 Vinubhai Shamjibhai, Panch 7 3 Tidabhai Gudabhai Sodha, Witness 8 4 Anitsinh Sajubha Zala, Witness 10 5 Harisinh Verubha Rana, Witness 11 6 Sanjivbhai Maganbhai Pandey, Witness 12 7 Ranmal Nathabhai Dayatara, Ccmplainant 13/A 8 Narendrasinh Bahudarsinh Jadeja, I.O. 22 3.6 In order to bring home the charge levelled against the accused, prosecution has also produced in all 23 documents and they were exhibited and the contents thereof were relied upon. They are mentioned in paragraph 4 of the impugned judgment and order. The relevance of those docuemnts would be mentioned in this judgment as and when required. 3.7 After recording of the evidence of the prosecution witnesses was over, the trial court explained to the accused the circumstances appeared against him in the evidence of the prosecution witnesses and recorded his further statement as required under Section 313 of the Code. In his further statement, the accused denied the case against him in toto and stated that he is innocent and has been falsely implicated. However, he did not lead any evidence nor did he produce any witness in support of his defence. 3.8 On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court held that the prosecution has successfully established the charge levelled against the accused. The accused was found at his residence, and from his residence contraband article opium was recovered from his cupboard. Prior to that, necessary procedure as envisaged under the NDPS Act has been followed. The accused was found at his residence, and from his residence contraband article opium was recovered from his cupboard. Prior to that, necessary procedure as envisaged under the NDPS Act has been followed. Therefore, complicity of the accused for commission of the offence alleged against him has been fully established, and consequently, he was convicted for commission of the offence punishable under Section 17 of the NDPS Act and sentenced to suffer RI for 10 years and fine of Rs.1 lac and in default of payment of fine further RI for 1 year, which has given rise to the instant Appeal at the instance of the accused. 4. Mr. K.T.Dave, learned Advocate for the Appellant accused has assailed the impugned judgment and order of the trial Court by contending that the prosecution has examined the member of the raiding party who have not followed the mandatory and statutory provisions contained under the NDPS Act, and therefore, on account of non-compliance of the mandatory as well as statutory provisions of the NDPS Act, the prosecution evidence cannot be relied upon and cannot be acted upon. It is also highlighted by him that the prosecution has not been able to successfully establish that the contraband article which was sent to FSL was not tampered with during the course of its journey from the stage of seizing and sealing till its reaching the FSL. It is also emphatically submitted by him that PW-1 Vallabhbhai Khimjibhai and PW-2 Vinubhai Shamjibhai, who are the panch witnesses, have not supported the prosecution case with regard to the recovery of opium, seizure and sealing of the same, and therefore, the contents of the panchnama are not proved and in that view of the matter, the prosecution has not been able to prove the culpability of the accused for commission of the offence punishable under Section 17 of the NDPS Act. On the aforesaid premises, it is contended by Mr. K.T.Dave, learned Advocate for the accused that the prosecution has not been able to establish the guilt of the accused, and therefore, the impugned judgment and order passed by the trial court deserves to be quashed and set aside by acquitting the accused of the offence with which he was charged, by giving him benefit of doubt. He, therefore, urged to allow the appeal. 5. He, therefore, urged to allow the appeal. 5. To buttress the submission that the statutory provisions contained under the NDPS Act has not been followed in this case, Mr. K.T.Dave, learned Advocate for the Appellant accused has relied upon the fullowing decisions of this Court: (i) Sohanlal Kasiram Brahmin and Another vs. State of Gujarat and Another 2007 (2) GLR 1020 (ii) Kamalprasad Ramajiprasad Gupta and Another vs. State of Gujarat - Criminal Appeal No. 1366 of 1999 with Criminal Appeal No.34 of 2000 decided on 21.9.2006. (iii) Bishnoi Mohanlal Bhakhararam vs. State of Gujarat Criminal Appeal No. 130 of 2004 Decided on 25.9.2008. (iv) Fatesing Gajesing Chauhan vs. State of Gujarat Criminal Appeal No. 254 of 2003 Decided on 25.9.2008. (v) Shakilabibi, Wife of Shaikh Allarakkha Shaikh Kasam vs. State of Gujarat Criminal Appeal No. 617 of 2007 Decided on 25.9.2008. (v) Jitendra @ Sanjaykumar Suryakant Desai vs. State of Gujarat Criminal Appeal No. 323 of 1996 Decided on 17.8.2001 (vi) Ganpatram Punmaram Vishnoi vs. State of Gujarat Criminal Appeal No. 287 of 1999 Decided on 7.5.2002. (vii) Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas vs. State of Gujarat 2006 (4) GLR 3022. Per contra, Mr. L.B.Dabhi, learned APP for the respondent State of Gujarat, has submitted that by voluminous evidence produced by the prosecution, complicity of the accused is proved beyond reasonable doubt. The accused was caught with contraband article opium weighing 1 kg. and 800 grams which was found from the cupboard of his own house in the presence of members of the raiding party as well as panchas. The contraband article opium was seized, samples were drawn and sealed as per the sealing procedure. The said muddamal was sent to FSL for chemical analysis and the report of the FSL certified that the muddamal article sent for analysis was opium. It is also highlighted by him that the prosecution has successfully proved that from the stage of seizure and sealing till the samples reached for analysis at FSL, the samples were in the safe custody of the police personnel and in this case the prosecution has examined police officers in whose safe custody the samples were kept from the stage of seizure, sealing and till they were delivered at FSL for chemical analysis. It is also pointed out by him that though PW-1 Vallabhbhai Khimjibhai and PW-2 Vinubhai Shamjibhai Panch Witness have not supported the prosecution case with regard to the recovery of contraband article from the accused, however, the contents of the panchnama are proved from the evidence of the member of the raiding party. On the aforesaid premises, it is contended by him that the prosecution has established the case against the accused beyond reasonable doubt, and therefore, the trial court was justified in recording the order of conviction and sentence against the accused. He, therefore, contended that the appeal does not warrant interference of this court and it deserves to be dismissed as the same lacks merit. He therefore urged to dismiss the appeal. (5) This Court has considered the submissions advanced by the learned advocates appearing for the parties and perused the impugned judgment and order as also the record and proceeding of Special NDPS Case No.1 of 2002. This Court has undertaken a compete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and re-read by the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of the caution sounded by the Supreme Court while dealing with NDPS cases, this court has examined the entire evidence on record for itself independently of the trial Court and considered the arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether the trial Court has rightly recorded the order of conviction and sentence. (6) At the outset, be it noted that to combat illicit drug traffic and drug abuse, both at the national and international levels, the penal provisions contained under the NDPS Act are stringent and punishment thereunder is harsh, therefore, as per the settled principles of criminal jurisprudence, the Court of law must insist on the strict compliance of the safeguards provided under the statutory provisions contained thereunder. In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 SC 7 . In this connection, it would be appropriate to refer to the observations made by the Supreme Court in the case of Bharatbhai Bhagwanjibhai v. State of Gujarat, AIR 2003 SC 7 . In para 1 of the said judgment, the Supreme Court has observed as under: The Statement of Objects and Reasons of the NDPS Act categorically records the inadequacy of the existing legislation to combat illicit drug traffic and drug abuse, both at the national and international levels and it is by reason of such deficiencies in the existing laws, the legislature thought it prudent to consolidate the same and bring about a comprehensive legislation so as to meet the exigencies of the situation. A plain look at the provisions of the NDPS Act read with the Statement of Objects and the Preamble would depict the intent of legislature as regards the offences under the said consolidated legislation, which stands expressed in rather explicit language as one of the most heinous ones in nature. This Court, however, in consonance with criminal jurisprudence of the country has been insisting on strict compliance of the safeguards provided under the statute so as to be in tune therewith. (7) In view of the stringent penal provisions and harsh punishment provided thereunder and in view of the observations made by the Supreme Court in the above referred to judgment, we have to find out as to whether in instant case strict compliance of the safeguards provided under the statute have been observed by the Police personnel during the course of the raid and seizure of the muddamal, contraband article, opium. (8) At the outset be it stated that PW-1 Vallabhbhai Khimjibhai, Panch Witness no.1 and PW-2 Vinubhai Shamjibhai, Panch Witness No.2 have not supported the prosecution case and they have resiled from their statement made in the panchnama with regard to the recovery, seizing and sealing of the contraband Article opium in their presence. However, that fact itself cannot throw the case of the prosecution overboard as the panchnama (Exh.6) has been proved by the evidence of the prosecution witnesses. It is well settled by catena of decisions of the Supreme Court that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over-board as unreliable. It is well settled by catena of decisions of the Supreme Court that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over-board as unreliable. It may be realized that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasized that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision to the case were to depend solely on the testimony of panch witnesses regardless of the evidence of police officers, in theory, it would be giving a right to veto to the panch as so far as the question of culpability of an accused is concerned, which is not permissible in criminal jurisprudence. It is well settled that without good ground being pointed out, testimony of police officers, if otherwise found to be true and dependable, cannot be discarded by the court on the ground that they are police officers. On the facts and in the circumstances of the case, this Court finds that the contents of the panchnama is proved from the testimony of the police officer. (9) Now the next question which is required to be answered by us is that as to whether strict compliance of the statutory provisions contained under the NDPS Act has been followed or not. To answer this question, it would be relevant to refer to the evidence of the members of the raiding party vis-a-vis report of FSL. (10) We have reappreciated the evidence of PW-3 Tidabhai Gudabhai Sodha, PW-4 Anitsinh Ajubha Zala, PW-5 Harisinh Verubha Rana and PW-6 Sanjivbhai Maganbhai Pandey, who are members of the raiding party. To answer this question, it would be relevant to refer to the evidence of the members of the raiding party vis-a-vis report of FSL. (10) We have reappreciated the evidence of PW-3 Tidabhai Gudabhai Sodha, PW-4 Anitsinh Ajubha Zala, PW-5 Harisinh Verubha Rana and PW-6 Sanjivbhai Maganbhai Pandey, who are members of the raiding party. They have deposed about the secret information received by PW-7 Ranmal Nathabhai Dayatra, complainant, which was reduced into writing and thereafter necessary information was conveyed to the members of the raiding party, necessary formality of the first part of the panchnama was completed and thereafter they have started in the police jeep at the residence of the accused and on making search, one dim yellow and green coloured plastic bag was found lying near the corner of the south and the east wall, and on looking to the said bag, one black coloured substance wrapped in dim plastic bag was found which was taken out from the bag and on being smelt and got the same smelt before the panchas, the intoxicating opium weighing 1kg. and 800 grams was found, which was seized and sealed in presence of the panchas. They have unequivocally stated that the slip signed by the panchwitness was put inside the sample as well as affixed outside the sample. The said fact is also reflected from the panchnama and FIR. However, a perusal of the FSL report (Exh.33), which is more authentic, unequivocally suggests that there was only one loose slip signed by the panchwitness which was put inside the sample, seized and there was no second slip on the outer cover of the packet and there is no reference regarding the second slip signed by the panchwitness on the outer cover of the packet and below the seal. According to us, this would go to the root of the entire case. What is the impact of this defect or infirmity, is highlighted in so many decisions of this Court. (I) In the case of Sohanlal Kasiram Brahmin and Another vs. State of Gujarat and Another (supra), this Court has held that if the slip is kept loosely inside the sample, it would create doubt on the prosecution case, and therefore, conviction has been reversed by acquitting the accused of the offences with which the accused was charged. (II) In the case of Kamalprasad Ramajiprasad Gupta and Anr. (II) In the case of Kamalprasad Ramajiprasad Gupta and Anr. vs. State of Gujarat (supra), similar question arose before the Division Bench of this Court and the Division Bench answered in the same terms, and held that - if the slip is kept loosely inside the sample, it would create doubt on the prosecution case, and tampering of the contraband article cannot be ruled out, and therefore, conviction was reversed with which he was charged. (III) In the case of Bishnoi Mohanlal Bhakhararam vs. State of Gujarat (supra), Fatesing Gajesing Chauhan vs. State of Gujarat (supra) and Shakilabibi, wife of Shaikh Allarakkha Shaikh Kasam vs. The State of Gujarat, the Division Bench of this Court, in paragraph 10 has observed as under: 10. Since the defect in sealing procedure while sealing the contraband article or drawing samples therefrom would go to the root of the prosecution case and affect the investigation and the trial and since we have found such a defect in the procedure, we do not propose to deal with the other aspects of the appeal. (IV) In the case of Jitendra @ Sanjaykumar Suryakant Desai vs. State of Gujarat (supra) also, a Division Bench of this Court has laid down the same proposition of law that if there is defect in sealing process and the slip containing signature of the panchwitnesses is loosely kept inside, it would creat doubt on the prosecution case. (V) In the case of Ganpatram Punamram Vishnoi vs. State of Gujarat (supra) also, this Court has taken a similar view. (VI) In the case of Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas vs. State of Gujarat (supra), a Division Bench of this Court has held that the slips bearing muddamal samples were not affixed on samples, but were kept loose and if the slip not affixed but were kept loose, in that case, accused is entitled to acquittal. (VI) In the case of Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas vs. State of Gujarat (supra), a Division Bench of this Court has held that the slips bearing muddamal samples were not affixed on samples, but were kept loose and if the slip not affixed but were kept loose, in that case, accused is entitled to acquittal. Applying the principles laid by this Court in above referred to judgments, to the facts of the instant case, at the cost of repetition be it stated that though the oral testimony of the police officers, i.e. PW-3 Tidabhai Gudabhai Sodha, PW-4 Anitsinh Ajubha Zala, PW-5 Harisinh Verubha Rana and PW-6 Sanjivbhai Maganbhai Pandey, who are members of the raiding party, as well as panchnama and the FIR, it is mentioned that there were two slips one slip was kept inside the packet of the sample and the another slip was pasted outside the sample, but, infact the FSL report (Exh.33) certified that only one slip was kept loosely inside the sample. In this view of the matter, according to us, possibility of tampering with the sample cannot be ruled out, and therefore, the accused is entitled to benefit of doubt. (11) Seen in the above context, the impugned judgment and order of conviction and sentence recorded against the accused, deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offences with which he was charged by giving benefit of doubt. (12) For the foregoing reasons, the Appeal succeeds and accordingly it is allowed. Resultantly, the impugned judgment and order dated 14.7.2010 rendered in Special NDPS Case No. 1 of 2002 by the learned Additional Sessions Judge, Fast Track Court No.2, Bhavnagar, convicting the Appellant - accused of the offence punishable under Section 17 of the NDPS Act and sentencing him to suffer RI for 10 years and fine of Rs.1 lac and in default of payment of fine further RI for 1 year, is hereby quashed and set aside. (13) As a consequence thereof, the Appellant accused is acquitted of the said offence. (14) The Appellant accused is in jail, therefore, he be set at liberty forthwith, if not required in connection with any other offence. Fine, if paid, shall be refunded. Since the Appeal is allowed, Criminal Misc. (13) As a consequence thereof, the Appellant accused is acquitted of the said offence. (14) The Appellant accused is in jail, therefore, he be set at liberty forthwith, if not required in connection with any other offence. Fine, if paid, shall be refunded. Since the Appeal is allowed, Criminal Misc. Application, which is filed for enlarging the Applicant Appellant accused on regular bail during the pendency and final hearing of the above numbered Criminal Appeal, now does not assume any survival value and the same is hereby disposed of. Direct service is permitted.