JUDGMENT I.S. Shrivastava, J. 1. The appeal has been preferred under section 374 of the Cr.P.C by the appellants Bansilal, Gendabai and Prema @ Pepabai being aggrieved by the judgment dated 22/09/2008 passed by the Court of Shri J.P. Rao, Special Judge (under NDPS Act), Neemuch in Special Sessions Case no.15/2004 by which the appellants have been convicted under sections 8/ 18(b) of the Narcotic Drugs & Psychotropic Substances Act (in short 'the Act') and sentenced to undergo rigorous imprisonment of 13 years with fine of Rs.1,50,000/- each; in default of payment of fine to undergo rigorous imprisonment of three years by each. 2. According to the prosecution story, on 04/04/2004 Shri Khalil Khan, ASI, Police Station- Neemuch Cant PW-8 received an information from the informer that one gents and two ladies were conveying the opium in nags used for carrying clothes and they were likely to go from Roadways Bus Stand Neemuch to Rajasthan by bus. The above information was registered in Rojnamcha-sana. Panchanama for the information of the informer was prepared and sent to CSP Neemuch. Thereafter, ASI Khalil Khan along with head constable Omprakash Singh, Bansilal Bhati, constable Ramesh Bairagi, lady constable Kiran Sharma and panch witnesses Kishanlal and Baludas and with articles for investigation reached the Roadways Bus Stand, Neemuch by govt. vehicle bearing registration no. M.P.-03-2656. There they found the accused persons (two ladies and one gents) holding bags in their hands. On enquiry, they confirmed their names to be Bansilal, Gendabai and Pepabai. They were apprised with the information of the informer. Consent for their search was obtained under section 50 of the NDPS Act. Panchanamas were prepared. Thereafter, ASI Khalil Khan conducted personal search of accused. Bansilal and nothing was seized from his personal search. Thereafter, personal search of accused Gendibai and Pepabai was conducted by lady constable Kiran Sharma, but nothing was seized. The bags in the possession of Bansilal and Gendabai were searched, from which a plastic bag was recovered which contained opium. For this search panchanama was prepared. Thereafter, the bag in the possession of Pepabai was searched, from which a regzine bag was recovered which contained a plastic bag, which was contained with opium. Hence, panchanama was prepared. The bags in the possession of Bansilal and Gendabai were searched, from which a plastic bag was recovered which contained opium. For this search panchanama was prepared. Thereafter, the bag in the possession of Pepabai was searched, from which a regzine bag was recovered which contained a plastic bag, which was contained with opium. Hence, panchanama was prepared. On weightment of the opium recovered from Bansilal and Gendibai, it was found to be 7.300 kg, from which two samples of 30 grams each were prepared, sealed and marked as Articles A-1 A-2 and the remaining quantity was sealed in the same bag and marked as Article - A. Seal impression panchanama was prepared. On weightment of the opium recovered from the possession of Pepabai, it was found to be 8 kg with the bag; from which two samples of 30 grams each were prepared, sealed and marked as Articles B-1, B-2 and remaining quantity was sealed in the same regzine bag and marked as Article- B. Seal impression panchanama of the same was prepared. Other relevant panchanamas were also prepared. The accused persons were arrested. On return to the police station, report under section 57 of the Act was sent to Superintendent of Police, Neemuch. The seized property was deposited in the Malkhana and it was handed over to Head Constable, In-charge of Malkhana. In-charge of police station- Neemuch Cant Shri B.P. Samadhiya registered the offence under section 8/ 18 of the NDPS Act at crime no. 191/ 2004. Thereafter, samples Articles A-1 and B-1 were sent to FSL, Indore for chemical examination. Thereafter, proceedings under section 52A of the Act was taken up before the Executive Magistrate, Neemuch and after completion of investigation, challan was filed against the appellants. After trial, the appellants have been convicted as mentioned herein above. 3. It has been argued on behalf of the appellants that they have been falsely implicated in this case. The independent witnesses were hostile. Compliance of section 52A of the Act was not proved. The seized property was not produced at the time of the evidence in the trial Court; only samples were produced. The proceedings under section 50 of the Act was defective. The search of lady accused persons by lady constable Kiran Sharma was not proved. The lady constable was not examined at the time of the evidence. The seized property was not produced at the time of the evidence in the trial Court; only samples were produced. The proceedings under section 50 of the Act was defective. The search of lady accused persons by lady constable Kiran Sharma was not proved. The lady constable was not examined at the time of the evidence. Hence on the basis of the evidence produced, the appellants were not liable to be convicted. Hence the appeal be accepted. 4. It has been argued on behalf of the respondent/State that the case was proved on the basis of the evidence produced before the Trial Court. As per the FSL report, in the seized property, presence of opium was confirmed. The proceedings were taken up as per procedure. Hence the appeal being devoid of merit, be dismissed. 5. Considered the arguments. Record of the Trial Court perused. 6. As regard to panchanamas Ex.-P/5 to Ex.-P/27, Baludas PW-3 has deposed that he knew the accused persons. At about 1 1/2 to 2 years back, he along with Kishanlal had gone at Neemuch Cant Police Station, where ASI Omveersingh had informed them about the information of the informer. In this respect, Panchanama Ex.-P/5 was prepared. Thereafter, he and Kishanlal along with police force reached Neemuch Roadways Bus Stand where accused persons found. On search of Bansilal and Gendibai, Bansilal was having a bag in his hand, from which 7.300 kg opium was recovered. He does not know that what was in the possession of Gendibai. On search of Gendibai, a bag was found, from which 8 kg opium was seized. Samples were prepared. Ex.-P/7 to Ex.-P/23 bear his signatures. Lady constable Kiran Sharma also accompanied him. Gendibai and Papabai were searched before him. It is corrected to say that 7.300 Kg opium was seized from the bag of Bansilal and Gendibai, from which two samples were prepared. From the bag in the possession of accused Pepabai, 8 kg opium was seized and two samples were prepared and panchanama Ex.-P19 and Ex.-P/20 were prepared respectively before him. Articles A-2 and B-2 bear his signatures. In cross-examination, he deposed that on that day, when he went at police station, Kishanlal was already present there. He reached the police station at near about 10-11 am. He was apprised with the information of the informer by the head constable Omveersingh. Articles A-2 and B-2 bear his signatures. In cross-examination, he deposed that on that day, when he went at police station, Kishanlal was already present there. He reached the police station at near about 10-11 am. He was apprised with the information of the informer by the head constable Omveersingh. He signed on panchanamas Ex.-P/7 to Ex.-P/22 at the police station. Again he repeated that he signed all the papers at the police station. When they reached on the bus-stand, the accused persons were immediately caught and brought to the police station. All the proceedings were taken up at the police station. The accused persons were not apprised with the information of the informer. On specific question, he said that the fact that the property was seized on the spot is correct and the statement which he is giving is correct. Even it is also correct that before him the accused persons were arrested and nothing was seized. About the statement of this witness, it has been argued by the appellants that this witness is not reliable because he has stated in favour of the prosecution first and thereafter, in the cross- examination, he has contradicted his earlier statement. It shows that he is interested and tutored witness. In cross-examination, he has deposed that all the panchanamas were prepared at the police station and the accused persons were immediately brought to the police station. It may be that the witnesses being tutored may give statement in favour of parties, who has called him, but in cross-examination, naturally he will speak the truth of the proceedings which had taken place before him. According to seizure panchanama Ex.-P/19, Panchanama was prepared in respect of opium seized from Bansilal and Gendibai at 10.50 am. According to seizure panchanama Ex.-P/20, it was prepared at 10.55 am with respect to the opium seized from the possession of Pepabai. Previous to it, Panchanama Ex.-P/5 to Ex.-P/18 were prepared in between 7.10 am to 10.30 am. But this witness has not supported that all these panchanamas were prepared and he has not stated about their timings. According to seizure panchanama Ex.-P/20, it was prepared at 10.55 am with respect to the opium seized from the possession of Pepabai. Previous to it, Panchanama Ex.-P/5 to Ex.-P/18 were prepared in between 7.10 am to 10.30 am. But this witness has not supported that all these panchanamas were prepared and he has not stated about their timings. The fact that the accused persons were brought to the police station and all the papers were prepared at the police station and the fact that Kishanlal PW-6 signed on blank papers shows that they have not supported the prosecution case and no proceedings were taken up before him on the spot, otherwise, they would have naturally deposed that all the panchanamas were prepared on the spot along with their sequence and timings. 7. According to the statement of Kishanlal PW-6, he has deposed that he did not know the accused persons. He went to Neemuch Cant police station where ASI Khalil Khan was present. Two bags containing opium were kept there. Khalil Khan PW-8 told him that one bag contained 7.300 kg opium and another bag contained 8 kg opium. He prepared samples from them. After weightment, he prepared two samples of 30 grams each from each bag and they had sealed and the remaining quantity of the opium was sealed. His signatures were obtained on the samples and thereafter, he let him to go. Panchanama Ex.-P/5 to Ex.-P/23 bear his signatures. In cross-examination, he has not supported the proceedings taken up by the seizing officer step by step. He has deposed in cross-examination that he signed on all the blank papers at the police station. In this way, this witness has not supported the fact that he reached the spot and before him the opium was seized from the accused Bansilal and Gendibai in one bag and from another bag in the possession of accused Pepabai. Hence panchanamas Ex.-P/5 to Ex.-P/27 were not proved by the independent evidence. The seized property was not produced at the time of the evidence. At the time of statement of Kishanlal PW-6, samples Articles A-1 B-1 were produced before him and bulk quantity containing opium Article- A and B was not produced before the Court. Hence panchanamas Ex.-P/5 to Ex.-P/27 were not proved by the independent evidence. The seized property was not produced at the time of the evidence. At the time of statement of Kishanlal PW-6, samples Articles A-1 B-1 were produced before him and bulk quantity containing opium Article- A and B was not produced before the Court. During proceedings under section 52A of the Act samples B-1 B-2 were prepared from Article A and samples C-1 C-2 from Article B. They were also not produced during the evidence, hence in the absence of bulk quantity of the seized opium, it cannot be said that the samples A-1 B-1 were prepared from the bulk quantity. In this way, seizure memo Ex.-P/19 and Ex.-P/20 were not legally proved. 8. In Jitendra and another Vs. State of M.P. reported in 2004 (10) SCC 562 , it has been held by the Apex Court that: The evidence to prove that charas and ganja were recovered from the possession of accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak PW-7, Angad Singh PW-8 and sub-inspector D. J. Raj PW-6, there is no independent witness as to the recovery of the drugs from the possession of accused. The Charas and Ganja alleged to have been seized from the possession of the accused, were not even produced before the Trial Court, so as to connect it with the samples sent to the FSL. There is no material produced in the Trial apart from the interested testimony of police officers, to show that the Ganja and Charas were seized from the possession of the accused or that the samples sent to FSL which were taken from drugs seized from the possession of the accused. In the Trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of Charas and Ganja were seized from the possession of accused. The best evidence would have been the seized materials, which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. The best evidence would have been the seized materials, which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden, which lies on the prosecution, particularly where the offence is punishable with stringent sentence under the NDPS Act The same view has been adopted Noor Aga Vs. State of Punjab [2008 IV AD-Cri (SC) 337] as well as in the case of Laxminarayan Vs. State of M.P. [ 2009 (2) JLJ 148 ] 9. According to the statement of B. P. Samadhiya PW-7, he conducted proceedings under section 52A of the Act before the Executive Magistrate, Neemuch vide order sheet Ex.-P/32, which reveals that Nayab Tehsildar and Executive Magistrate prepared samples B-1 B-2 from bulk quantity of opium Article - A. and C-1 C-2 from the bulk quantity of opium Article-B. Article B-1 B-2 and C-1 C-2 along with Articles A & B were returned to T.I. Neemuch police station Shri B. P. Samadhiya PW-7. They have not been produced in the Court at the time of evidence. This order sheet also shows that pre-trial disposal of the seized opium was not conducted. It was the duty of the prosecution to produce the seized property in the Court. 10. As regard to search of the lady accused persons, it has been argued that the search of lady accused Pepabai and Gendibai must have taken by the lady constable in presence of the lady witnesses, otherwise, the search of the person of ladies was not possible and the proceedings taken up by investigating officer is merely a formality. 11. Considered the arguments. In Panchanama Ex.-P/8 consent of accused Gendibai and in panchanama Ex.-P/9 consent of Pepabai were obtained under section 50 of the Act for their personal search and for the search of the bag. The independent witnesses of proceedings were Baludas PW-3 and Kishanlal PW-6. Ex.P/15 was prepared for the search of Gendibai and Panchanama Ex.-P/16 was prepared for Pepabai about their consent for their search by lady constable. In panchanama Ex.-P/15,. it has been mentioned that the search of Bansilal and Gendibai was taken up by joint panchanama. The independent witnesses of proceedings were Baludas PW-3 and Kishanlal PW-6. Ex.P/15 was prepared for the search of Gendibai and Panchanama Ex.-P/16 was prepared for Pepabai about their consent for their search by lady constable. In panchanama Ex.-P/15,. it has been mentioned that the search of Bansilal and Gendibai was taken up by joint panchanama. At the margin of these panchanamas, it has been mentioned that the search of Gendibai and Pepabai was taken up by Kiran Sharma in the jeep. The independent witnesses of these panchanamas are Baludas PW-3 and Kishanlal PW-6. At the time of the search, if both these witnesses were not present, then the search was not as per procedure because if the search was being taken in the jeep, the independent witnesses must have been present there. This shows that at the time of the search of the person of two ladies, the independent witnesses were not present there. It is worth mentioned that to prove the fact of the search, Kiran Sharma has not been examined by the prosecution in this respect. Hence it has not been proved that the search of Gendibai and Pepabai was taken up by the lady constable in the jeep. Khalil Khan PW-8 has not deposed the fact that the search of Pepabai and Gendibai was taken in the jeep, hence the search of Gendibai and Pepabai by lady constable has not been proved. In the case of State of Punjab Vs. Surinder Rani @ Chhindi [ 2001(2) EFR 8 ] it has been held by the Apex Court that compliance of section 50(4) of the Act is mandatory. No female can be searched by male. In Dilip and another Vs. State of M.P. [ 2008 (1) SSC 450], it has been held that: Whenever a lady is to be searched her search can only be carried out by lady according to section 50(4) and 50(2) of the act. Name of the female carrying search is also to be noted, but in the present case, search of the lady accused/appellant was not conducted as per the provisions of law Similar view has been adopted in the case of State of Punjab Vs. Baldevsingh [ 1999 (6) SCC 172 ], therefore the search of the lady accused was not conduced according to the privation of section 50(4) of the Act. 12. Baldevsingh [ 1999 (6) SCC 172 ], therefore the search of the lady accused was not conduced according to the privation of section 50(4) of the Act. 12. It has also been argued by the appellant's counsel that on notice Ex.-P/7 and Ex.-P/8 under section 50 of the Act signatures of lady constable Kiran Sharma has not been obtained, which was necessary in the absence of it, it cannot be said that she was present at that time. There panchanamas was prepared by Khalil Khan. Considered the arguments. Though all these proceedings for preparation of panchanama was conducted by Khalil Khan PW-8, but to prove the fact that lady constable Kiran Sharma is present on the spot, when the consent for the search by lady constable was obtained from the accused Gendibai and Pepabai, her signatures must have obtained on these panchanamas Ex.-P/7 Ex.8. Since signatures of lady constable Kiran Sharma are not on Ex.-P/ 7 and Ex.-P/8, this creates doubt whether she was present at the time of the notice under section 50 of the Act to lady accused Gendibai and Pepabai. 13. On the basis of the above discussions, I am of the view that at the time of the trial, the seized property was not produced before the Court. The independent witnesses did not support the prosecution case. The proceeding under section 52A of the Act was not proved. The search of the lady accused were not taken up by the lady constable. Search of the lady accused was defective and the notice under section 50 of the Act was defective. Under these circumstances, the appellants were not liable to be convicted, hence this appeal deserves to be allowed. 14. Accordingly, this appeal is allowed and the conviction of appellants Bansilal, Gendibai and Pepabai under sections 8/ of the NDPS Act is hereby set aside. They be released, if not required any other offence. Hence ordered accordingly.