JUDGMENT : DEEPAK GUPTA, J. 1. This appeal by the State is directed against the judgment dated 1.5.2003 passed by the learned Sessions Judge, Kullu, in Sessions trial No. 64/02 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Briefly stated the prosecution story is that on 15.2.2002 PW-9 S.I. Tameshwar Singh alongwith PW-4 HC Chaman Lal, HHC Om Prakash, constable Bachiter Singh, PW-5 constable Mori Ram, and constable Chand Prakash were present at Dalashni bridge where they had put up a barrier and were carrying out patrolling duty. PW-9 Tameshwer Singh, PW-4 Chaman Lal and Om Prakash remained at Dalashni bridge and the other members of the party proceeded towards Tharash. At about 4.30 a.m. the members of the patrolling party who had left towards Tharash sent a wireless message that they had tried to stop a jeep but that jeep had not stopped and was going towards Dalashni bridge. This jeep bearing registration No. HP-34-4772 was stopped by PW-9, PW-4 and HHC Om Prakash when it reached Dalashni bridge. When the jeep was checked one person was found sitting by the side of the driver and two persons were sitting in the rear seat of the jeep. The person sitting by the side of the driver disclosed his name to be Vishal Barder, resident of Maharashtra. The other two persons disclosed their names to be Jeet Ram and Inder Singh. According to the prosecution all these three persons were having one bag each. The bag being carried by Vishal Barder @ Saleem Khan was searched. In addition to some items of clothing there were two packets of charas, which on weighment was found to weigh 4.5 kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A" and sample seal impression Ext. PW-9/A was retained. Thereafter, bag of Jeet Ram was searched and inside the bag there was one packet of charas hidden under the items of clothing was found and on weighment this charas was found to weigh two kilograms. PW-9/A was retained. Thereafter, bag of Jeet Ram was searched and inside the bag there was one packet of charas hidden under the items of clothing was found and on weighment this charas was found to weigh two kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A" and sample seal impression Ext. PW-9/A was retained. Thereafter bag being carried by Inder Singh was searched and there was one blanket and a sheet in the bag and below this one polythene packet was kept which contained charas, which on weighment was found to be two kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A" and sample seal impression Ext. PW-9/A was retained. After recovery of the entire charas the accused were arrested and other codal formalities were completed at the spot. The driver of the jeep Gambhir Chand was also made co-accused. On the same day after the investigating party reached the police station PW-9 deposited entire case property with PW-6 Jindu Ram who resealed the same with seal impression "H". He then deposited the same with PW-3 MHC Bhagat Ram who on 17.2.2002 sent three sample parcels through PW-2 HHC Shayam Lal to CTL, Kandaghat. The chemical examiner vide his report Ext. PA, Ext. PB and Ext. PC opined that the sample was of charas and on this basis the accused were charged of having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. 2. The learned trial Court held that the prosecution has failed to prove the recovery and the link evidence is also missing and therefore, acquitted the accused. Hence, this appeal by the State. 3. The main witnesses of the prosecution are PW-9 S.I. Tameshwar Singh, PW-4 H.C. Chaman Lal and PW-5 constable Moti Ram. 4. 2. The learned trial Court held that the prosecution has failed to prove the recovery and the link evidence is also missing and therefore, acquitted the accused. Hence, this appeal by the State. 3. The main witnesses of the prosecution are PW-9 S.I. Tameshwar Singh, PW-4 H.C. Chaman Lal and PW-5 constable Moti Ram. 4. In this case there are no independent witnesses and indeed it would not be prudent to expect independent witnesses to be present at such a remote place and in the early hour of the morning at 4.30 a.m. However, when the case is based solely on the testimony of the official witnesses their testimony has to be examined with great care and caution and in case there are material contradictions in their testimony the accused have to be given the benefit. 5. The learned trial Court has found material contradictions in the statements of PW-4, PW-5 and PW-9. According to the prosecution story the police party proceeded on patrolling duty in a private vehicle. If it was a private vehicle it was not explained who was the owner of the vehicle and who was the driver. According to PW-4 HC Chaman Lal they went in a private truck upto Panarsa whereas PW-5 states that they went in a private truck upto Nagwain. Not only is there a contradiction in the statement of these two witnesses but according to PW-10 the police party went upto Dalashni bridge in a truck. Therefore/official witnesses are giving different version as to how they reached Dalashni bridge. 6. Another material flaw in the prosecution case is that Rukka Ext. PW-9/C about the incident was allegedly sent through PW-5 constable Moti Ram and his statement is that the same was handed over to him at 7.30 a.m. The F.I.R. Ext. PW-6/A was recorded on the basis of this Rukka in the police station at 8.30 a.m. Ext. PW-4/A to Ext. PW-4/F are the memos which were prepared at the spot qua the seizure of contraband from the possession of the accused persons and their subsequent arrest thereafter in the case. The memos Ext. PW-4/D, Ext. PW-4/E and Ext. PW-4/F, whereby the three accused were arrested, show that they were prepared at 9. a.m. If this time be correct then it is not possible to understand how there is reference of these memos in Rukka Ext. The memos Ext. PW-4/D, Ext. PW-4/E and Ext. PW-4/F, whereby the three accused were arrested, show that they were prepared at 9. a.m. If this time be correct then it is not possible to understand how there is reference of these memos in Rukka Ext. PW-9/C which was sent at 7.30 a.m. This clearly shows that the Rukka was not sent at 7.30 am and therefore, the investigation has not been fair. 7. Another flaw in the prosecution case is that according to PW-10 all the columns of NCB form were filled on the spot but PW-6 Jindu Ram states that column No. 7-b and 8 were filled in by him. The NCB form is Ext. PW-6/F. A bare perusal of this form shows that it was filled in by one handwriting and therefore, the statement of PW-6 that he had filled in column No. 7-b and 8 is incorrect. 8. PW-2 HHC Shyam Lal stated that PW-3 MHC Bhagat Ram had handed over three sealed parcels sealed with six seals of A and three seals of H, which he took to CTL Kandaghat but as per the certificate issued by the CJM, Kullu this parcel had eight seal each. Therefore, there is difference of one seal impression. Furthermore according to the prosecution witnesses both the officers PW-9 and PW-6 had put three seal impression each of "H" and 6 seal impression of "A". Therefore, this also does not tally. As such, the accused have to be given the benefit of doubt. 9. It would also be pertinent to mention that the charas recovered from Saleem Khan was marked as A-1, the charas recovered from Jeet Ram was marked as A-2 and that recovered from Inder Singh was marked as A-3. Thus, there would be one big parcel of 4.450 kilograms and two packets of 25 grams each, marked as A-1; one big parcel of 1.950 kilograms and two packets of 25 grams each, marked as A-2 and one big parcel of 1.950 kilograms and two packets of 25 grams each, marked as A-3. Out of these, one sample each was sent to the Chemical Analyst for analysis and the Police would be left with six cloth parcels, one of 4.450 kilograms, two of 1.950 kilograms and three small sample parcels of 25 grams each, i.e. the total charas would be 8 kilograms and 425 grams remaining with the Police. Out of these, one sample each was sent to the Chemical Analyst for analysis and the Police would be left with six cloth parcels, one of 4.450 kilograms, two of 1.950 kilograms and three small sample parcels of 25 grams each, i.e. the total charas would be 8 kilograms and 425 grams remaining with the Police. 10. The Station House Officer, Police Station Kullu, filed an application before the learned Chief Judicial Magistrate, Kullu, u/s 52A(2) of the NDPS Act for disposal of the seized narcotic drug, in which it was stated that 8 kg 500 gms. charas was recovered. The application has been exhibited as Ex. PW-8/A before the learned trial Court. In the inventory, it is clearly stated that the quantity of the charas is 8 kg 425 gm and in the column of particulars is stated that six cloth parcels having 1.950 kg, II. 4.450 kg, III. 1 kg 950 gms. and three parcels having 25-25 gms. each sealed with seal impressions 'H' and 'A'. In the remarks column, it was mentioned that 8.50 kg of charas was recovered during patrolling, out of which six samples of 25 gms. each were drawn for chemical analysis and three samples have been sent to the Chemical Analyst on 17.02.2002. The inventory list has been exhibited as Ex. PW-8/B. 11. The order passed by the learned Chief Judicial Magistrate reads as follows: In the matter of:-- State Versus Beshal. Case FIR No. 99/2002, dated 152.2002. Under Section 20 of N.D.P.S. Act, P.S. Kullu. 29.4.2002 Present:-Inspector Sanjay Sharma, SHO, P.S. KULLU, HC Bhagat Ram, MHC, P.S. Kullu, with Shri Mahesh Sen, ld. A.P.P. for State. Case property in case FIR No. 99/2002 dated 15.2.2002, u/s 20 of N.D.P.S. Act, P.S. Kullu in one big parcel weighing 1.950 k.gms. and two small parcels being sample packets weighing 25 gms. and two small parcels being sample packets weighing 25 gms. each produced before me by HC Bhagat Ram, MHC, P.S. Kullu. The seals having affixed on the same were found intact and then all the three packets one big and two small were opened and mixed properly and then one representative sample of 25 gms. was separately taken as case property and then the sample packet of 25 gms. each produced before me by HC Bhagat Ram, MHC, P.S. Kullu. The seals having affixed on the same were found intact and then all the three packets one big and two small were opened and mixed properly and then one representative sample of 25 gms. was separately taken as case property and then the sample packet of 25 gms. and the remaining contents were separately packed and sealed with eight seals of "CJM" after observing the codal formalities and the certificate to this effect was separately given as per the requirement of law and both the big and small packets were handed over to HC Bhagat Ram, MHC P.S. Kullu. These papers be submitted to the Court of ld. Special (Sessions) Judge, Kullu, for information and record. Announced. 29.4.2002. Sd/- (J.S. Mahantan) Chief Judicial Magistrate, Kullu, HP. This order is Ex. PW-8/B. 12. The certificate issued by the Chief Judicial Magistrate reads as follows: "CERTIFICATE" Certified that Six while cloth parcels in case FIR No. 99/2002 dated 15.2.2002, u/s 20 of N.D.P.S. Act, P.S. Kullu having sealed with eight seals were produced before me by HC Bhagat Ram, MHC P.S. Kullu and the seals were found intact before opening and after verifying all the Six packets one big packet containing 1.950 k.gms and to small packets containing 25 gms. each of similar substance alleged to be Charas were opened and after having mixed properly, all the six packets, one representative sample of 25 gms. was separately taken and weighed in my presence in the Court and sealed with eight seals of "CJM" being case property and rest of the contraband was put in another parcel and sealed with eight similar seals of "CJM" which bear my signatures and date and thereafter the big packet and the representative sample packet of 25 gms. to be retained as case property, returned to HC Bhagat Ram, MHC P.S. Kullu in the Court and the seal was handed over to Shri Mangal Chand, Civil Nazir, of this Court. Sd/- (J.S. Mahantan) Chief Judicial Magistrate, Kullu, H.P. The same is exhibited as Ex. PW-8/C. 13. to be retained as case property, returned to HC Bhagat Ram, MHC P.S. Kullu in the Court and the seal was handed over to Shri Mangal Chand, Civil Nazir, of this Court. Sd/- (J.S. Mahantan) Chief Judicial Magistrate, Kullu, H.P. The same is exhibited as Ex. PW-8/C. 13. In case, the order is perused, it appears that only one big parcel weighing 1.950 kg and two small parcels weighing 25 gms each were produced before the learned Chief Judicial Magistrate and the remaining contents were separately packed and sealed with eight seals of "CJM" and returned to the police officials. We fail to comprehend how this order was passed only with respect to about 2 kg of charas when the charas produced before the Magistrate weighed 8 kg 425 gm. 14. Even the perusal of the certificate only shows that six packets were produced before the Chief Judicial Magistrate and after verifying all the six packets, he found that one big packet contained 1.950 kg and the small packets contained 25 gm each of substance which would mean that there was 125 gms substance in five small packets and thus the total charas would be 2 kg and 75 gm. The certificate does not even bear the date or seal of the learned CJM. As mentioned above, the charas which was actually produced before the Magistrate was 8 kg 425 gm. The proceedings were conducted in such an improper manner that there is full possibility of the remaining almost 6-1/2 kg of charas being mis-utilized/misappropriated. 15. The learned Chief Judicial Magistrate, in our opinion, did not comprehend the provisions of Section 52A and failed to discharge his duties in a proper manner. The manner in which the order has been typed, certificate issued clearly indicate that the Magistrate did not pay proper attention to this very important issue. 16. Before parting with the case, we are constrained to observe that in a large number of cases we are finding that some Magistrates are not fully conversant with the provisions of Section 52A of the Act and the manner in which certification by them has to be carried out. Section 52(A) of the Act reads as follows :-- [52A. 16. Before parting with the case, we are constrained to observe that in a large number of cases we are finding that some Magistrates are not fully conversant with the provisions of Section 52A of the Act and the manner in which certification by them has to be carried out. Section 52(A) of the Act reads as follows :-- [52A. Disposal of seized narcotic drugs and psychotropic substances (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to theft substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official, Gazette, specify such narcotic drugs or psychotropic substance or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs or psychotropic substances has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered u/s 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or, psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any purpose of,-- (a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or (c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in request of such offence.] 17. This is a very important provision. Narcotic Drugs and Psychotropic Substances are vulnerable to misuse. When huge quantities of contraband are seized it is not possible to keep them safely in the Malkhanas and there may be a chance of pilferage or the narcotic substances falling in wrong hands. Therefore, the aforesaid Section was inserted in the NDPS Act. Under sub-section (2) of the aforesaid Section after the contraband has been produced before the empowered officer u/s 53 of the Act the said officer is required to prepare a inventory of the alleged Narcotic Drugs and Psychotropic Substances containing details relating to their description, quality, quantity, mode of packing, marks, numbers and other identifying particulars on the packing in which they are packed. The country of origin and other particulars as referred to in sub-section (1) may also be considered relevant to identify the narcotic drugs. Thereafter, the empowered officer can apply to any Magistrate u/s 52A for the purpose of; certifying the correctness of the inventory so prepared; or taking in the presence of the Magistrate, photographs of such drugs or substances and certifying such photographs as true and lastly allowing to draw representative sample of such drugs or substances in the presence of the Magistrate and certifying the correctness of any list of samples so drawn. The Magistrate is required to deal with this application forthwith. Under sub Section (4) the inventories, photographs and list of samples certified by the Magistrate are to be treated as primary evidence by the Court trying the offence. 18. Thus, it is apparent that an onerous and important duty is cast on the Magistrate. The Magistrate must ensure that the inventory prepared by the Officer is proper. We would like to reiterate that this job must be performed by the Magistrate himself and he cannot issue the certificate merely on the asking of the police officer. 18. Thus, it is apparent that an onerous and important duty is cast on the Magistrate. The Magistrate must ensure that the inventory prepared by the Officer is proper. We would like to reiterate that this job must be performed by the Magistrate himself and he cannot issue the certificate merely on the asking of the police officer. The Magistrate must personally and by himself verify the correctness of the inventory. Therefore, a duty is cast upon the Magistrate to verify the number of seals, the seal impression and he should tally the same with the sample seal impression. The Magistrate should not blindly copy what is stated in the application filed u/s 52A but it is his duty to ensure that he records the exact number of seals, the seal impression, the other special markings or identification marks on the parcels. He must ensure and write down whether the seals are broken or intact. He must also clearly observe whether the parcel appears to be tampered with or not. He must ensure that the Narcotic Drugs and Psychotropic Substances are weighed in his presence and thereafter he should certify the inventory. 19. In case samples have to be drawn the Magistrate must ensure that if there are more one packet then separate samples are drawn from each packet. Obviously, he need not draw samples from the parcels stated to be parcels of samples if drawn by the police but in case of a plurality of bulk parcels he must ensure that separate samples are drawn from each packet. The Magistrate should also ensure that before drawing the parcels he makes the substance homogenous. We are not going into the details as to how the substance has to be made homogenous but all Magistrates have received training whereby it has been explained to them how material is made homogenous so that a representative sample of the whole is drawn. This is normally done by cutting the bulk into a number of smaller units usually four, re-uniting them then cutting them again and then re-uniting them. The Magistrate then must ensure that the samples and the bulk drugs are again resealed in a proper manner. His zimini order and proceedings should reflect each and every action taken by the Magistrate. In case photographs are taken then the Magistrate must ensure that the same are taken in his presence. The Magistrate then must ensure that the samples and the bulk drugs are again resealed in a proper manner. His zimini order and proceedings should reflect each and every action taken by the Magistrate. In case photographs are taken then the Magistrate must ensure that the same are taken in his presence. We must again reiterate that this job has to be done by the Magistrate himself and cannot be delegated to any member of the Court staff. Accordingly, we find no reason to interfere in the judgment of the learned trial Court. The appeal is accordingly dismissed. The bail bonds are discharged.