JUDGMENT (Passed on this 4th day of December, 2012) This appeal is filed against the judgment dated 9.03.2009 passed by the Special Judge (NDPS), Rajgarh whereby the appellant has been convicted for offence under section 8/18 of the N.D.P.S.Act and sentenced to undergo R.I. for 10 years with payment of fine of Rs.1,00,000/-and in default of payment of fine to further undergo R.I. for 3 years. In short the case of the prosecution reads as under:- ^^vfHk;kstu dk ekeyk bl izdkj gS fd fnukad 3-9-06 dks Fkkuk izHkkjh ekpyiqj] jkeukFk frokjh ¼v-lk-@12½ gejkg d`".kdqekj 'kekZ] flikgh tks;h eh.kk] vejflag vkfn ds lkFk ?kks?kViqj jksM+ ij okgu psfdax ds fy;s [kM+s gq, FksA pSfdax ds nkSjku yxHkx lk<+s 11 cts lks;r jksM dh vksj ls ,d eksVjlkbZfdy ftl ij 3 O;fDr lokj Fks vkSj muds ikl ,d dkys&lQsn jax dk cSx Hkh Fkk] vkbZA eksVjlkbZfdy dks jksdus dk ladsr fn;k] rc eksVjlkbZfdy pkyd us eksVjlkbZfdy ugha jksdh vkSj txg feyrs gh eksVjlkbZfdy ekpyiqj jksM ij eksM+ nhA rc Fkkuk izHkkjh jkeukFk frokjh dks 'kadk gqbZ fd cSx esa voS/k inkFkZ gks ldrk gSA mUgksaus viuh eksVjlkbZfdy ls ihNk fd;k rFkk Fkkuk ekpyiqj ij Hkh lwpuk nh fd vk jgh eksVjlkbZfdy dks jksdk tkosA ihNk djrs gq;s yxHkx 4 fd-eh-nwj ekpyiqj ds vkxs eksVjlkbZfdy dks jksdk x;kA ftlesa ls ,d O;fDr Hkkx x;kA ftl O;fDr ds ikl FkSyk Fkk] mlus viuk uke jes'k mQZ lqjs'k crk;k rFkk eksVjlkbZfdy pkyd us viuk uke egsUnz crk;kA jes'k ds ikl FkSyk Fkk] ftlesa eknd inkFkZ gksus dh 'kadk Fkh] blfy;s Fkkuk izHkkjh us nks iap xokg pkSjkgs ij [kM+s gq, Fks] ftuds uke xksfoUn vkSj ltu Fks] mUgsa cqyok;kA Fkkuk izHkkjh us vkjksih dks lwpuk nh fd vkids ikl vQhe gksus dh 'kadk gS] vkidh ryk'kh ysuk gSA** After completion of investigation, challan was filed. It is submitted that the contraband article which were seized in this case as per the story of the prosecution were not produced before the Court during the course of trial and as such, there is violation of Section 52-A of the Act which is mandatory in nature. It is submitted that the contraband article which were seized in this case as per the story of the prosecution were not produced before the Court during the course of trial and as such, there is violation of Section 52-A of the Act which is mandatory in nature. It is submitted that on account of violation of such provisions of the Act and there being nothing on record to substantiate the reason for non-production of the contraband articles or any evidence, or certificate to show that the contraband articles were destroyed, the conviction of the appellant for offence under Section 8/18 of the N.D.P.S.Act deserves to be set aside. Reference has been made to para 17 of the judgment which is reproduced as under:- ^^17-tIrh vf/kdkjh jkeukFk ¼v-lk-@12½ rFkk gjh'k ¼v-lk-@5½ dh vfHklk{; vuqlkj >ksys esa ls dkys jax dk inkFkZ fudyk Fkk] ftls law?kdj vkSj jxM+dj vQhe ds :i esa igpkuk FkkA lkf{k;ksa ds mDr rF; dks izfr ijh{k.k esa dksbZ pqukSrh ugha nh xbZ gSA cfYd mDr lkf{k;ksa ds dFku dh iqf"V iz-ih-@5 ds igpku iapukes ls Hkh gksrh gSA cjken fd;s x;s inkFkZ dks iz-ih-@7 ds iapukes vuqlkj 50&50 xzke ds 2 lsaiy fudkydj vkfVZdy , 1] , 2 ls fpfUgr dj Fkkuk ekpyiqj ftyk jktx<+ dh lhy ls lhycan fd;k x;k FkkA mDr eky dks iz/kku vkj{kd chjcy ¼v-lk-@15½ us fnukad 3-9-06 dks jkeukFk frokjh ¼v-lk-@12½ }kjk tek djus ij eky[kkuk esa tek fd;k Fkk vkSj mldh izfof"V eky[kkuk jftLVj ds dzekad 60@06 ij ntZ dh FkhA mDr iSdsV esa ls vkfVZdy , 1 dk iSdsV fnukad 4-9-06 dks vkj{kd jkexksiky ds lkFk {ks=h; U;k;ky;hu foKku iz;ksx'kkyk Hkksiky tkap gsrq fHktok;k Fkk] tgka ls mlus fnukad 5-9-06 dks tek jlhn ykdj iz-ih-@17 dh nh Fkh] ftldh iqf"V iz-ih-@3 dh eky[kkuk jftLVj esa banzkt ls Hkh gksrh gSA iz/kku vkj{kd ys[kd chjcy ¼v-lk-@15½ ds mDr dFku dks izfr ijh{k.k esa dksbZ pqukSrh ugha nh xbZ gSA chjcy dk dFku v[kaMuh; jgk gSA tIrh vf/kdkjh dk Hkh ;g dFku fd mUgksaus , 1] , 2 ds uewus rFkk , dk 'ks"k eky eky[kkus esa tek fd;k Fkk] ftldh iqf"V chjcy ¼v-lk-@15½ us dh gS vkSj mlh , 1 ds lSaiy dks {ks=h; U;k;ky;hu foKku iz;ksx'kkyk Hkksiky tkap gsrq fHktok;k x;k Fkk] ftldk leFkZu jkexksiky ¼v-lk-@11½ us Hkh vius dFku esa fd;k gSA jkexksiky ¼v-lk-@11½s us vi-dz-148@06 dk eky fnukad 5-9-06 dks {ks=h; U;k;ky;hu foKku iz;ksx'kkyk esa tek dj iz-ih-@17 dh jlhn ykdj nh Fkh] bl rF; dks cpko i{k us fookfnr ugha fd;k gSA iz-ih-@17 dh jlhn ls Hkh mDr rF; dh iqf"V gksrh gSA ;gh ugha ,Q-,l-,y-Hkksiky ls izkIr tkap izfrosnu vuqlkj Hkh vi-dz-148@06 dk , 1 dk lsEiy jkexksiky }kjk gh tek fd;k x;k Fkk] ftldh tkap djus ij lgk;d jlk;fud ijh{kd }kjk iz-ih-@21 dh fjiksVZ nh gSA Hksts x;s , 1 ds lsEiy ij tIrh vf/kdkjh ds vuqlkj ekpyiqj ftyk jktx<+ dh lhy ls mls lhycan fd;k x;k Fkk] mlds bl dFku dh iqf"V iz-ih-@21 esa mYysf[kr tek eky dh tkap ds nkSjku jlk;fud oSKkfud us Hkh uewus ij ekpyiqj ftyk jktx<+ dh lhy yxh gksuk gh ik;k x;k gSA vr% ekSds ij cjken fd;s x;s eky dks gh tkap gsrq {ks=h; U;k;ky;hu foKku iz;ksx'kkyk Hkksiky Hkstk x;k FkkA ftls ijh{k.k izfrosnu fjiksVZ vuqlkj cjken fd;s x;s inkFkZ esa vksfi;e ikWih dk v'kqf);qDr dks,XysVsM T;wl gksdj] mlesa 3-94 izfr'kr ekfQZu ikbZ xbZ FkhA bl izdkj iz-ih-@2 dh fjiksVZ Hkh ekSds ij tIrh vf/kdkjh rFkk vU; lkf{k;ksa }kjk HkkSfrd :i ls iz'uk/khu inkFkZ dks law?kdj vkSj jxM+dj ns[kus ij vQhe gksuk ik;k Fkk] mldh iqf"V jlk;fud ijh{k.k fjiksVZ iz-ih-@21 ls Hkh gksrh gSA vr% ;g izekf.kr gS fd iz'uk/khu inkFkZ vQhe gSA** Counsel has also relied upon a judgment delivered by the Supreme Court in the case of Noor Aga Vs. State of Punjab and another reported in 2008 Cr.L.R (SC) 655. Relevant paragraphs reads as under:- “93. Omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in Court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1B) of the 1962 Act. An order was required to be passed under the aforesaid mentioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of the Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs 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 he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes: “(a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs of 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.” 94. Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefor such a provision is made would be evident from sub-section (4) of Section 52-A which reads as under: “52-A. Disposal of seized narcotic drugs and psychotropic substances.— (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 subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 96. We must also notice a distinction between Section 110(1-B) of the 1962 Act and Section 52-A(2) of the Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52-A. It is of some importance to notice that Para 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52-A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1-B) of the 1962 Act as the aspect of disposal clearly provided for under Section 52-A of the Act is not alluded to. The High Court in its judgment purported to have relied upon an assertion made by the prosecution with regard to prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to destruction of case property, stating: “To a specific query put to Mr Guglani by the Court with regard to the aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained under Section 110(1-B) of the Customs Act. He states that in this regard, a sample as per the provisions contained in sub-clause (c) to clause (1-B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed. He states that in this regard, a sample as per the provisions contained in sub-clause (c) to clause (1-B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed. May be, in my view, some irregularities are committed in this case by the Customs Department while obtaining the order, Exhibit PJ from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved under Section 110(1-B) of the Customs Act or at least a specific request in this regard should have been made in the application, but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution from which the appellant can derive any benefit especially under the circumstances when confessional statements made by the appellant are held to be made voluntarily as observed by me hereinabove…. Similarly, nonproduction of cardboard carton is also not fatal to the prosecution.” The appellant in this case has already completed R.I. for 6 years and infact on account of the statutory violation of law, even such detention was not required. It is very interesting to note in this case that the trial Court has simply ignored the relevant provisions of Section 52-A of the Act and has not stated anything dealing about compliance of these provisions. The trial Court on the basis of the FSL report has convicted the appellant without taking note of the fact that the contraband was not produced in the Court. In view of the aforesaid, the judgment of the trial Court dated 09.03.2009 is set aside. He shall be released forthwith, in case he is not wanted in any other case. C.C. as per rules