JUDGMENT 1. - The instant appeal has been filed on behalf of the appellant - Thakara Ram and Naga Ram challenging the judgment dated 1.4.2009 passed by the learned Special Judge (N.D.P.S.) Cases, Jodhpur in Sessions Case No. 152/2006 convicting and sentencing both the appellants as under:- OFFENCE SENTENCE Under Section 8/15 of the N.D.P.S. Act Ten years' R.1. and to pay a fine of one lac each and in default of payment of fine to further undergo one year's additional R.l. 2. Briefly stated the facts necessary for the disposal of this appeal are that Bhanwar Lal (PW-2), the S.H.O., Police Station Siwana is alleged to have received a source information on 29.7.2006 that the appellants herein would be carrying contraband poppy straw in an Indigo vehicle bearing registration No. RJ-19-2C 5994. The source also informed that these accused would be escorted by S.S. Sodha, Vishna Ram, Roopa Ram and Dhanna Ram in an unnumbered Indica Vehicle. On this, the S.H.O. put up a blockade at the Ludrada Road. On 29.7.2006 at about 10 A.M., an unnumbered Indica vehicle was seen coming. It was stopped and on its search being made,. four persons named Roopa Ram, S.S. Sodha, Vishna Ram and Dhanna Ram were found sitting therein. As soon as the vehicle was stopped, all the four persons sitting in the Indica vehicle tried to run away. Dhanna Ram was apprehended on the spot whilst the others managed to escape. In the meantime, the Indigo vehicle bearing registration No. RJ-19-2C 5994 was also seen coming. The police party stopped the said vehicle. On the search of the vehicle being made, appellants Thakara Ram and Naga Ram were found sitting in the vehicle. On enquiry, they revealed that they were carrying gunny bags full of poppy straw in the vehicle. Nine gunny bags lying in the vehicle's dickey were taken out. The accused could not give any explanation for being possession of the illicit poppy straw nor they could provide any permit etc. for the same. Accordingly, the accused were apprehended. The nine gunny bags full of poppy straw were seized and on weighment, the total weight of the contraband was found to be 158 kg. Two samples each weighing 500 gms were taken out from each of the bags and a total of eighteen samples packets were prepared and sealed. for the same. Accordingly, the accused were apprehended. The nine gunny bags full of poppy straw were seized and on weighment, the total weight of the contraband was found to be 158 kg. Two samples each weighing 500 gms were taken out from each of the bags and a total of eighteen samples packets were prepared and sealed. The main samples were marked as A-01 to A-09 whilst the control samples were marked as B-01 to B-09. Fie remaining bags were sealed in the same gunny bags in which it was being carried and were marked as C-01 to C-09. 3. The accused were arrested. The contraband was seized. The S.H.O. prepared a seizure memo Ex.P-2 and other relevant documents and thereafter proceeded to the Police Station Siwana. After reaching the Police Station, he registered an F.I.R. No. 85/2006 for the offences under Sections 8/15 and 29 of the N.D.P.S. Act. The samples as well as the mudda maal (material object) were deposited with the Poonma Ram, the Malkhana Incharge. The investigation of the case was then handed over to the Inspector Udai Singh. At the conclusion of the investigation, a charge-sheet was filed against the accused Thakara Ram, Naga Ram, Dhanna Ram, Sujan Singh and Vishna Ram for the offences under Sections 8/15 and 29 of the N.D.P.S. Act. 4. The learned trial Judge framed charges against accused Thakara Ram and Naga Ram for the offence under Section 8/15 of the N.D.P.S. Act whilst the remaining three accused namely Dhanna Ram, Sujan Singh and Vishna Ram were charged for the offence under Section 29 of the N.D.P.S. Act. The accused Roopa Ram could not be apprehended and was declared absconding. 5. The accused pleaded not guilty and claimed trial. The prosecution examined 17 witnesses in support of its case. The appellants in their statements under Section 313 Cr.P.C. denied the allegations of the prosecution and examined two witnesses in defence. 6. The learned trial Judge at the conclusion of the trial proceeded to acquit the three co-accused Dhanna Ram, Sujan Singh @ S.S. Sodha and Vishna Ram from the charges. The appellants were held guilty of the offence under Section 8/15 of the N.D.P.S. Act and were convicted and sentenced as stated above. Hence, this appeal has been filed on their behalf challenging their conviction and sentences. 7. The appellants were held guilty of the offence under Section 8/15 of the N.D.P.S. Act and were convicted and sentenced as stated above. Hence, this appeal has been filed on their behalf challenging their conviction and sentences. 7. Learned counsel Shri Ravindra Acharya appearing on behalf of the appellants challenged the conviction of the appellants on a solitary ground. He submitted that the prosecution did not produce the original Mudda Maal (material object) in the Court and, thus, the learned trial Judge has committed a grave error in holding that the appellants were apprehended whilst plying 158 kg of contraband poppy straw. He submitted that as per the seizure memo Ex.P-2 and the testimony of the Seizure Officer Shri Bhanwar Lal (PW-2), the S.H.O., Police Station Siwana, the contraband poppy straw was repacked in the same gunny bags after taking out the samples and, thereafter, identifying chits bearing Marks C-01 to C-09 were appended/affixed on the nine gunny bags. Learned counsel for the appellants referred to Page No. 4 of the testimony of the Seizure Officer Bhanwar Lal (PW-2) and urged that when the S.H.O. testified before the learned Trial Court, he exhibited nine gunny bags in the Court claiming them to be the mudda maal of this case. None of the gunny bags was having any identifying chits appended thereupon when they were brought in the Court. Referring to the statement of the Seizure Officer Bhanwar Lal (PW-2), the learned counsel for the appellants argued that the Seizure Officer admitted that the gunny bags exhibited by him in the Court did not bear any mark/identifying chits. Learned counsel thus submitted that the prosecution has failed to prove by material evidence that 158 kg of contraband poppy straw was recovered from the appellants. Learned counsel for the appellants placed reliance on the decision rendered by the Hon'ble Apex Court in the case of Jitendra & Anr. v. State of M.P., reported in AIR 2003 SC 4236 and the decision rendered by the Hon'ble Single Bench of this Court in the case of Babulal & Ors. Learned counsel for the appellants placed reliance on the decision rendered by the Hon'ble Apex Court in the case of Jitendra & Anr. v. State of M.P., reported in AIR 2003 SC 4236 and the decision rendered by the Hon'ble Single Bench of this Court in the case of Babulal & Ors. v. State of Rajasthan, reported in 2008(2) Cr.L.R. (Raj.) 1508 in support of the above argument and urged that the facts of the case at hand are identical with the decision in Babulal's case (supra) and prayed that the instant appeal deserves to be allowed and the appellants are entitled to be acquitted on account of non compliance of the provisions of Section 55 of the N.D.P.S. Act. 8. Per contra, learned Public Prosecutor opposed the submissions advanced by the learned counsel for the appellants. He submitted that the Seizure Officer in his deposition before the learned Trial Court has proved the recovery of 158 kg of contraband poppy straw by exhibiting the recovered gunny bags containing poppy straw in the Court. Learned Public Prosecutor further submitted that the identifying chits and the seals were kept secured separately with the Malkhana Incharge and were separately exhibited by the S.H.O. Learned Public Prosecutor thus urged that the prosecution duly proved the fact regarding 158 kg of contraband poppy straw having been recovered from the car occupied by the appellants. He thus prayed that the appellants' conviction in this case is not liable to be interfered with. 9. Heard and considered the arguments advanced by learned counsel for the parties, perused the judgment impugned as well as the record. 10. The Hon'ble Apex Court has conclusively held in the case of Jitendra & Anr. (supra) that the prosecution has to physically prove the recovery of the contraband by producing the mudda maal (material object) at the trial. It goes without saying that the mudda maal obviously can only be proved by exhibiting the original recovered articles in an identifiable state. In the case at hand, the prosecution attempted to physically prove the mudda maal during the evidence of the Seizure Officer Bhanwar Lal (PW-2). It goes without saying that the mudda maal obviously can only be proved by exhibiting the original recovered articles in an identifiable state. In the case at hand, the prosecution attempted to physically prove the mudda maal during the evidence of the Seizure Officer Bhanwar Lal (PW-2). The relevant lines of his deposition are quoted hereunder:- " ckn tkWap lSEiy vkfVZdy&01 rk 09] dUV~ksy lSEiy vkfVZdy&01 rk 18] otg lcwr vkfVZdy&19 rk 27] gS ftu ij , ls ch esjs] lh ls Mh o bZ ls ,Q eksrfcjku] th ls ,p rk ds ls ,y eqyfteku ds gLrk{kj gS vkSj ,Dl LFkku ij uewuk lhyk vafdr gSA cjkenk eksckbZy vkfV~dy&28 o 29 gSA gkftj vnkyr isdsV vkfVZdy&19 rk 27 ij psik yxk gqvk ugha gS vkSj u gh eqdnek uacj vafdr gSA lhy piMh ls lhyeksgj fd;k gqvk gS psik QVus ds Mj ls vyx ls eky[kkuk izHkkjh ds ikl j[kk gqvk gS tks vkt lkFk ysdj vk;k gwWa vkSj psik bZ ,Dl ih&31 rk 39 rd gS bu psiksa ij dze la[;k fy[kh gqbZ gS vkSj cksjksa ij dze la[;k fy[kh gqbZ gS ftlls psiksa dk feyku cksjksa ls fd;k tk ldsA " " cksjs ij ekdZ lh&fy[kk gqvk ugha gS dsoy ek= v{kj 01 rk 09 vafdr gSA " 11. From a careful perusal of the aforesaid portion of the deposition of the Seizure Officer, it is evident that when the Seizure Officer was examined in chief, he attempted to justify that the nine gunny bags produced by him in the Court was the mudda maal (material object) of this case. Upon cross-examination, he admitted that the mudda maal (material object) marks as article No. 19 to 27 in the Court was not having any identifying chits appended thereto. No case number was mentioned on the gunny bags. The Seizure Officer deposed that he took out two samples of 500 gms from each of the nine bags and the remaining contraband was repacked in the same gunny bags and they were marked as C-01 to C-09. In the cross-examination, he admitted that the identifying marks C-01 to C-09 were not visible on the gunny bags exhibited in the Court. The gunny bags were plainly marked as 01 to 09. 12. In the cross-examination, he admitted that the identifying marks C-01 to C-09 were not visible on the gunny bags exhibited in the Court. The gunny bags were plainly marked as 01 to 09. 12. The purpose of exhibiting he original mudda maal at the trial is to precisely prove by physical evidence that contraband claimed to be seized in the case was actually recovered. The purpose of exhibiting the articles is obviously to link and identify the exhibited mudda maal with the seizure documents. It goes without saying that in order to achieve this end, the distinct marks of identification bearing the signatures of the Seizure Officer, the motbirs and the accused as well as the case number must be scribed on the exhibited mudda maal (material object) so that the Court can record a satisfaction that the mudda maal exhibited before it is the same which was allegedly seized in the case. The provisions of Section 55 of the N.D.P.S. Act have been enacted in order to achieve this objective. 13. The Seizure Officer contrived to claim that the chits appended to the gunny bags were separated for the purpose of ensuring their safety. The moment the chits appended on the bags are removed or separated from the mudda maal (material object), the very purpose of appending the chits was defeated and the Court would be left with no option but to assume that the seized articles were tampered. If at all the sanctity of the seized article was to be maintained, then, it was essential that the identifying chits should have been affixed or fastened to the article in such a manner than there is no possibility of tampering with the same. 14. The moment the Seizure Officer removed the chits and separated them from the original packing and brought them to Court separately, the very sanctity of the act of appending the chits on the original packings was defeated.It has to be presumed that when the Seizure Officer removed the chits from the original packings, the credibility of the prosecution theory regarding the exhibited articles being the same which were seized from the accused was compromised. 15. The moment, a charge-sheet is filed the mudda maal assumes the character of the case property and any alteration in its physical state or attributes is impermissible. 16. 15. The moment, a charge-sheet is filed the mudda maal assumes the character of the case property and any alteration in its physical state or attributes is impermissible. 16. The matter needs consideration from the angle whether the claim made by the Seizure Officer in his cross-examination that the chits were taken off from the gunny bags and were placed separately in the Malkhana is true or is a concocted version. For this purpose, the testimony of the Malkhana Incharge needs to be examined. 17. The Malkhana Incharge Poonma Ram was examined as prosecution witness No. 6. He did not state in his testimony that any chits affixed on the seized contraband were handed over to him for being kept separately in safe custody in the Malkhana. The Malkhana Register Ex.P-23-A does not bear any such recital. 18. Therefore, it is apparent that either the recording made by the Seizure Officer in the seizure memo that he affixed identifying chits C-01 to C-09 bearing the signatures of himself, the accused and the motbirs on the seized gunny bags after taking out the samples is incorrect. If not then, by removing the chits from the gunny bags, the Seizure Officer tampered with the seized articles, thereby, destroying the sanctity of the seized articles. As a matter of fact, the removal of the chits from the bags of seized contraband amounts to tampering with the property which was custodia legis. 19. The co-ordinate Bench of this Court whilst considering almost a similar scenario in the case of Babulal (supra) held as under:- "7. Next comes the recovery, which is said to be of 1765 kgms. vide Ex.P-7 in 59 bags, out of which 51 were gunny bags and 8 were plastic bags. These bags were deposited in the Malkhana vide Ex.P-27 in which the total quantity of poppy straw had also been shown to be 1765 kgms. In the recovery memo, it is stated that 2 kg. of poppy straw was taken out and sealed for chemical examination, but these 2 kgms. samples have been shown separately at item Nos. 2 and 3 in Column No. 6 of the Malkhana register vide Ex.P-27. In this regard, the Malkhana Incharge, Ganpatlal, PW-10 has stated that he received only two samples and not separate samples from all the 59 bags. samples have been shown separately at item Nos. 2 and 3 in Column No. 6 of the Malkhana register vide Ex.P-27. In this regard, the Malkhana Incharge, Ganpatlal, PW-10 has stated that he received only two samples and not separate samples from all the 59 bags. He has not said anything about the weight of the 59 bags, except that he has proved the entry of these Malkhana articles in the Malkhana register Ex.P-27, copy of which is Ex.P-27-A. That apart, Anil Joshi, Recovery Officer, who has been examined as PW-13, was cross-examined on this point in which he stated that he put chit on all the 59 bags but did not seal them. When the 59 bags were shown to him, he said that there was no chit on them. He has further stated that he did not mark `A', `B', `C' on the bags but he had put the serial number. During examination in chief, he stated that he marked 1 to 59 on the bags by putting a chit and seal and obtained the signatures of the motbirs, accused and of himself, whereas when the articles were shown to him, there was no such seal, chit or signatures on it. In such a situation of the recovered articles i.e. 59 bags, it is not proved that the recovered articles are same as were produced in the Court. There is a serious infirmity to arrive at a conclusion as to whether the produced Malkhana articles were the same, which were recovered vide Ex.P-7. This negative presumption can safely be drawn against the prosecution by not getting the Malkhana articles identified in the Court in a proper manner i.e. with the seal chit and signatures of motbirs and of accused and of the Recovery Officer." The Hon'ble Apex Court considered this issue exhaustively in the case of Noor Aga v. State of Punjab & Anr., reported in AIR 2009 SC (Supp) 852 and observed as under:- "Non Production of Physical Evidence 111. The prosecution alleged that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes and were recovered from the appellant at Raja Sansi Airport. Essential key items necessary to prove the same were: "(i) The cardboard carbon allegedly used for carrying the heroin to test the veracity. (ii) The bulk, which establishes the quantity recovered. The prosecution alleged that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes and were recovered from the appellant at Raja Sansi Airport. Essential key items necessary to prove the same were: "(i) The cardboard carbon allegedly used for carrying the heroin to test the veracity. (ii) The bulk, which establishes the quantity recovered. (iii) The three homogenous samples of five grams each taken from the bulk amount of heroin, which would be essential in ascertaining whether the substances that the accused was allegedly in possession of was, in fact, heroin." 112. Indisputably, the cardboard carton was not produced in Court being allegedly missing. No convincing explanation was rendered in that behalf. The High Court, in its judgment, stated: "The case set up by the prosecution is that the appellant being a member of a crew party, was in possession of his luggage, which included the cardboard carton, from which the recovery of heroin was allegedly effected. The appellant himself had presented the said carton along with the other luggage for custom clearance. From these facts, at least one thing is clear that the carton which was carrying the contraband, was under his immediate control. The argument advanced by Mr. Guglani is that the luggage which was being carried by the crew members, had no specific identification slips as in the case of an ordinary passenger travelling in an aircraft. So what was being carried in the carton was within the knowledge of the appellant alone and, therefore, the element of possession and control of the contraband qua the appellant is writ large and the presumption of culpable mental state under Sections 35 and 54 of the Act has to be drawn against him." 113. The inference was drawn only on the basis of a mere assertion of the witness that the cardboard carton wherefrom the contraband was allegedly recovered as the one which had been in possession of the appellant without any corroboration as regards the purported "apparent practice of crew members carrying their own luggage" and there being no identification marks on the same. No material in this behalf has been produced by the respondent. No witness has spoken of the purported practice. For all intent and purport another presumption has been raised by the High Court where for no material had been brought on record. No material in this behalf has been produced by the respondent. No witness has spoken of the purported practice. For all intent and purport another presumption has been raised by the High Court where for no material had been brought on record. No explanation has been given as to what happened to the container. Its absence significantly undermines the case of the prosecution. It reduces the evidentiary value of the statements made by the witnesses referring the fact of recovery of the contraband therefrom. 120. 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(l-B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. What was necessary was a certificate envisaged under Section 110(l-B) of the 1962 Act. An order was required to be passed under the aforementioned 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 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 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." 121. Sub-section of Section 52-A of the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason where for 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 1872) 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 respect of such offence." 122. Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction. 130. Physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct. Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction. 130. 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 of the prosecution's endeavour to prove the fact of possession of contraband from the appellant. 131. This aspect of the matter has been considered by this Court in Jitendra v. State of U.P., (2004) 10 SCC 562 , in the following terms: "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 the 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. 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 a stringent sentence as under the N.D.P.S. Act." 20. In view of the above discussion, all that can be held established from the testimony of the Seizure Officer and the other prosecution witnesses is that 18 packets of samples weighing 500 gms each which were exhibited in the Court as articles 1 to 18 were recovered from the accused. The recovery of 158 kg of poppy straw from the accused has to be discarded in view of the fact that the prosecution tampered with the recovered goods by removing the chits appended on the bags containing the contraband. 21. Resultantly, the conviction of the accused for the offence under Section 8/15 of the N.D.P.S. Act for having been found in possession of commercial quantity of poppy straw (158 kgs) cannot be sustained. The accused at best can be held guilty for having been found in possession of 9 kg of poppy straw (the 18 samples of 500 gms each exhibited in Court). 22. The accused at best can be held guilty for having been found in possession of 9 kg of poppy straw (the 18 samples of 500 gms each exhibited in Court). 22. As per the Schedule appended to the N.D.P.S. Act, poppy straw weighing up to 50 kg is kept in the category of non commercial quantity. A person being found in possession of poppy straw below the commercial quantity would be guilty of the offence under Section 8/15(b) of the N.D.P.S. which is punishable with rigorous imprisonment for a term which may extended to ten years and a fine which may extend to rupees one lac. 23. The upshot of the above discussion is that the instant appeal deserves to be allowed in part. The conviction of the appellants for the offence under Section 8/15 of the N.D.P.S. Act is altered to the offence under Section 8/15(b) of the N.D.P.S. Act. The appellant Thakara Ram was granted parole in this case and he absconded. Pursuant to his arrest, he is in custody and till date is reported to have suffered imprisonment of three years. The appellant Naga Ram continues to be in custody for the last nearly seven years. In view of the aforesaid fact, both the appellants are sentenced to four years' R.I. for the offence under 8/15(b) of the N.D.P.S. Act. In addition to the substantive sentences, a fine of rupees one lac is imposed on appellant Thakara Ram whilst a fine of rupees fifty thousand is imposed on appellant Naga Ram. In default of payment of fine, the appellant Thakara Ram shall undergo one year's R.1. whilst the appellant Naga Ram shall undergo six months' R.1.Appeal partly allowed. *******