JUDGMENT : Mr. Hemant Gupta, J.:- The present appeal arises out of the judgment of conviction and order of sentence dated 24.02.2011 rendered by the Special Court, Rupnagar, whereby the appellant was convicted for an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of 14 years and to pay a fine of Rs.1,50,000/-. In the event of default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of one year. 2. On 22.12.2008 at about 10.00 AM, Balwinder Kumar, Superintendent, NCB, Chandigarh, a Gazetted Officer, informed the Zonal Director, NCB, Chandigarh, vide Ex.P6, in respect of receiving of a secret information to the effect that one person namely Pardeep, medium built, half bald, aged about 35 years, resident of Village Kasol, District Kullu, Himachal Pradesh is involved in drug trafficking and is going to deliver a consignment of charas to a person at the entry gate of Ropar Bus Stand on 22.12.2008 in between 1400 hrs. to 1500 hrs. and that Pradeep will be wearing mongia colour trouser having a bag in his hand on which ‘Dus No. Bidi’ is written. Pursuant to such information, the Zonal Director directed to constitute a party for apprehension of the person alongwith contraband. Thereafter, the team headed by Balwinder Kumar, Superintendent, after associating two independent witnesses namely Kala Ram and Kartar Singh, reached at the spot i.e. ISBT Ropar at about 1.00 PM. At about 3.00 PM, one person having a bag in his right hand on which ‘Dus No. Biri’ was written and was waiting for someone, was seen near the ISBT Ropar entry gate. Since the information received tallied with the said person, the team headed by Balwinder Kumar, Superintendent surrounded him. After introducing himself and other team members, Balwinder Kumar, Superintendent asked the name and address of that person. Upon which, he disclosed his identity as Pardeep Kumar son of Bahadur Singh, resident of Village & PO Kasol, District Kullu (HP). Balwinder Kumar told Pardeep Kumar that they have information about his involvement in Charas trafficking and that they want to search his bag. He also apprised Pardeep Kumar about his legal rights to be searched before the Magistrate or Gazetted Officer. Balwinder Kumar told Pardeep Kumar that they have information about his involvement in Charas trafficking and that they want to search his bag. He also apprised Pardeep Kumar about his legal rights to be searched before the Magistrate or Gazetted Officer. In reply, Pardeep Kumar told him that any member of the team can take the search of his bag. However, when Balwinder Kumar offered himself, members of his team and both the independent witnesses to take search of the bag, Pardeep Kumar refused for the same. Thereafter, Balwinder Kumar served a notice (Ex.P8) under Section 50 of the Act and apprised the accused of his rights and sought his option for search either in the presence of a Gazetted Officer or a Magistrate. Pursuant to such notice, the appellant disclosed his consent that he has nothing and anybody can take search of his bag. Balwinder Kumar also served notices Exs.P9 & P10 to the independent witnesses. At the spot itself, Balwinder Kumar directed him to open the bag. On opening the bag, brown colour substance like finger and roll type was found. On testing with the help of drug detection kit, the substance was found positive for Charas. On weighment, the whole substance came to be 15 Kgs. Two samples of 25 grams each were separated. The remaining substance was put in a small cloth bag. After stitching the cloth bag having the remaining substance, the same was sealed with four seals of the Narcotic Control Bureau-06 and marked as Lot – A. Similarly, both the samples were converted into parcels after putting into plastic packets and then in two white coloured envelopes. Both the envelopes were sealed with four seals of Narcotic Control Bureau. The samples were marked as A-1 & A-2. All the parcels were signed by Balwinder Kumar, Superintendent; accused Pardeep Kumar and independent witnesses namely Kartar Singh and Kala Ram. 3. On the same day, pursuant to a notice (Ex.P13) under Section 67 of the Act, the appellant made a statement (Ex.P14) disclosing that the bag was given to him by Mehar Chand resident of Village Kasol for handing it over to one person, who was to meet him at ISBT Ropar at about 2.45 PM. He further disclosed that Mehar Chand had told about his description to that person telephonically and in lieu of this, he had to get Rs.15,000/- as commission. He further disclosed that Mehar Chand had told about his description to that person telephonically and in lieu of this, he had to get Rs.15,000/- as commission. He disclosed that he was carrying this article for the first time and that he has one Dhaba and small hotel at Kasol. 4. Thereafter, after explaining the grounds of his arrest, the appellant was arrested at about 10.00 PM on the same day i.e. 22.12.2008 vide arrest memo Ex.P16. On the next day i.e. 23.12.2008, after medically examining the appellant at Government Hospital, Ropar, he was produced before the Chief Judicial Magistrate/Duty Magistrate, Ropar vide application Ex.P19. The application (Ex.P19) seeking judicial remand reads as under: “Sub: Application for Judicial Remand Sir, Most respectfully showeth: 1. Pardeep Kumar s/o Sh. Bahadur Singh, resident of Village Kasol, District Kullu, Himachal Pradesh was arrested by the Superintendent of Narcotics Control Bureau, Chandigarh on 22.12.2008 at the entry gate of Ropar Bus Stand, Ropar, Punjab for possession of 15 Kgs. charas (Hashish) concealed in a bag on which ‘Dus No. Biri’ was written. 2. That the accused person Pradeep Kumar was tendered voluntary statement wherein he has admitted the manner and factum of the above said recovery. 3. That the accused person has committed an offence u/s 8 & 20 of the NDPS Act, 1985 by way of the possession & transportation of Charas (Hashish) and has been put under arrest on 22.12.2008 after informing him, the grounds of his arrest. 4. That the sample alongwith test memo in duplicate is to be sent to the Chemical Examiner for examination. Since the investigation in this case is in preliminary stage, it is therefore prayed that the accused Pardeep Kumar may kindly be remanded to Judicial Custody w.e.f. 23.12.2008. Yours faithfully, Sd/- (Balwinder Kumar) Superintendent Narcotics Control Bureau Chandigarh.” 5. The sample of the contraband allegedly recovered from the appellant was sent for chemical examination, which was received in the office of Central Revenue Control Laboratory, New Delhi on 24.12.2008. As per the report of the Central Revenue Control Laboratory, New Delhi (Ex.P21), the sample under reference is charas. 6. After completion of investigation, complaint (Ex.P4) was filed by Hardesh Kumar, Intelligence Officer, NCB. In the said complaint, Saji Mohan, Zonal Director, NCB, Chandigarh was said to be empowered officer and that secret information was received by Balwinder Kumar, Superintendent. 7. 6. After completion of investigation, complaint (Ex.P4) was filed by Hardesh Kumar, Intelligence Officer, NCB. In the said complaint, Saji Mohan, Zonal Director, NCB, Chandigarh was said to be empowered officer and that secret information was received by Balwinder Kumar, Superintendent. 7. It may be stated that Saji Mohan, Zonal Director, NCB and Balwinder Kumar, Superintendent stand convicted and sentenced for the offence punishable under Section 21(C) & 29 of the Act vide judgment of conviction and order of sentence dated 08.03.2013 and 11.03.2013 respectively rendered by the Additional Sessions Judge, Chandigarh. The appeals filed by Saji Mohan and Balwinder Kumar i.e. CRA-D-375-DB- 2013 and CRA-D-410-DB-2013 respectively were also dismissed by this Court on 02.03.2015. 8. To prove its case, the prosecution has examined PW-1 Hardesh Kumar, Intelligence Officer, NCB, Chandigarh; PW-2 Balwinder Kumar, Superintendent, NCB, Chandigarh; PW-3 Kartar Singh, an independent witness and PW-4 C-Ramesh Kumar, NCB, Chandigarh. 9. While appearing in the witness-box, PW-1 Hardesh Kumar, Intelligence Officer, NCB, Chandigarh deposed that on 23.12.2008, Balwinder Kumar, Superintendent gave him a letter alongwith one test memo in duplicate and one sample marked as A-1 to deposit the same in the office of the Chemical Examiner, Central Revenue Control Laboratory, New Delhi. He deposed that he deposited the sample with the concerned Laboratory on 24.12.2008. In his cross-examination, he stated that the godown, where they kept the samples, is within the premises of the office of NCB at Chandigarh and that the register is maintained by the Incharge of the godown. He further stated that Balwinder Kumar did not take out the sample in his presence from the godown and that the sample and the letter were lying with Balwinder Kumar, when the same was handed over to him. He stated that the complaint Ex.P4 was handed over to him after typing the same by the office and after signing the same, he filed the same and that he is not conversant with the contents of the complaint. He admitted that Balwinder Kumar is facing the trial under the Corruption Act and the former Director Saji Mohan is facing trial under the NDPS Act. 10. PW-2 Balwinder Kumar, while appearing in the witness-box under judicial custody, has deposed with regard to the receipt of secret information; holding of a naka as well as the recovery of contraband from the appellant. 10. PW-2 Balwinder Kumar, while appearing in the witness-box under judicial custody, has deposed with regard to the receipt of secret information; holding of a naka as well as the recovery of contraband from the appellant. In his cross-examination, he stated that the village of two independent witnesses joined in this case is about 25 to 30 KMs from their office. He further stated that both the independent witnesses are daily wage employee in their Department and they are being paid wages by the Department. He further stated that the independent witnesses were present in the office at that time. He stated that the office of the Magistrate, Gazetted Officer, Tehsildar and SDM is about 200 yards from the Bus Stand and that Office of G.M., Roadways, is also at a distance of 10 to 15 yards from the Bus Stand. He further stated that they did not try to join the aforesaid officers at the time of search and that they also did not try to join independent witness from the Bus Stand. 11. PW-3 Kartar Singh, the so-called attesting witness, in his crossexamination , stated that Saji Mohan used to call him whenever he needed and that he worked as driver for his car 3-4 times. He further stated that NCB used to pay him, whenever he worked for them. He also admitted that other independent witness namely Kala is witness in other cases, which have been lodged by NCB. 12. After conclusion of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. He was put all the incriminating circumstances appearing against him in the prosecution evidence. He denied the prosecution case and pleaded false implication. In his defence, the accused examined DW-1 Tehal Singh. 13. After going through the evidence on record, the learned trial Court found that the prosecution has succeeded in proving the charge against the appellant and accordingly convicted and sentenced them, as mentioned above. 14. Before this Court, learned counsel for the appellant has vehemently argued that the contraband allegedly recovered from the appellant was not produced before the Judicial Magistrate, as required under Section 52 of the Act. The samples taken out from the recovered contraband were also not produced before the Judicial Magistrate. 14. Before this Court, learned counsel for the appellant has vehemently argued that the contraband allegedly recovered from the appellant was not produced before the Judicial Magistrate, as required under Section 52 of the Act. The samples taken out from the recovered contraband were also not produced before the Judicial Magistrate. The reliance was placed on the Supreme Court judgment reported as Vijay Jain v. State of M.P., [2013(5) Law Herald (SC) 4212] : (2013) 14 SCC 527 . The Court noticed the purpose of production of the contraband before magistrate and also the consequences thereof. It held as: “10. On the other hand, on a reading of this Court’s judgment in Jitendra Vs. State of M.P. (2004) 10 SCC 562 , we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok Vs. State of M.P. (2011) 5 SCC 123 this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.” 15. On the other hand, Mr. D.D.Sharma argued that even though no specific mention of the contraband and the samples being produced before the Judicial Magistrate was made, but in fact the same were produced before the Magistrate. 16. In view of the arguments raised by Mr. On the other hand, Mr. D.D.Sharma argued that even though no specific mention of the contraband and the samples being produced before the Judicial Magistrate was made, but in fact the same were produced before the Magistrate. 16. In view of the arguments raised by Mr. D.D.Sharma, the Narcotic Control Bureau was called upon to produce the recovered contraband and samples to find out; as to whether the contraband and the samples were produced before the Judicial Magistrate which can be made out from the signatures thereon. The record of the trial Court containing application (Ex.P19) seeking judicial remand does not show that the contraband or the samples were produced before it. PW-2 Balwinder Kumar, Superintendent while appearing for further examination on 23.12.2009, has deposed that he has seen the case property and proved Lot-A as Ex.PC and the samples as Exs.PA and PB and that all the material is intact with the seals and signed by the witnesses alongwith the accused. However, his statement that the contraband and the samples were produced before the Magistrate on 23.12.2008 is not borne out either from the application seeking judicial remand or from the order passed thereon. 17. Today, Mr. Sharma pointed out that the contraband has been disposed of on 06.09.2012 at M/s Rainbow Environments, Village Baliyali, Mohali by the Drug Disposal Committee under the Chairmanship of Shri B.B.Mishra, Deputy Director General (NR), NCB, New Delhi. The record produced by Mr. Sharma shows that a communication has been sent from the I.O. Legal NCB, Chandigarh to Jail Superintendent, Punjab Police, Rupnagar, Punjab seeking custody certificate of the accused on 27.02.2013. It shows that the prosecution was aware of the pending appeal. Learned Special Judge in its judgment dated 23.02.2011 has ordered that the case property be disposed of after the period of appeal/revision, if any. Admittedly, the contraband has been disposed of even though the appeal was filed within the period of limitation. 18. Mr. Sharma points out that the contraband has been disposed of in view of the noting of an Officer to the effect that ‘no appeal is pending in the High Court’. Such noting is on a photocopy of the judgment, which is neither signed nor dated. 18. Mr. Sharma points out that the contraband has been disposed of in view of the noting of an Officer to the effect that ‘no appeal is pending in the High Court’. Such noting is on a photocopy of the judgment, which is neither signed nor dated. Since the alleged contraband recovered from the appellant has been disposed of even when his appeal was pending and when the contraband and the samples are not proved to be produced before the Judicial Magistrate, we find that the prosecution has miserably failed to prove the alleged recovery of charas from the appellant. 19. It may also be noticed that two so-called independent witnesses namely Kala Ram and Kartar Singh are the employees of the Narcotic Control Bureau. Still further, the accused was apprehended at about 3.00 PM on the basis of secret information received at about 10.00 AM. The prosecution has enough opportunity to associate the Gazetted Officer from the nearby offices or other independent witnesses, when the recovery was from a bus-stand rather introducing the stock witnesses. In these circumstances, we find that the prosecution has miserably failed to prove the recovery of contraband from the appellant. 20. Consequently, we deem it appropriate to grant benefit of doubt to the appellant and acquit him of the charges leveled against him. 21. Having granted benefit of doubt to the appellant, we find that disposal of the contraband even when appeal was pending on the basis of a note, which is neither signed nor dated, shows serious infraction of the provisions of Chapter XXXIV of the Code of Criminal Procedure. Mr. Sharma seeks some time to address arguments on this question. 22. List on 07.08.2015. 23. Original file produced by Mr. Sharma is kept on the record of the High Court. ---------0.B.S.0------------ —————————