JUDGMENT : B.S. Walia, J. 1. Appeal against acquittal has been filed against judgment dated 10.02.2015 whereby the learned Principal Sessions Judge, Jammu in case (File No. 105/Spl. Challan) titled 'State v. Naresh Kumar' acquitted the respondent of the offences punishable under Sections 8/21/22 NDPS Act in FIR No. 149/2010 of Police Station Akhnoor, District Jammu. Prayer in the instant Appeal is for setting aside the impugned judgment and for convicting the respondent. Vide order dated 20.11.2015, leave to file appeal against judgment dated 10.02.2015 whereby the respondent had been acquitted of the charges under sections 8/21/22 NDPS Act was granted and Registry was directed to list the main appeal in due course. 2. Today, we have heard Mr. Rakesh Khajuria, learned AAG and perused the record but for the reasons recorded hereunder are of the considered view that there is no merit in the appeal, therefore, the same is liable to be dismissed. 3. Prosecution case in brief is that on 06.07.2010, 105 Capsules of Parvan Spas were recovered from the possession of respondent at Muthi, Tehsil Akhnoor whereupon the respondent was arrested in FIR No. 149/2010 of Police Station, Akhnoor. On conclusion of the investigation, Investigating Officer finding the respondent guilty of offences under Sections 8/21/22 NDPS Act filed challan against the respondent. 4. In his evidence, P.W.-3/Kuldeep Raj in cross-examination deposed that he had not seen the seized Capsules in Court on the day of his cross-examination and that the Capsules were brown in colour. 5. P.W.-4/Rakesh Kumar stated that the Capsules were recovered from the possession of the respondent by P.W.-3/Kuldeep Raj and he had prepared the seizure memo. In his cross-examination, he also admitted that he had not seen the seized Capsules in Court on the day of his cross-examination. 6. P.W.-5/Rohit Koul deposed that he had chemically examined the seized Capsules and submitted his report EXT-P/4. 7. Infirmities in the case are glaring. The prosecution failed to examine the Investigating Officer. The drugs allegedly seized from the possession of the respondent were not produced before the Trial Court. Besides there is no evidence to show as to how the substance in question was disposed of or as to why it had not been produced before the Court. Infirmities in the case are glaring. The prosecution failed to examine the Investigating Officer. The drugs allegedly seized from the possession of the respondent were not produced before the Trial Court. Besides there is no evidence to show as to how the substance in question was disposed of or as to why it had not been produced before the Court. Besides, not only did the witnesses contradict each other on the colour of the Capsules but also with regard to the person who had searched the respondent and recovered Capsules from him as well as mode of transport used by the witnesses to come to the Naka. The omissions and contradictions cast serious doubt on the truthfulness of the witnesses examined by the complainant and make the case set up by the prosecution doubtful. Failure of the prosecution to examine the Investigating Officer, resulted in prejudice being caused to the respondent in his defence. Thus, the prosecution failed to prove the guilt of the respondent beyond reasonable doubt. 8. Learned counsel for the appellant could not explain the failure of production of the seized Capsules before the Trial Court as also the non-examination of the Investigating Officer, nor could explain the contradictions in the evidence of the prosecution witnesses vis-a-vis colour of the capsules recovered from the respondent as also with regard to the person who had searched the respondent and recovered the Capsules from the possession of the respondent as also with regard to mode of transport used by the witnesses to come to the Naka. The aforementioned omissions and contradictions make the case set up by the prosecution highly doubtful besides cast doubt on the truthfulness of the witnesses examined by the prosecution. It stands well settled by a catena of judgments of the Hon'ble Supreme Court that physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct and non-production thereof would entail drawing of a negative inference in terms of Section 114(g) of the Evidence Act. 9. We are of the view that on account of the stringent punishment prescribed under the NDPS Act, it was necessary for the prosecution to establish that the alleged quantity of Parvan Spas Capsules were actually seized from the possession of the respondent. 9. We are of the view that on account of the stringent punishment prescribed under the NDPS Act, it was necessary for the prosecution to establish that the alleged quantity of Parvan Spas Capsules were actually seized from the possession of the respondent. However, in view of the best evidence i.e. Parvan Spas Capsules as were seized not having been produced before the Trial Court and marked as material object besides there being no explanation for failure to produce the same, mere oral evidence as to the features of the seized Parvan Spas Capsules and production of Panchnama did not discharge the heavy burden which lay on the prosecution. In the circumstances it can safely be concluded that in view of the seized drugs not having been produced before the Trial Court and no explanation having been rendered by the prosecution for its non-production, there is no evidence to connect the forensic report EXT-P/4 with the substance that was seized from the possession of the respondent. 10. In 'Jitendra and Anr. v. State of M.P.' reported as (2004) 10 SCC 562 , the Hon'ble Supreme Court was pleased to hold: "5. The evidence to prove that charas and ganja were recovered from the possession of the 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 (P.W. 7), Angad Singh (P.W. 8) and Sub-Inspector D.J. Rai (P.W. 6), there is no independent witness as to the recovery of the drugs from the possession of the 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 them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced". The High Court relied on Section 465 Cr.P.C. to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. 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 panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." 11. Similar preposition was reiterated by the Hon'ble Supreme Court in 'Ashok alias Dangra Jaiswal v. State of Madhya Pradesh' reported as (2011) 2 SCC (Cri.) 547 by relying on the decision in Jitendra and Anr. v. State of M.P. (Supra). Relevant extract of the same is reproduced hereunder; 12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused. 13. It may be noted here that in Jitendera and another v. State of M.P., (2004) 10 SCC 562 , on similar facts this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra (supra), the Court observed and held as under:- XXX Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." 14. The decision in Jitendra (supra) applies to the facts of this case with full force. 15. We, accordingly, hold that the appellant is entitled to the benefit of doubt and acquit him of the charges and set aside the judgments and orders passed by the trial court and the High Court. 12. Likewise in Vijay Jain v. State of M.P., (2013) 14 SCC 527 , at page 531 the Hon'ble Supreme Court was pleased to hold: 10. 12. Likewise in Vijay Jain v. State of M.P., (2013) 14 SCC 527 , at page 531 the Hon'ble Supreme Court was pleased to hold: 10. On the other hand, on a reading of this Court's judgment in Jitendra CASE, 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 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. In view of the position noted above, we find that the judgment of acquittal does not warrant any interference. Resultantly, appeal being bereft of merits is dismissed. However, no order as to costs.