JUDGMENT : Pankaj Bhandari, J. Appellants Ajaruddin, Alam Khan and Izrial @ Lala have preferred separate appeals aggrieved by judgment and order dated 20.03.2013 passed by Additional Sessions Judge No.1 Deeg, District Bharatpur in Sessions Case No. 21/2012 whereby the trial Court has convicted the appellant Ajaruddin and Izrail under Section 8/15 of the NDPS Act and Alam Khan under Section 29 of the NDPS Act and has imposed sentence of 10 years rigorous imprisonment and fine of Rs. 1 lac on non-payment of fine to further undergo one year rigorous imprisonment to each of the accused appellant. 2. Appellant, Suresh Kumar has preferred appeal aggrieved by judgment and order dated 23.07.2014 passed by Additional Sessions Judge No.1 Deeg, District Bharatpur in Sessions case No. 81/2012 (original case No. 21/2012) whereby appellant Suresh Kumar has been convicted under Section 8/25 of the NDPS Act and the Court has imposed sentence of 10 years rigorous imprisonment and fine of Rs. 1 lac and on non payment of fine, the appellant, Suresh Kumar is directed to undergo one year rigorous imprisonment. 3. Briefly stated the facts of the case are that truck canter bearing Registration No. HR-56-A-1161 was stopped by the police at Sikri Road on 20.11.2011 and 40 bags of poppy husk was seized, each bag is stated to be containing 20 kg of poppy husk, they were mixed at the spot. Sample and control sample of 1 kg each was prepared after mixing the contents of 40 bags of poppy husk. 4. The main thrust of argument of the counsel for the appellant is that the 40 bags of poppy husk sample and control sample were not produced in Court and non production thereof, has prejudiced the accused-appellants and conviction cannot be sustained. 5. The other limb of argument of counsel for the appellants is that sample Mark B was sent to the FSL but as to where the sample was kept is not made out. It is contended that from perusal of the Malkhana Register it is revealed that there is no entery of sample Mark B in the Malkhana Register on 20.11.2011 hence FSL report pertaining to sample B cannot be made a basis for convicting the accused-appellants. 6. It is contended that from perusal of the Malkhana Register it is revealed that there is no entery of sample Mark B in the Malkhana Register on 20.11.2011 hence FSL report pertaining to sample B cannot be made a basis for convicting the accused-appellants. 6. It is also contended that samples ought to have been drawn from each bag separately and then they should have been sent to the FSL for establishing that each of the bag was containing poppy husk. 7. It is also contended that personal search of appellants, Ajaruddin and Izrial was conducted by PW-10, Manohar Lal, who gave an option to the accused to get themselves searched from the Magistrate, Gazetted Officer or himself which is not in accordance with the NDPS Act. 8. Counsel for Suresh Kumar has urged that Suresh Kumar is the owner of the vehicle and he was not aware that the vehicle was being used for carrying contraband and there is no evidence to the effect that the appellant was aware of the use of his vehicle for carrying contraband. 9. Counsel for the appellants have placed reliance on Jitendra and Anr. v. State of M.P., 2004 SCC(Cri) 2028 wherein the Apex Court has held that the prosecution is required to produce the best evidence available with it. Non-production of seized material is not a procedural irregularity and is fatal to the prosecution case. The Court gave benefit of doubt to the appellants in that case. 10. Reliance has also been placed on "Jora Ram v. State of Rajasthan" S.B. Criminal Appeal No. 37/2010 decided by Rajasthan High Court on 19.02.2014, wherein the High Court relying upon the decision of the Apex Court held that non-production of the mudda mal and the sample during trial goes to the root of the matter and leads to an inference that the prosecution has failed to prove by physical evidence that any contraband was actually recovered from the accused. 11. Reliance has also been placed on Hanuwant Sing v. State of Rajasthan 2016 (3) CrLR(Raj.) 1102, wherein 215 kg of poppy husk was recovered from 5 bags, Seizure Officer collected 100 grams of poppy husk from each bag and mixed the collected contents and thereafter, prepared two samples. Rajasthan High Court held that the preparation of sample was not proper. The seized mudda mal was not produced and exhibited during evidence. Rajasthan High Court held that the preparation of sample was not proper. The seized mudda mal was not produced and exhibited during evidence. Rajasthan High Court held that conviction cannot be sustained. 12. Reliance has also been placed on Vijay Jain v. state of Madhya Pradesh, (2013) 14 SCC 527 , wherein the Apex Court held that it is necessary for the prosecution to establish that contraband substance was seized from the accused. Mere oral evidence to establish seizure is not sufficient and best way to prove the seizure is to produce the contraband before the trial Court. The Court acquitted the appellants, as there was no explanation for non-production of the mudda mal before the Court. 13. Counsel for the appellants has also placed reliance on 1994 CrLG (1) Valsala v. State of Kerala, 1994 CrLJ 1 : 1993 CrLR (SC) 33 wherein there was no evidence to show that the articles were sealed and kept in proper custody in the police station. The conviction order was set aside by the Apex Court. 14. Reliance has also been placed on "State of Rajasthan v. Tara Singh" 2011 AIR SCW 6651, wherein the prosecution was unable to explain where the sample had been stored or when it was dispatched or received by laboratory. The Apex Court held that the sanctity of sample was not proved and the accused was entitled to acquittal. 15. Shamsher Singh & Ors. v. State of Rajasthan, 2005(2) CrLR(Raj.) 1482, was a case wherein the prosecution failed to prove that contraband material was kept in sealed condition in malkhana. The contraband material recovered was not produced in the Court. High Court held that the accused was entitled to an acquittal. 16. Learned Public Prosecutor has contended that 800 kg of poppy husk has been recovered from the accused appellant, the same is commercial quantity and leniency should not be adopted in such matters. 17. It is contended that the seized articles were kept in the malkhana which is evident from perusal of Ex. P-4A. There was evidence to the effect that the canter was stopped and 40 bags of poppy husk were recovered from the canter. 18. 17. It is contended that the seized articles were kept in the malkhana which is evident from perusal of Ex. P-4A. There was evidence to the effect that the canter was stopped and 40 bags of poppy husk were recovered from the canter. 18. It is also contended that from FSL report it is evident that the seized articles were found to be containing chief constituents of opium, it is argued that the seized samples were found intact by the FSL and, therefore, the Court below has not committed any illegality in relying upon the FSL report and convicting the appellants on the basis of the FSL report. 19. I have considered the contentions and perused the record of the case and the evidence adduced by the prosecution and defence. 20. The fact that 40 bags of poppy husk were not produced before the Court is not disputed, as to why they were not produced, there is no justification given by any of the prosecution witnesses. It is also not disputed that the samples drawn by the prosecution have also not been produced before the Court. 21. In the Malkhana Register produced as Ex. P-4A there is a mention of deposit of 40 bags of poppy husk marked as C1 to C40, deposit of one packet sample Mark A, vehicle Eicher HR-56- A-1161. In the Malkhana Register, it is also mentioned that bag sample Mark A was deposited in FSL on 07.12.2011. The receipt of FSL mentions of letter No. 25319/20 dated 05.12.2011 and refers to one sealed bag. This letter No. 25319/20 dated 05.12.2011 has also been produced by the prosecution before the trial Court. The sample which was received by FSL was packet Mark B whereas as per the malkhana register packet Mark A was sent from the malkhana to the FSL. If packet Mark B was not deposited in the malkhana on 20.11.2011 then as to where it remained is not ascertainable from the evidence adduced on behalf of the prosecution. Non-production of the poppy husk bags and the samples has thus caused prejudice to the accused. 22. The Court below has relied on oral evidence to come to the conclusion that 40 bags of poppy husk were recovered from appellants Ajaruddin and Izrail and has convicted the appellants on the ground that there is no evidence that appellants have been falsely implicated. 23. 22. The Court below has relied on oral evidence to come to the conclusion that 40 bags of poppy husk were recovered from appellants Ajaruddin and Izrail and has convicted the appellants on the ground that there is no evidence that appellants have been falsely implicated. 23. It is settled position of law that mudda mal in self same condition is required to be produced in Court and non production thereof is fatal to the prosecution. Not drawing samples from each bag and resorting to mixing the bags and drawing sample and control sample from the mixture is not the correct procedure to be adopted by the prosecuting agency. 24. Non-production of the mudda mal, non-production of the sample in Court, non deposit of sample Mark B in the malkhana non-explanation as to where sample Mark B remained from 20.11.2011 to 07.12.2011 are infirmities which go to the root of the case and the order and the judgment of conviction and sentence passed by the Court thus cannot be sustained. 25. The appeals preferred by the appellants are allowed the judgment and sentence dated 20.03.2013 and 23.07.2014 are quashed and set aside. 26. Appellant Ajaruddin be set at liberty forthwith if not required in any other case and the bail bonds of appellants Alam Khan, Izrial and Suresh Kumar stand cancelled. Appellants are required to comply with Section 437 A Cr.P.C. and submit personal bond and surety to the tune of Rs.50,000/- each before the Court below within a period of two months from today to the effect that they would appear before the Supreme Court as and when the Supreme Court issue notices in respect of any appeal or petition filed against this judgment. Record of the trial Court be returned forthwith.