JUDGMENT & ORDER : Mr. Pankaj Bhandari, J. 1. Appellant has preferred this appeal aggrieved by judgment and sentence dated 08.06.2010 passed by Special Judge, NDPS Cases, Chhabra Distt. Baran in Sessions Case No. 10/2008, whereby the appellant has been convicted for offence under Section 8/18 of the NDPS Act and sentence of 10 year R.I. has been imposed along with fine of Rs.1,00,000/- and in default of payment of fine, appellant is required to under go further one year R.I. 2. Factual matrix of the case are that on 18.11.2007, complainant, Ramniwas Gurjar, S.H.O. lodged a written report against the appellant stating therein that on regular patrolling, Ramniwas Gurjar was seen carrying two bags and on seeing Police Party, he tried to run away but was apprehended and 8 Kg and 100 gm of opium was recovered from him. The Police after completion of investigation submitted charge-sheet under Section 8/18 of the NDPS Act against the appellant. 3. On behalf of the prosecution as many as 7 witnesses were examined and 14 documents were exhibited. After examining the accused under Section 313 of Cr.P.C. and hearing the arguments, the trial Court convicted the accused-appellant for offence under Section 8/18 of the NDPS Act. Aggrieved by which the present appeal has been preferred. 4. It is contended by counsel for the appellant that the Police Party had prior information and the same was not recorded as per Section 42 of the Act and copy of it was not sent to the Senior Officer as per Sub-clause 2 of Section 42 of the Act. It is also contended that the muddamal and control samples were not produced in Court and non-production of the same has caused serious prejudice to the appellant. 5. It is also contended that there are no independent witnesses to the search proceedings and as Police witnesses are interested witnesses, conviction on their sole testimony cannot be upheld. It is also contended that the sample A-1 and B-1 were of 50 gms each but when they were received by the FSL, the weight of each packet was 26.62 gm and 26.87 gm respectively along with weight of the polythene bag. It is also contended that there is noncompliance of Section 50 as original notice which was recovered from the possession of the appellant-accused was not produced in Court. 6. Learned Public Prosecutor has opposed the criminal appeal. It is also contended that there is noncompliance of Section 50 as original notice which was recovered from the possession of the appellant-accused was not produced in Court. 6. Learned Public Prosecutor has opposed the criminal appeal. His contention is that accused has been apprehended with commercial quantity of opium, the information was received while party was on patrol duty and, therefore, it was not possible to note down the secret information and intimate the Senior Officer as per the provision of Section 42 of the Act. 7. It is also contended that there was no enmity between raiding party and the appellant and the Court below has not committed any illegality in convicting the accused-appellant. 8. I have considered the contentions put forth by the counsel for the parties. 9. PW-5, Ramniwas is the Officer who has lodged the F.I.R. In his cross-examination, he has admitted that in Ex.P-2 in portion marked ‘E’ to ‘F’, it was mentioned that there was secret information about the accused carrying contraband. He has admitted that in spite of having the secret information, he did not inform Senior Officer. 10. PW-4, Ajeet Singh a member of the team has also admitted in his cross-examination that in Ex.P-2, there is a mention about there being secret information of accused having psychotropic substance. 11. No explanation has been given by Ramniwas PW-5 as to when the secret information was received, why it was not noted down and why information was not furnished to the Senior Officers in accordance with Sub-clause (2) of Section 42 of the Act. 12. The other major lacuna in the prosecution case is non production of the muddamal in self same condition before the court and non-production of the control samples before the Court. Non-production of muddamal has been viewed as a serious infirmity in the prosecution case and has been considered as fatal to the prosecution by the Apex Court. 13. 12. The other major lacuna in the prosecution case is non production of the muddamal in self same condition before the court and non-production of the control samples before the Court. Non-production of muddamal has been viewed as a serious infirmity in the prosecution case and has been considered as fatal to the prosecution by the Apex Court. 13. This Court in “Jaipal Singh v. State” 2016(3) Criminal Law Reporter(Raj.) 1590 dealt with cases where muddamal was not produced in the Court in self same condition and relying on the judgment of the Apex Court in “Kalu Ram v. State of Rajasthan” S.B. Criminal Appeal No.356/2015 decided on 17.03.2016, “Ashok @ Dangra Jaiswal v. State of M.P.” AIR 2011 SC 1335 and “Vijay Jain v. State of M.P. (2013) 14 SCC 527 and of Rajasthan High Court in “Sahiram v. State of Rajasthan” (S.B. Criminal Appeal No. 774/2015) decided on 07.04.2016 came to the conclusion that non-production of muddamal before the Court is fatal to the prosecution and it was observed that it is for the prosecution to produce the material seized before the Court and non-production of the material entitles the accused to acquittal as the accused is deprived of his valuable right and serious prejudice is caused to him due to non-production of the seized material. 14. It is further important to note that the Police has not made any efforts to procure independent witnesses when the place from which the recovery has been effected is a place where there are many shops and persons are residing nearby. PW-5 in his cross-examination has admitted that few houses were located nearby. Non-production of independent witnesses also casts a serious doubt on the prosecution case. PW-5 regarding deposit of Namuna ‘C’, has admitted that he has not deposited the Namuna ‘C’. PW-5 in his cross-examination has also admitted that material was not resealed in the Police Station and the namuna ‘C’ was also not deposited in the malkhana. 15. The fact that the sample which was taken from the site was 50 gm and the sample which reached FSL was weighing less than 27 gm each. The sample was sent in polythene bag and loss of moisture to the extent of half of the weight of the sample casts doubt as to whether sample reached the FSL in intact position. The sample was sent in polythene bag and loss of moisture to the extent of half of the weight of the sample casts doubt as to whether sample reached the FSL in intact position. The other infirmity in the prosecution case is non-production of the original notice given to the appellant under Section 50 of the Act. 16. As per PW-5, the original notice given to the appellant under Section 50 of the Act was recovered from the appellant. There was no reason why the same was not exhibited before the Court. 17. The Court below has not dealt with the objection regarding non-production of the seized material before the Court. With regard to summoning of independent witnesses, the Court below has given benefit to the prosecution on the ground that independent witnesses refused to become witnesses as they were afraid of the appellant. This plea cannot be entertained as the Police Officer has powers to summon a witness and to take action against him if he refuses to become an independent witness. 18. Taking note of the fact that there was prior secret information to the Police and the Police has not complied with the provision of Section 42 of the Act and has failed to produce muddamal in Court in self same condition, the judgment and order of conviction cannot be sustained. 19. In view of the above, the appeal is allowed. The judgment and conviction order dated 08.06.2010 is quashed and set aside. Appellant be released forthwith if not wanted in any other case. 20. Record of the trial Court be returned forthwith. 21. Accused is directed to comply with Section 437-A and submit personal bond of Rs.50,000/- and one surety of like amount to the satisfaction of the trial Court to the effect that he shall appear before the Supreme Court as and when Supreme Court issues notice in respect of any appeal or petition filed against this judgment.