JUDGMENT: 1. The instant Appeal has been directed against the judgment and order dated 06.01.2018 passed by the learned Judge, Special Court under NDPS Act, Nagpur in Special Criminal Case No.10/2014 convicting the appellants of the offence punishable under Section 20 read with Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”) and sentencing them to suffer RI for three years and to pay a fine of Rs. 10,000/- each, in default, to further suffer SI for three months. 2. The prosecution case in brief is that, complainant-API Santosh Shegaonkar (PW5) was attached to Police Station Narkhed on 10.10.2013. When he was on patrol duty along with his staff in the jurisdiction of Police Station, Narkhed, in a private vehicle, at Belona, he found one person (accused No.1) carrying a bunch of green leaves over his head. Those green leaves were like leaves of marigold flowers. The complainant suspected some foul-play and, therefore, he made enquiry with that person about those leaves. On this, accused no.1 threw the bunch on the road and fled away. The complainant stopped one person who was passing through the road and made enquiry with him. The said person told his name as Jaipal Rathod (PW3). The complainant made enquiry about the person who fled away. PW3 informed the complainant that the name of that person was Baldeosingh Sengar (accused no.1). The complainant suspected that those leaves must be of the contraband ganja therefore, he informed the said fact to PSI-Gotmare of Police Station, Narkhed. The complainant then called for two. Panchas. He issued a written intimation letter to the panchas as well as to the photographer. In the meantime, PSI-Gotmare reached the place of the incident. He recorded the spot-cum-seizure panchnama of those leaves (Exh.7). On weighing those leaves, he found it to be 23.300 kg. The complainant then separated one plant from those leaves and sealed it. The weight of the same was 300 gms. The sample was sent to the Chemical Analyser for analysis. The complainant then recorded the detailed. panchnama. On the next day, the complainant arrested accused no.1-Baldeosingh. It is the case of the prosecution that on 12.10.2013, accused no.1 Baldeosingh showed his willingness to point out the place where he had brought those cannabis plants. The accused no.1 brought the Police and Panchas to the field of accused no.2-Ishwarsingh. The complainant then recorded the detailed. panchnama. On the next day, the complainant arrested accused no.1-Baldeosingh. It is the case of the prosecution that on 12.10.2013, accused no.1 Baldeosingh showed his willingness to point out the place where he had brought those cannabis plants. The accused no.1 brought the Police and Panchas to the field of accused no.2-Ishwarsingh. In the said field some ganja plants which were in dry condition, were found. Those dried ganja plants were taken charge by the complainant in the presence of panchas and accordingly seizure panchnama was prepared (Exh.38). The complainant then collected the 7/12 extract in respect of the agricultural field (Exh.39). The C.A. report in respect of the ganja plants was collected by the complainant. The complainant then informed PSI Gotmare about the incident (Exh.32). The offence was registered vide C.R. No. 3058/2013. The statements of the witnesses were recorded. After completion of investigation, the chargesheet came to be filed in the Special Court; charge was framed; trial was conducted. On analysis of the evidence on record and after hearing both sides, the learned Judge, Special Court convicted the appellants, as aforesaid. 3. I have heard Shri A.K.Bhangde, learned Advocate for the appellants; and Shri H.D. Dubey, learned APP for the respondent-State. With their assistance I have carefully gone through the record of the case. The learned Advocate for the appellants strenuously argued that the mandatory provisions of Sections 52-A, 55 and 57 of the NDPS Act have not been complied with by the investigating agency. He further submitted that no nexus has been established by the prosecution between accused no.1 and the contraband article. He further submitted that the prosecution has also failed to establish any nexus between accused no.1-Baldeosingh and accused no.2-Ishwarsingh. It was further submitted that the prosecution has failed to prove that the field in which ganja plants were allegedly cultivated was owned by accused no.2-Ishwarsingh. Finally, he submitted that the accused persons have been falsely implicated in the present case and the learned trial Judge has failed to analyze the evidence in its right perspective. 4. As against this, learned APP supported the impugned judgment and order and contended that the learned trial Judge has rightly assessed the evidence led by the prosecution and has convicted the appellants. 5. In order to substantiate its case, the prosecution has relied upon the testimony of PW1 to PW6. 4. As against this, learned APP supported the impugned judgment and order and contended that the learned trial Judge has rightly assessed the evidence led by the prosecution and has convicted the appellants. 5. In order to substantiate its case, the prosecution has relied upon the testimony of PW1 to PW6. PW1-Vijay Tiwari is the panch witness in whose presence the bundle of leaves was allegedly taken charge; PW2-Tukaram Kunghadkar is the head constable who carried to the contraband article to the CA office; PW3-Jaipal Rathod is the witness who had given information about the name of accused no.1; PW 4-Datta Mali is the Chemical Analyzer, PW5-API Santosh Shegaonkar is the Investigating officer; whereas PW6-Ujjwal Thombre, is the panch witness in whose presence the ganja plants were seized from the field of accused no.2-Ishwar. 6. The evidence of PW1-Vijay Tiwari shows that on 10.10.2013 he along with the police staff was on patrol duty in a private vehicle and he was driving the said vehicle. In the evening, the police party was proceeding from Belona, Pilapur Road to Gaimukh village. While they were on a patrol duty, one person was found carrying bunch of leaves on his head. The police stopped the said person. At that time, one Jaipal Rathod was passing through the said road. Accused no.1-Baldeosingh fled away by throwing the said bunch of leaves on the road. The police took smell of those leaves and suspected that those leaves were of ganja plant. Another panch Jaipal Rathod (PW3) informed the police that the person who flew away was accused no.1 Baldeosingh. PW1 then weighed the said bundle and found the weight of the bundle at 23.300 kgs. Seizure panchnama was recorded (Exh.7). It was admitted by PW1 that those leaves were like a zendu plant. He however denied that said bunch was found in a thrown condition on the road. PW1-Tiwari admitted that the police did not catch hold of that person. PW1 failed to state whether the police informed about the seizure to their superior officer. The testimony of PW1 shows that from PW3-Jaipal, PW1 came to know the name of accused no.1. It further shows that the accused no.1 was not apprehended at the place of the incident. The testimony of PW1 also makes it clear that PW1 had not informed about the said incident to his superior officer/s as per the requirement. 7. The testimony of PW1 shows that from PW3-Jaipal, PW1 came to know the name of accused no.1. It further shows that the accused no.1 was not apprehended at the place of the incident. The testimony of PW1 also makes it clear that PW1 had not informed about the said incident to his superior officer/s as per the requirement. 7. The testimony of PW3 Jaipal Rathod demonstrates that he was called by police at Belora road to act as a panch witness. He was coming from his agricultural field. On the road there were leaves like marigold (zandu) and the police were standing nearby the leaves. PW3 categorically stated that he did not know as to who left those leaves at that place. According to him, the police took charge of those leaves and weighed those leaves; the weight was about 23 to 24 kgs. The police then recorded the seizure panchnama (Exh.7). PW3-Jaipal fairly admitted in his cross-examination that those leaves were found on the ground unattended. Significantly, PW3 did not name the accused no.1. PW 3 did not even identify the accused no.1 before the Court as the same person who fled away after throwing the bunch of leaves on the road. PW3 even did not whisper about the fact that he had informed the name of the accused no.1 to the police. Thus, there is no link between testimony of PW1-Vijay Tiwari and PW3- Jaipal Rathod, in so far as the identity of accused no.1 is concerned. Pertinently, the police did not confirm the identity of accused no.1 as the person who fled away after throwing the bundle of leaves on the road. Thus, the testimony of PW1-Vijay makes it clear that the bunch of leaves was not seized by the police from the conscious possession of accused no.1. Similarly, PW1-Vijay did not state that those leaves were of ganja plant. It would be worthwhile to note that even the sample of those leaves was not shown to PW1 during the course of trial. 8. In order to show that from the field of accused no.2-Ishwarsingh the ganja plants were seized by the police, the prosecution has examined PW6-Ujjwal Thombre, who is the panch witness on the point of seizure. Unfortunately, PW6 did not support the prosecution case and he was declared as a hostile witness. According to PW6-Ujjwal, the police obtained his signature on the documents. Unfortunately, PW6 did not support the prosecution case and he was declared as a hostile witness. According to PW6-Ujjwal, the police obtained his signature on the documents. However the police did not read over as to what was written in the said documents. He stated that police called him in the agricultural field. A photographer snapped few photographs and therefore he is visible in the photographs. PW6 stated that he did not remember as to what was seized by the police in his presence. Even after cross-examination by learned APP, no fruitful purpose was served. PW6 fairly admitted that he does not know as to who was the owner of the field. He denied that the accused showed ganja plants in the agricultural field. Thus, the panch witness, in whose presence ganja plants were taken charge from the agricultural field allegedly belonging to accused no.2-Ishwarsingh, did not support the case of the prosecution. 9. The prosecution examined PW5-API-Santosh Shegaonkar, the Investigating Officer, who was complainant in this case. According to PW5-Santosh on 10.10.2013 when he was on patrol duty in the jurisdiction of Police Station Narkhed, he found one person near village Belona with a bunch of green leaves on his head. On making enquiry with the said person, he threw the bunch and fled away. PW1 asked one person who was passing by the road, as to who was the said person who fled away. From the said person i.e. PW3, he came to know the name of accused no.1 as Baldeonsingh. PW5 suspected that those leaves might be of ganja plants. He called for two panchas and in the presence of those persons he recorded the spot-cum-seizure panchnama. He weighed those plants and found the weight of leaves to be 23.300 kg. He separated one plant weighing 300 gms. PW5 informed to the PSI about the said incident vide Exh.32. He then registered the office. He snapped the photographs of the bunch of leaves. PW5 then handed over the seized muddemal to the muddemal moharir. On 11.10.2013, PW5 arrested accused no.1- Baldeosingh. He sent the seized sample to CA office for its analysis. One Dinesh Rajput (not examined) deposited the muddemal in the malkhana. On 12.10.2013, accused no.1-Baldeosingh disclosed that his agricultural field is adjacent to the field of accused no.2-Ishwarsingh at Belona. PW5 then handed over the seized muddemal to the muddemal moharir. On 11.10.2013, PW5 arrested accused no.1- Baldeosingh. He sent the seized sample to CA office for its analysis. One Dinesh Rajput (not examined) deposited the muddemal in the malkhana. On 12.10.2013, accused no.1-Baldeosingh disclosed that his agricultural field is adjacent to the field of accused no.2-Ishwarsingh at Belona. He further stated that he along with Ishwarsingh sown ganja plants in the field of Ishwarsingh. Accused no.1 showed his willingness to point out the said agricultural field where ganja plants were planted. PW5 along with panchas and the accused went to the field of Ishwarsingh (accused no.2) where they saw ganja plants. The photographer snapped photographs of some of the ganja plants, and some of the plants were found to be in a dried condition, those plants were taken charge by PW5 and sealed in the presence of Panchas and thereafter they returned to the police station along with the accused. Panchnama was recorded at Exh.38. PW5 admitted in the cross-examination that he had not chased the Baldeosingh (accused no.1) who threw the bunch of leaves. PW5 stated that the driver of the vehicle was used as a panch witness. Significantly, PW1 who was driving the vehicle was used as a panch witness by PW5. PW 5 has not made any efforts to search for any other witness to act as a pancha from the said village. The testimony of PW5, who is the Investigating officer, in no manner shows that he has followed the mandatory provisions under the NDPS Act. Even PW5 has not stated as to in what manner the articles were sealed by him. In fact, the panch witness PW6-Ujjwal Thombre has not supported the case of the prosecution. In that case, it was incumbent on the part of PW5 to elaborate the manner in which the sealing was done at the place of the incident. However PW5 has not deposed as to in what manner sealing was done to the articles. Similarly, it is not clear from the evidence of PW5 whether resealing of the ganja leaves was done by the officer who was incharge of the Police station, as per the provisions of Section 55 of the NDPS Act, which contemplates as under :- “55. Similarly, it is not clear from the evidence of PW5 whether resealing of the ganja leaves was done by the officer who was incharge of the Police station, as per the provisions of Section 55 of the NDPS Act, which contemplates as under :- “55. Police to take charge of articles seized and delivered:- An officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” This Court noticed that no provisions under section 55 of the NDPS Act were complied with by the investigating agency. No officer-in-charge of the Police Station was examined by the investigating agency. There is no evidence on record to show that the officer in-charge of the Police Station had affixed his seal on the articles or to the sample. Similarly, the testimony of PW5-API Santosh Shegaonkar, in no way indicates that the provisions of section 57 of the NDPS Act were followed. Section 57 reads thus: “57. Report of arrest and seizure : Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all particulars of such arrest of seizure to his immediate official superior.” Thus, in the instant case, there is no report under section 57 was made by PW 5-Santosh within 48 hours to the superior officer. 10. Exh.18 is the examination report in respect of the leaves which were seized. Two plants with roots with earth, stem, greenish brownish leaves and stalks, wrapped in paper, were sent to the CA office. On analysis, the cannabis sativa-L was detected. The article was identified as cannabis Sativa-L on the basis of morphological and anatomical characteristics. The result of the detection of cannabis constituents from the extract of the exhibit were found to be positive and it was found that those articles were falling under sec. On analysis, the cannabis sativa-L was detected. The article was identified as cannabis Sativa-L on the basis of morphological and anatomical characteristics. The result of the detection of cannabis constituents from the extract of the exhibit were found to be positive and it was found that those articles were falling under sec. 2(iv) of NDPS Act. Similarly, the CA report (Exh.19) reveals that three plants with roots with earth stem and greenish brownish leaves were sent to the CA office. The article was identified as cannabis sativa-L on the basis of morphological and anatomical characteristics and the result of detection of cannabis constituents from the the extract of the exhibit were positive. It was found that those articles were falling under section 2 (iv) of NDPS Act. Thus, the CA reports were found to be positive so far as detection of ganja plants is concerned. Thus, no doubt, ganja was detected in the bundle of leaves which was taken charge by the police, allegedly from accused no.1, which was thrown by him on the road. So also ganja leaves were found in the field which was allegedly belonging to accused no.2-Ishwarsingh. However the prosecution has miserably failed to prove that the ganja leaves which were allegedly thrown on the road were thrown by accused no.1-Baldeosingh inasmuch as the identity of the accused no.1 has not been established by the prosecution. The prosecution has also failed to prove that the ganja plants which were found in the agricultural field that field was owned by accused no.2. Significantly, the 7/12 extract shows the owner of the field as one Smt. Yamunabai Dakursingh Gaur. The said 7/12 extract nowhere shows the name of accused no.2-Ishwarsingh either as a owner or as a cultivator of the agricultural field. Even the presence of accused no.2-Ishwarsingh at the place where the seizure panchnama. (Exh.38) was drawn, has not been established by the prosecution. 12. It is worthwhile to note that the prosecution has also not followed the provisions under sections 52, 52A of NDPS Act. Section 52A mandates the preparation of inventory and certification thereof by the Magistrate. In the present case, no inventory is prepared by the Investigating Officer of the articles and also it is not placed on record. 12. It is worthwhile to note that the prosecution has also not followed the provisions under sections 52, 52A of NDPS Act. Section 52A mandates the preparation of inventory and certification thereof by the Magistrate. In the present case, no inventory is prepared by the Investigating Officer of the articles and also it is not placed on record. The list of articles which were produced in the Court indicates that the entire property which was seized by the investigating agency was not produced before the court. It appears that the entire property was not produced before the court by the Investigating agency. So also there is no identification of the entire property by the witnesses in the court. 13. In the case of Alakh Ram vs. State of U.P., reported in 2004 SCC (Cri) 363, it was held that it must be proved that the accused had cultivated the prohibited plant voluntarily and in a substantial quantity. The plants sprouted naturally do not amount to cultivation. Thus, in the instant case, it is not clear from the evidence of PW5-API Santosh as to how many plants were taken charge by the investigating agency. Furthermore, it is not proved that the land from which the ganja plants were taken charge belongs exclusively to accused no.2-Ishwarsingh and he had exclusive right over the said property and those plants were voluntarily cultivated by him. 15. In the case of State of Rajasthan v. Gurmail Singh reported in 2005 SCC (Cri) 641, it is held that though the seized articles claimed to have been kept in Malkahana, however the Malkhana register was not produced in support thereof. Similarly, no sample of seal was sent along with the sample to the Excise Laboratory for comparing with the seal appearing on the sample bottles and thus there was no evidence to prove that the seals found were the same as were put on the sample bottles immediately after the seizure of the contraband. It was held by the Hon’ble Apex Court that the link evidence adduced by the prosecution is not satisfactory and ultimately the accused was acquitted. 16. In the instant case also, there is no satisfactory evidence on record to show that the seized articles were kept in the malkhana by PW5-API-Santosh. It was held by the Hon’ble Apex Court that the link evidence adduced by the prosecution is not satisfactory and ultimately the accused was acquitted. 16. In the instant case also, there is no satisfactory evidence on record to show that the seized articles were kept in the malkhana by PW5-API-Santosh. He failed to produce the malkhana register in order to prove that those articles were kept in malkhana till they sent to the CA office.Thus, this Court is of the view that the mandatory provisions under the NDPS Act have not been followed by the investigating agency. The learned trial Judge should have considered all these aspects of the matter in its right perspective. With the result, the Appeal needs to be allowed. Hence the following order:- ORDER (i) Criminal Appeal No. 12/2018 is allowed. (ii) The impugned judgment and order of conviction and sentence dated 6th January, 2018 passed by the learned Judge, special Court under NDPS Act, Nagpur in Special Criminal Case No.10/2014 is hereby quashed and set aside. (Iii) The appellants are on bail. Their bail bonds shall stand cancelled.