JUDGMENT : (Prayer: Criminal Appeal filed under Section 374(ii) of Criminal Procedure Code, against the judgment dated 25.05.2012 in C.C.No.52 of 2005 on the file of the learned Principal Special Judge, Special Court under EC & NDPS Act, Chennai and to set aside the same.) 1. This Criminal Appeal has been filed against the judgment and conviction made by the learned Principal Special Judge, Special Court under EC & NDPS Act, Chennai by judgment dated 25.05.2012 made in C.C.No.52 of 2005, 2. The case of the prosecution is that, on 15.02.2004, at 3.30 a.m. the secret information received from the informant by the P.W.2, Sub Inspector of Police attached with respondent police station was recorded under Ex.P3. The information that the two accused persons were bringing the contraband (ganja) to a multi story building within the jurisdiction of the respondent police in a blue black colour Tata Sumo car without number plate, having been reduced into writing, was placed before the P.W.6, Investigating Officer, who, at 3. 45 a.m. on seeing the said written information, has given permission to the P.W.2 and police party to rush to the spot and do the needful. 3. Accordingly, the police team headed by P.W.2, started leaving the police station at 4.00 a.m. and reached the spot around 4.30 a.m., when they mounted surveillance at Cementry Road and Club House Road, they found blue black colour Tata Sumo car was passing through, which was intercepted by the police team where, apart from the driver, another person was sitting. According to the prosecution, in that car, there is a plastic bag and the police team introduced themselves to the two persons travelling in that car and stated that, they had received secret information accordingly, the police team wanted to search the two persons and in this regard it is claimed by the prosecution that, the right of the accused persons under the NDPS Act to be searched, if they desire, in front of the nearest Judicial Magistrate or Gazetted Officer, was informed to the two accused persons. 4. However, it was claimed by the prosecution that, the two persons wanted the P.W.2, Sub Inspector Of Police to search them. Accordingly, on search, it was found that, in that plastic bag there was ganja which was immediately weighed and they found that, it contains 2 Kgs. and 100 grams. 4. However, it was claimed by the prosecution that, the two persons wanted the P.W.2, Sub Inspector Of Police to search them. Accordingly, on search, it was found that, in that plastic bag there was ganja which was immediately weighed and they found that, it contains 2 Kgs. and 100 grams. Thereafter, under the seizure mahazar, since they wanted to seize the said contraband and as there was no independent witnesses available, the police party, i.e., P.W.3 and another police constable stood as witness, in whose presence, the contraband were seized 5. Thereafter, after issuance of arrest memo both the persons who travelled in the car had been arrested and since the car was plied without number plate, the car was also seized under mahazar in front of the very same witnesses and the contraband as well as the car seized from the accused persons, with both the accused were brought to the police station at about 7.15 a.m. where, after having registered the FIR, a special report was prepared by P.W.2 and with that special report, the arrested accused persons with contraband, had been handed over to the P.W.6, Investigating Officer. 6. The Investigating Officer, after having enquired the accused as well as the witnesses, had sent the accused persons to the concerned Magistrate Court for remand. Accordingly, they have been remanded to judicial custody. Also it was claimed by the prosecution that, on the same day, at the same time, along with accused persons, the contraband seized had also been sent to the Magistrate Court under Form No.95 and the same was produced before the learned Magistrate. 7. Thereafter, the two 50 grms. sample taken from the contraband had been sent for chemical analysis as per the requisition i.e., Ex.P14 and Ex.P1. Thereafter, the chemical analysis report Ex.P2 was received from the forensic science laboratory. Thereafter, the P.W.1, the technical man from the Forensic Science Department had been enquired and after completing the investigation, since the chemical analyst report discloses that, the sample sent by the prosecution consisting of ganja i.e., cannabis, the accused have committed the offence punishable under Section 8(c) r/w 20(b)(ii)(B) & 29 of NDPS Act, accordingly, the P.W.6 filed the charge sheet before the Trial Court. 8. Before the Trial Court, on behalf of the prosecution, six witnesses i.e., P.W.1 to P.W.6 were examined and 15 exhibits i.e., Exs.P1 to P15 were marked. 8. Before the Trial Court, on behalf of the prosecution, six witnesses i.e., P.W.1 to P.W.6 were examined and 15 exhibits i.e., Exs.P1 to P15 were marked. Three material objects i.e., M.O.1 to M.O.3 were produced by the prosecution. After having tried the case, the Trial Court has ultimately found the accused guilty for the offence punishable under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act, accordingly, the Trial Court by the judgment impugned dated 25.05.2012 has convicted the accused persons and sentenced them for nine months rigorous imprisonment for both the accused and also imposed a fine of Rs.5,000/- in default to undergo further one month rigorous imprisonment to each of the accused persons. However, the Trial Court has acquitted the two accused persons from the charge under Section 8(c) r/w 29 of NDPS Act. As against the said conviction and sentence imposed against the accused persons, both the accused preferred this Criminal appeal. 9. Mr. G.S. Magesh, learned counsel appearing for the appellant/accused has raised the ground that, the prosecution has not followed Section 42 (i) of the NDPS Act and also Section 52(A) of the NDPS Act has been violated. He raised further ground that, the contraband allegedly seized from the accused had not been produced immediately before the Magistrate Court under Form 95, nor the same had been produced immediately before the Trial Court, instead, since it was claimed by the prosecution that, the contraband had been kept by the prosecution at the police station itself, there had been no vouch or record to show that the entire contraband had been kept in safe custody. He also raised the ground that, though the occurrence allegedly taken place on 15.02.2004, the contraband was claimed to have been produced by the prosecution only on 27.02.2004 in all these days, why the prosecution delayed in producing the contraband, before the Trial Court, has not been explained. 10. By pointing out these lacuna allegedly, and by raising these grounds, the learned counsel would submit that, these violations make the prosecution case vitiated. As such, a violation of the provisions of the Act and also the non-production of the contraband before the Court in time, in the eye of law, certainly would be a fatal to the prosecution case. Therefore, the learned counsel sought for acquittal of the accused persons. 11. Per contra, Mr. As such, a violation of the provisions of the Act and also the non-production of the contraband before the Court in time, in the eye of law, certainly would be a fatal to the prosecution case. Therefore, the learned counsel sought for acquittal of the accused persons. 11. Per contra, Mr. T. Shanmuga Rajeshwaran, learned Government Advocate appearing for the prosecution/respondent would submit that, there had been no violation of Section 42(i) of the Act nor Section 52(A) had been violated. For the production of the contraband under Form No.95 on the date of occurrence i.e., on 15.02.2004, the learned Magistrate, before whom it was produced, has made an endorsement which is available in Form 95 itself, (Ex.P13). Further, endorsement dated 27.02.2004 from the learned Judge of the Trial Court also found available in Form No.95 i.e., Ex.P13 showing that, the contraband had been subsequently produced before the Trial Court on the said date and in between, since the contraband has been kept in safe custody at the police station itself, absolutely, there is no violation in this regard and therefore, the learned Government Advocate submits that, the allegation made by the defence side cannot be countenanced. 12. Therefore, the learned Government Advocate would submit that, since there had been enough evidence on the side of the prosecution, which proved the case of the prosecution that the accused persons had committed the offence set out in the charge and after having considered the evidence adduced on the side of the prosecution elaborately, the learned Trial Court Judge has rightly concluded and found the accused guilty of the offence and accordingly, only a very minimum punishment of 9 months imprisonment alone had been imposed against the accused. Therefore, the said punishment through the impugned judgment and sentence of the Trial Court against the accused persons needs no interference from this Court as absolutely, there is no ground for such interference. 13. I have considered the said submissions made by the learned counsel for the appellants and also the learned Government Advocate (Crl.side) appearing for the respondent/prosecution. 14. Therefore, the said punishment through the impugned judgment and sentence of the Trial Court against the accused persons needs no interference from this Court as absolutely, there is no ground for such interference. 13. I have considered the said submissions made by the learned counsel for the appellants and also the learned Government Advocate (Crl.side) appearing for the respondent/prosecution. 14. It is the case of the prosecution that, on 15.02.2004 at 3.30 a.m. at early hours, the P.W.2, received information secretly where, the names of the accused with address had been given by the informant that they would be coming to the particular area under the said police station limit with ganja in a blue black coloured Tata Sumo Car without any number plate and the said information had been recorded by P.W.2 and thereafter, based on such information, the P.W.6, Investigating Officer had permitted the P.W.2 and the police party to proceeded to the spot immediately. 15. Accordingly, the police team consisting of P.Ws.2, 3 and the head constable one Kannabiran and the police constables Samuvel, Bale Pandian and Murugesan, left the police station at 4.00 a.m. and according to them, they reached the spot around 4.30 a.m. when they mounted the surveillance in that area, the blue black coloured Tata Sumo vehicle, without number plate was passing through, which was intercepted and thereafter, what had been claimed by the prosecution had taken place, according to them. 16. In this context, the P.W.2, the Sub Inspector of Police, in his deposition has stated as follows: “TAMIL” 17. According to P.W.2, the moment they stopped the car, they found that, in that car there is a white colour plastic cover with ganja. Without even seeing the material, without even verifying the same as to what was inside the cover, the P.W.2, claimed that, there has been a cover consisting of ganja. This pre-determination on the side of the prosecution makes a initial doubt in the minds of this Court. 18. In the cross examination of P.W.2, he has stated as follows: “TAMIL” 19. This pre-determination on the side of the prosecution makes a initial doubt in the minds of this Court. 18. In the cross examination of P.W.2, he has stated as follows: “TAMIL” 19. It is admitted by the prosecution through P.W.2 that, the general diary had not been produced before the Court though the same is pertinent in this case because, according to the prosecution, everything had happened in the early hours, i.e., from 3.30 a.m. onwards, where, according to the prosecution, the P.W.2, Sub Inspector of Police, P.W.6, Inspector of Police, i.e., the Investigating Officer as well as the battalion of police team, consisting of head constable and constables, were on duty at the station itself and therefore, in this regard, the entry made in the general diary is pertinent. However, the same has not been produced before the Trial Court. 20. That apart, the P.W.2 has stated that, the Ex.P5, search notice, Ex.P6, Mahazar was written by police constable Bala Pandian. It means that, both the Ex.P5 and P.6 were written by same person but the original of both Exs.P5 and P6 were perused by this Court and it can be easily found that, both were not written by same person. 21. The P.W.3, Head Constable Kanagaraj, in his deposition has stated as follows: “TAMIL” 22. According to P.W.3, at 4.00 a.m. the entire police team reached the spot whereas, the P.W.2 says by 4.00 a.m., they started from the police station and reached the spot only at 4.30 a.m.. The P.W.3, in his cross examination has stated, “TAMIL” ' which means the contraband has been seized from the car by the Sub Inspector of Police. The P.W.4 by name Samuvel is also yet another head constable has deposed saying as follows: “TAMIL” 23. But the fact remains that, this witness i.e, P.W.4, is not one of the Mahazar witnesses, who, has claimed that the police party attempted one Ravi, who was travelling in a auto and one Jayaram, who was a milk vendor. But such a claim had not been made by any of the other witnesses including the P.W.2 in his deposition. The P.W.4, in the cross examination has stated that “TAMIL” which means that, in the case related documents, he has not signed witness. The P.W.1, Technical Assistant Grade-1 of the Forensic Science Lab, in his cross examination has stated as follows: “TAMIL” 24. The P.W.4, in the cross examination has stated that “TAMIL” which means that, in the case related documents, he has not signed witness. The P.W.1, Technical Assistant Grade-1 of the Forensic Science Lab, in his cross examination has stated as follows: “TAMIL” 24. Whereas, the P.W.6, Investigating Officer has stated the following: 25. “TAMIL” 26. Regarding the production of the contraband under Form No.95, the P.W.6, in his cross examination has stated as follows: “TAMIL” 27. In this context, I have perused the Ex.P13, i.e., Form No.95 where, it has only been initialled by the learned Magistrate on 15.02.2004, absolutely, there is no other endorsement made by the learned Magistrate, to accept or vouch that the contraband, was produced on that day before him. He has not made any endorsement in Form No. 95, that the contraband produced before him on that day has to be immediately produced before the Trial Court. However, the learned Judge in the impugned judgment has made the following finding: "In this case, the contraband seized in this case has been sent to the Court along with form-95 on 15.02.2004. Perusal of Ex.P13, Form-95 would show that Inspector of Police has sent the contraband to the Judicial Magistrate Court on 15.02.2004 and produced before the Judicial Magistrate on 15.02.2004. The Judicial Magistrate had made initial on 15.02.2004. Then, as per the order of the Judicial Magistrate, the contraband was forwarded before this Court on 27.02.2004. Thus, the contraband was produced before this Court without any delay. As such, the citations relied on by the accused has no application to the facts of this case." 28. When there is absolutely no endorsement or order made by the learned Magistrate on 15.02.2004, the learned Judge in the impugned judgment, as quoted above, has stated that, as per the order of the learned Judicial Magistrate the contraband was forwarded before this Court on 27.02.2004. This finding made by the Trial Court is completely erroneous as no such order is found in Ex.P13 i.e., Form No.95. 29. In this context, it is to be noted that, since the Narcotic drugs are concerned, under Section 20 of the NDPS Act, the punishment varies depending upon the quantity of the contraband possessed by the accused. This finding made by the Trial Court is completely erroneous as no such order is found in Ex.P13 i.e., Form No.95. 29. In this context, it is to be noted that, since the Narcotic drugs are concerned, under Section 20 of the NDPS Act, the punishment varies depending upon the quantity of the contraband possessed by the accused. Under Section 20(b)(ii)(A) punishment for small quantity was upto one year, under sub clause (B) if it is in between quantity i.e., the lesser than commercial quantity but greater than small quantity, the punishment shall be upto 10 years imprisonment with 1 Lakh rupees fine and under sub clause (C), if it involves commercial quantity, the minimum sentence itself would not be less than ten years and the fine shall not be less than Rs.1 Lakh and it may extend to 20 years imprisonment and Rs.2 Lakhs fine. Therefore, it is very important to note that, the provision of NDPS Act is so clear and stringent and the punishment varies depending upon the quantity of the narcotic substance possessed by the accused, when that being the position, in so far as the conclusion arrived at by the Courts on the quantity of the contraband seized as if possessed by the accused is concerned, it must be so vigilant and satisfy itself without any iota of doubt that, the quantity of the contraband as claimed by the prosecution, seized from the accused is produced before the Court and the measurement also shall be ensured. 30. Here in the case in hand, only a initial has been made by the learned Judicial Magistrate on the date of occurrence in Ex.P13, i.e., Form No.95. There is no further instructions or order from the learned Magistrate, directing the prosecution to produce the contraband before the Trial Court. However, after 12 days, the contraband claimed to have been produced before the Trial Court and in between, the prosecution claimed that, they kept the contraband at their safe custody. 31. There is no further instructions or order from the learned Magistrate, directing the prosecution to produce the contraband before the Trial Court. However, after 12 days, the contraband claimed to have been produced before the Trial Court and in between, the prosecution claimed that, they kept the contraband at their safe custody. 31. In this context, it is to be noted that, in most of the cases of this nature, the prosecution could have produced no record to show that, the police station/NIBCID is having such a facility to have the contraband in safe custody where, there is a property room register which has been maintained strictly by the prosecution at the police station or at the office of the NIBCID, as the case may be and there has been an armed guard round the clock, protecting the property room where, the contraband has been kept in the safe custody. In the absence of any such document to show from the side of the prosecution that, the contraband had been kept in the safe custody for days together or weeks together or in some cases months together, it cannot be simply presumed by the Courts that, the contraband claimed to have been seized from the accused had been kept in safe custody and why the same had been produced before the Trial Court after 32. Here in the case in hand, no such materials or documents or evidence had been produced by the prosecution except the mere statement and claim about the safe custody of the contraband between the date of occurrence and the date of production of the same before the Trial Court. 33. If at all, the contraband was produced before the Magistrate, under Form No.95, at the time of production of the accused for judicial remand, the Magistrate concerned, must ensure that, the contraband produced under Form No.95, by the prosecution, is having the weight, which was claimed by the prosecution and in this regard, this Court feels that, the prosecution has to ensure before the Magistrate concerned, that the weight claimed by the prosecution i.e., the quantity claimed by the prosecution was available. Like that, once the same had been produced and the weight of the contraband is verified by the Magistrate, he or she must give instructions/directions to the prosecution to produce immediately to the Trial Court on the next working day. Like that, once the same had been produced and the weight of the contraband is verified by the Magistrate, he or she must give instructions/directions to the prosecution to produce immediately to the Trial Court on the next working day. Thereafter, the prosecution must ensure that, the contraband as directed by the Magistrate was produced before the Trial Court on the next working day. 34. Where also, i.e., at the Trial Court, it is to be once again ensured the weight of the contraband claimed by the prosecution and thereafter, the contraband shall be kept in safe custody either on the same day itself as per the directions of the learned Judge and shall be produced as and when required. Unless these issues are sorted out, the entire system/procedure to be followed by the prosecution consistently, cannot be accepted as safe and fool proof system. 35. Here in the case in hand, on perusal of the records especially Ex.P13, this Court finds nothing has been shown in Ex.P13, that the contraband has been produced before the learned Magistrate and he has instructed the same to produce before the Trial Court. However, the Trial Court has given its findings that, the contraband was produced before the learned Magistrate on 15.02.2004 and as per the order of the Judicial Magistrate, the contraband was forwarded before this Court i.e., the Trial Court on 27.02.2004 and accordingly, he came to the conclusion that the contraband was produced before the Court without any delay. 36. The aforesaid findings given by the Trial Court is not based on any material evidence or records and therefore, based on such evidence, it cannot be concluded that the Trial Court has found the accused guilty based on the quantity of the contraband claimed to have been seized from them, without any room for tampering by anyone. 37. In so far as the ground raised by the appellants/accused in response to the signatures in the search memo of both the accused is concerned, the said argument has not impressed this Court, because, on perusal of Ex.P5, this Court finds that, both the accused after having known to the fact that they had knowledge about their right to be searched in-front of the Judicial Magistrate or Gazetted Officer, jointly made signatures in Ex.P5. Like that, the other ground raised by the learned counsel for the appellants/accused that Section 42(i) of the NDPS Act has been violated is concerned, this Court finds that, the said ground also does not impress this Court, as no such violation can be found in the present case. 38. However, in so far as the other contradictions which have been discussed by this Court in the above paragraphs of this judgment and also having regard to the doubt raised in respect of the production of the contraband under Ex.P13 i.e., Form No.95, this Court feels that, this contradictions have not been properly appreciated by the Trial Court and the reasoning given, with regard to the production of the contraband without weighing, under Form No.95, has no backing of evidence. In that view of the matter, this Court is of the considered view that, the said contradictions and the lacuna on the side of the prosecution in producing the contraband under Form No.95 had not been considered in proper perspective by the Trial Court and the guilt of the accused has not been proved by the prosecution beyond reasonable doubt. Therefore, for all these reasons this Court finds that, there are grounds and reasons to interfere with the judgment and conviction of the Trial Court. 39. In view of the above discussions, this Court feels that the conclusion arrived at and the conviction imposed by the Trial Court against the accused is erroneous and accordingly, the Trial Court judgment, which is under appeal, is liable to be interfered with. 40. In the result, the judgment and conviction dated 25.02.2012 made in C.C.No.52 of 2005 by the Principal Special Judge, Special Court under EC & NDPS Act Cases, Chennai against both the accused, is hereby set aside. Consequently, the appellants/accused are set at liberty. The bail bond if any, executed by the accused persons shall be discharged and the fine amount if any, paid by them shall be refunded. This appeal is allowed accordingly.