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Madhya Pradesh High Court · body

2019 DIGILAW 685 (MP)

Abhaykumar v. State of M. P.

2019-09-23

VIRENDER SINGH

body2019
JUDGMENT 1. Being aggrieved by judgment dated 3.1.2014 delivered in Special Sessions Trial No. 05/09 by Special Judge NDPS Act, Indore, whereby the appellant has been convicted under section 8/15(c) and 26 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "The Act, 1985) and awarded 10 years and 2 years RI with fine of Rs. 1,00,000/- and Rs. 2000/- and in default further to undergo 1-1 month RI respectively, the appellant has preferred this appeal. 2. Succinctly stated relevant facts are that the appellant obtained PS-3 license No. 4/2005-06 for the period starting from 18.5.2005 to 31.3.2006 for retail sale of the poppy straw. He was permitted to keep 5000 kg poppy straw at a time at his shop. On 18.7.2005 at about 05:10 in the evening Indrajeet Chouhan, Sub-Inspector Divisional Flying Squad, Excise, Indore inspected his shop No. 53, Niranjanpur, AB Road, Dewas Naka, Indore in presence of authorized servant of the appellant Bharat and found 3345 kg grinded and 2656 kg un-grinded total 6001 kg poppy straw in stock, while last entry of the stock register was showing total 4437 kg stock. Thus, total 1564 kg poppy straw was found in excess than the permitted limit. This excess stock was got filled in 39 bags containing 40 kg each and seized. Remaining 4 kg loose poppy straw was seized. 3. The seized contraband was handed over to the In-charge Sub Inspector, Excise, Malwa Mill Circle, Samarjeet Singh Bains. Mr. Bains started preliminary inquiry. He took out samples from the seized articles and intimated superior officer for necessary action, who in turn placed the matter before the Collector. The Collector issued show cause notice and after receiving the reply, cancelled the license vide order dated 9.1.2006. He also directed the Excise Department to take action under section 15 of the Act, 1985. The appeal filed against the order of the Collector before the Commissioner was also dismissed. Vide letters No. 2298 dated 20.6.2007 and 865 dated 20.3.2009, the Assistant Commissioner, Excise directed the concerned officer to file complaint before the Court. 4. At the time of the inspection, original license was not produced by the employee of the appellant and it was also found that the stock register was not updated. 5. Vide letters No. 2298 dated 20.6.2007 and 865 dated 20.3.2009, the Assistant Commissioner, Excise directed the concerned officer to file complaint before the Court. 4. At the time of the inspection, original license was not produced by the employee of the appellant and it was also found that the stock register was not updated. 5. Samples taken out from the seized contraband were sent to the FSL, Sagar for chemical analysis by the Office of the Assistant Commissioner, Excise, Indore. FSL confirmed that the contraband was poppy straw. After completing other usual investigation, the case was submitted before the Court against the appellant and his servant Bharat. 6. The Court framed charges against both the accused persons under section 15(c) and 26 of the Act, 1985. They abjured their guilt and prayed for trial. After the trial, they both were held guilty for the offences charged against them and were awarded 10-10 and 2-2 years rigours imprisonment with fine of Rs. 1-1 lakhs and Rs. 2-2000/- for both the offences respectively. 7. Both the appellant and the co-accused Bharat preferred two separate appeals before this Court. During pendency of the appeal, Bharat claimed juvenility. An enquiry was ordered and was handed over to the District Judge, who found him juvenile at the time of commission of the crime and submitted report. By the time, the enquiry report was received by this Court, Bharat had completed 2 years and 11 months in Jail, therefore, relying upon the judgment of Hon'ble the apex Court in the case of ViJai Singh v. State of Delhi, reported in AIR 2012 SC 3437 , this Court, vide order dated 2.11.2016, partly allowed the appeal No. 132/2014 of Bharat. His conviction was upheld but his period of detention was reduced to 3 years. 8. The first ground of the appellant is that the appeal is barred by limitation. It is submitted that the appellant was PS-3 licensee for the year 2005-06. His fault was only that he did not mention the quantity found in his shop in the stock register. The Court has granted him bail considering that his act is only violation of condition of the license. It is submitted that the appellant was PS-3 licensee for the year 2005-06. His fault was only that he did not mention the quantity found in his shop in the stock register. The Court has granted him bail considering that his act is only violation of condition of the license. Therefore, even if assumed that the stock of poppy straw was found in excess in his shop, this is only a breach of condition of licence and this is an offence under section 8/26(c) of the Act, 1985 and is punishable with three years imprisonment. As per section 468(c), limitation for taking cognizance of such offence is three years, while in the present case, complaint was filed after four years; therefore, the cognizance of this offence is barred by the limitation. 9. It is further submitted that as per Rule 37U of Narcotic Drugs and Psychotropic Substances (Madhya Pradesh) Rules, 1985, the Court cannot take cognizance of an offence against a licensee of poppy straw in wholesale or retail, for the breach of any condition of license, pass or permit issued under the Rules or the Act, 1985 except on a complaint, report or sanction of the Collector. Rule 37U reads as under : 37U. Limitation of prosecution - No Court shall take cognizance of an offence against a licensee of poppy straw in wholesale or retail, for the breach of the conditions of license, pass or permit issued under Narcotic Drugs and Psychotropic Substances (Madhya Pradesh) Rules, 1985 and punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Narcotic Drugs and Psychotropic Substances (Madhya Pradesh) Rules, 1985 except on a complaint, report or sanction of the Collector of the District concerned. 10. In this respect Gazette notification dated 28th March, 2005, which regulates sale of poppy straw, in wholesale or retail, is also referred by the appellant. 10. In this respect Gazette notification dated 28th March, 2005, which regulates sale of poppy straw, in wholesale or retail, is also referred by the appellant. Regulation No. 10(5) of the same is as follows: ^^Lokid vkS"kf/k;ka vkSj eu%ÁHkkoh inkFkZ fu;e ¼eŒÁŒ½ 1985 ds v/khu ikihLVªkW ds Fkksd vFkok QqVdj foØ; ds Loh—r vuqKfIr/kkjh ds fo#) vuqKfIr ijfeV ;k ikl dh 'krZ ds mYya?ku ij ÁFker% vuqKfIr dh 'krksZ ,oa Lokid vkS"kf/k;ksa vkSj eu%ÁHkkoh inkFkZ fu;e ¼eŒÁŒ½ 1985 ds vUrxZr dk;Zokgh dh tk,xhA ikihLVªkW yk;lsalh ds fo#) yk;lsal 'krksZ Lokid vkS"kf/k;ka vkSj eu%ÁHkkoh inkFkZ vf/kfu;e] 1985 ;k Lokid vkS"kfèk;ka vkSj eu%ÁHkkoh inkFkZ fu;e] e/; Áns'k] 1985 ds vUrxZr fdlh vijkèk ds fy, U;k;ky; esa vfHk;kstu dh dk;Zokgh lEcfU/kr ftys ds dysDVj dh LohÑfr ij gh dh tk ldsxhA** 11. Second ground of the appellant is that the complaint is not filed with the previous sanction of the Collector. Rule 37U of the Rules, 1985 mentioned above is referred by the appellant, which says that the cognizance can only be taken on the basis of complaint filed after taking sanction of the Collector. 12. Third ground of the appellant is that the complaint is not filed by the person authorized by law, but was filed by the Excise Sub Inspector, who was below the rank of Excise Officer and was not entitled to file the complainant. 13. Forth ground is that SI Indrajeet Singh Chauhan (PW1) has stated that Deputy Commissioner Mr. Jai Singh had directed him to inspect the shop of the appellant. At the time of inspection, he was with him and was sitting in the Car, but neither the authorization is produced nor Jai Singh is examined before the Court to prove any such authorization. No documents produced or proved by the prosecution bears his signatures. There is no other proof of presence of Jai Singh on the spot. Therefore, the prosecution of the appellant is illegal as it is filed by an unauthorized person. 14. Lastly, It is argued by the learned counsel for the appellant that mandatory provisions of sections 41(2), 42, 52, 55, 57, of the Act, 1985 as well as the provisions of sections 100 and 165 CrPC regulating the procedure of search have not been complied with. Prior to entering into the shop, Officers have not given their own search. The appellant was not provided list of seized contraband. Prior to entering into the shop, Officers have not given their own search. The appellant was not provided list of seized contraband. Contraband was not sealed on the spot. It is stated by the witness Samarjeet Singh that the contraband was sealed in a room in the premises of the appellant under the lock of the department, but no such room exist there. There exist only the shop and admittedly that shop was not sealed by ASI Indrajeet or by SI Samarjeet. Therefore, the statements of the witnesses that they had kept the seized contraband at the same place form where it was recovered, turns to be a blatant lie. 15. Samarjeet PW2 has stated that he is aware of the due process of law with regard to the seizure and sealing of illegal contraband. He has stated that due process means to put the seal of the department, signed it and got it signed from the witnesses. He has further stated that following the due process, he had sealed each and every bag. But in para 22 of his cross examination, he has admitted that when the bags were bought before him in the Court at the time of his statement, they were neither having seal of the department nor were having his signature or the signatures of the witnesses. 16. Nothing is on record to show as to which seal was used to seal the contraband. Impression of seal was not put on the Panchnama prepared on the spot (Ex.P-7). Witnesses have admitted that seized contraband was not sealed on the spot. 17. There is no evidence to show that which seal was used to seal the samples sent to the FSL. Samples were sent to the FSL for chemical analysis after four years of seizure on 24.3.2009. Sample of specimen seal was not sent to the FSL. There is no evidence as to where the samples were kept during this period. 18. Out of 151 bags found in the shop and out of 39 bags seized on the spot, samples were taken out only from 10 bags. Only 2 out of 10 samples taken out were sent to the FSL. 19. There is no evidence as to where the samples were kept during this period. 18. Out of 151 bags found in the shop and out of 39 bags seized on the spot, samples were taken out only from 10 bags. Only 2 out of 10 samples taken out were sent to the FSL. 19. There is no evidence that the seized poppy straw was ever handed over to the police or was deposited in the Malkhana, of police station, which is contrary to the provisions of section 55 of the Act, 1985. Stock register of Malkhana was not produced before the Court. In their cross examination, the witnesses have admitted that seized poppy straw was never deposited with the police. Even when the Collector directed them to prosecute the appellant with the help of the police, they did not seek the help of the police nor handed over the case to the police. The reason behind was that if the case would have been handed over to the police, the police would have weighed the contraband and would have taken it into their custody, which would have proved that the quantity of the contraband seized in the shop was within the permitted limit of license. The officials of the department were afraid that it may expose them. Therefore, to hide their misdeed, they filed the complaint themselves. 20. Arrest of the appellant was not intimated to the immediate Superior Officer, which is contrary to the provisions section 57. The complaint was also filed after four years of the search and seizure. Therefore, the case of the prosecution is seriously doubtful and the appellant is entitled for acquittal. 21. Per contra, learned Public Prosecutor has submitted that at the time of inspection; total 6001 kg quantity of poppy straw was found in the shop, while as per stock register, till the date of the inspection, total outstanding stock was 4437 kg. Thus, total 1564 kg poppy straw was found in excess then the permitted quantity, which could not be accounted for. The appellant has not explained the source of this excess quantity. At the time of inspection only two permits No. 1/9.06.05 of 3000 kg (Ex.P-5) and No. 26/7.07.05 of 2500 kg (Ex.P-6) of purchase of poppy straw were found in the shop. The appellant has not explained the source of this excess quantity. At the time of inspection only two permits No. 1/9.06.05 of 3000 kg (Ex.P-5) and No. 26/7.07.05 of 2500 kg (Ex.P-6) of purchase of poppy straw were found in the shop. As per undisputed entry of the stock register (Ex.P-2) total 1063 kg poppy straw was sold till the date of inspection. No other bill, voucher, permit or any other document, showing purchase of this excess quantity have been produced by the appellant. It is not only a case of false accounting of stock or of making any false statement, but is also a case of illegal possession of contraband. Therefore, provisions of section 15(c) also attract alongwith section 26 of the Act, 1985. As the alleged offence is punishable under section 8/15(c) of the Act, 1985 and the prescribed sentence is upto 10 years imprisonment, limitation prescribed under section 468(c) CrPC, 1973 does not apply in the present case. 22. In the present case, record (Ex.P-10) shows that after seizure of illegal contraband on 18.7.2005, case No. 116/05 was registered and was presented before the Collector, who issued Show Cause Notice to the appellant and after hearing, granted permission to prosecute him vide order dated 9.1.2006. Order of the Collector was challenged by the appellant before the Commissioner, who stayed operation of order of the Collector and ultimately dismissed the appeal in 2009. This not only manifests that the complaint against the appellant was filed with the previous sanction of the Collector, but also explains the delay and negates the contention of the appellant. 23. In the case in hand, the inspection, search and seizure have been effected by Assistant Sub Inspector Indrajeet Singh Chauhan (PW1), who is an officer of Excise department and is superior in rank to a Peon, Sepoy and Constable and is duly authorized to effect search and seizure. The search is effected before the sunset, therefore, in view of the provisions of section 42 of the Act,1985 no fault can be found in the procedure adopted by the Seizing Officer (PW1) Indrajeet Singh Chauhan and absence of proof of presence of Excise Officer Mr. Jai Singh or absence of authorization of subordinate officer by him do not adversely affect the case of the prosecution. 24. Jai Singh or absence of authorization of subordinate officer by him do not adversely affect the case of the prosecution. 24. It is stated by SI Samarjeet PW2 that they did not bring the seized contraband with them, but kept the same in a room in the premises of the appellant under the lock of the department. List of contraband was not prepared on the spot, but looking to the nature of contraband seized, there appears no need to prepare any such list. Therefore, the objections that no list of seized article was provided, contraband was not seized on the spot or was not sealed, when deposited in Malkhana, specimen of seal used to seal the substance was not proved, impression of seal was not put on the Panchnama Ex.P-7 etc. have no substance. 25. As per the prosecution case, Excise Officer Jai Singh along with ASI Indrajeet Singh had gone to a routine inspection of a licensed shop. It is not the case of the prosecution that any of them had received any information regarding any offence being committed by the appellant. It was only when they checked the stock register and physically verified the quantity stocked in the shop, they came to know that excess than the permitted quantity was stocked by the licensee, therefore, it cannot be said that there is non-compliance of any provisions of section 41 or 42 of the Act, 1985. In Ram Kumar v. Central Bureau of Narcotics, (2008) 5 SCC 385 it is held that provision of section 42 of the Act,1985 do not apply in the case of chance recovery. Relevant para 7 of the judgement is as under : 7. It is to be noted that this is a case of a chance recovery and section 42 has no application. It is the case of the prosecution as stated by Shri A.B. Acharya (PW4) and Devilal Prajapati (PW2) who were posted as Superintendent and Inspector of Narcotics Department at the relevant point of time that on 5.9.1997 they wanted to make casual inspection. The driver and the conductor were duly informed. On inspection two persons sitting on Seats Nos. 1 and 2 were found suspicious and on being asked they disclosed their names as Aziz Khan and Ram Kumar respectively. The driver and the conductor were duly informed. On inspection two persons sitting on Seats Nos. 1 and 2 were found suspicious and on being asked they disclosed their names as Aziz Khan and Ram Kumar respectively. Thereafter, they both were given options to be searched in terms of section 50 of the Act and they consented for their search to be done before PW4. Panchnama was prepared. During search 710 gm of brown sugar was recovered from the appellant which was kept inside the shoes and 800 gm of brown sugar was recovered from Aziz Khan. On verification and analysis it was found that the seized substance was brown sugar. Statement of both the accused was recorded. The evidence of witnesses clearly established that it was a case of chance recovery in a public place effected during routine checking. The contraband articles were recovered from the exclusive possession of the appellant and the coaccused. 26. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172 the Hon'ble Supreme Court has held that : 12. On its plain reading, section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of section 50 of the Act are not attracted. 27. In this regard, the learned Public Prosecutor also referred State of H.P v. Sunil Kumar, (2014) 4 SCC 780 and Babubhai Odhavji Patel v. State of Gujarat, (2005) 8 SCC 725 . 28. Hon'ble the Supreme Court has held in Gurbax Singh v. State of Haryana, (2001) 3 SCC 28 that the provisions of sections 52 and 57 are not mandatory but are directory. Violation of these provisions would not ipso facto violate the trial or conviction. The Court has reiterated the same view in Babubhai Odhavji Patel v. State of Gujarat, (2005) 8 SCC 725 . Para 8 of this judgement reads as under : 8. Violation of these provisions would not ipso facto violate the trial or conviction. The Court has reiterated the same view in Babubhai Odhavji Patel v. State of Gujarat, (2005) 8 SCC 725 . Para 8 of this judgement reads as under : 8. The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala v. State of Kerala [1993 Supp (3) SCC 665 : 1993 SCC (Cri) 1082]. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State of Haryana [ (2001) 3 SCC 28 : 2001 SCC (Cri) 426] held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case. 29. In the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172 Hon'ble the apex Court has opined that : 14. The provisions of sections 100 and 165 CrPC are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh case [ (1994) 3 SCC 299 : 1994 SCC (Cri) 634] after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. In Balbir Singh case [ (1994) 3 SCC 299 : 1994 SCC (Cri) 634] after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the Courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. 30. It is argued that no fault could be pointed out by the appellant in the procedure adopted by the authorized officer to effect the search in question. It does not appear from the evidence on record that any prejudice was caused to the appellant due to any lapse in the procedure followed. 31. The appellant was arrested on 25.3.2009 (Ex.P-11) and produced on the same day before the Court. The contraband was seized on 18.7.2005 (Ex.P-1) and immediate superior was intimated on 19.7.2005 (Ex.P-8 and 10). Therefore, there is no violation any law on this part also. 32. In the present case, record (Ex.P-10) shows that after seizure of illegal contraband on 18.7.2005, the case was presented before the Collector on 19.7.2005, who issued Show Cause Notice to the appellant and granted him opportunity of hearing. The appellant filed objections. This hearing took two years. Vide order dated 9.1.2006; the Collector dismissed the objections of the appellant and granted permission to prosecute him. Order of the collector was challenged by the appellant before the Commissioner, who stayed operation of the order of the Collector and finally dismissed the appeal in the year 2009 (Ex.P-10). Thus, the delay is properly explained and it cannot be attributed to the prosecution. Further, there is nothing to show that the delay caused any prejudice to the appellant. 33. Thus, the delay is not fatal on both counts; firstly that is properly explained and is not attributed to the prosecution and secondly; there is no evidence that delay caused any prejudice to the appellant. This delay can be ignored in view of the provisions of section 473 CrPC 34. 33. Thus, the delay is not fatal on both counts; firstly that is properly explained and is not attributed to the prosecution and secondly; there is no evidence that delay caused any prejudice to the appellant. This delay can be ignored in view of the provisions of section 473 CrPC 34. The samples taken out from the stock of the appellant could be sent to the FSL after 4 years of the recovery. As stated in the preceding para, due legal proceedings pending at the instance of the appellant, it could not be sent to the FSL earlier. As per report of the FSL, the seals of the samples were intact when it received the samples (Ex.P-13). This fact is unchallenged. It was held in Hardip Singh v. State of Punjab [ (2008) 8 SCC 557 that when the seals are intact, even the delay of 40 days in sending the sample to the laboratory is not fatal to the prosecution case. 35. There is nothing on record to show that bags were sealed on the spot using any particular seal. No sample of seal is affixed on the memo of inspection, Contraband was sent to FSL after four years and during this period it remained with Excise Department but there is no allegation that during this period it was tempered with or deteriorated in any other manner. 36. As per FSL report, the sample was found sealed, seals were found intact. No signs of tempering with the samples were found, therefore, it is not challenged by the appellant that there was any tempering with the samples, rather it is not challenged that the substance found in the shop of the appellant was not poppy straw, therefore, contention of the appellant that there is absence of any evidence regarding sealing of sample is out of context and is not tenable. 37. I have considered rival contentions of both the parties and have perused the record. 38. The prosecution has not replied several questions raised and many doubts expressed by the appellant on material points, which goes to the roots of the prosecution case and trembles its substratum. The prosecution has come with the case that Excise Officer, Flying Squad, Indore Jai Singh directed ASI Indrajeet Singh Chauhan and the other members of search party to accompany him to inspect the shop of the appellant. The prosecution has come with the case that Excise Officer, Flying Squad, Indore Jai Singh directed ASI Indrajeet Singh Chauhan and the other members of search party to accompany him to inspect the shop of the appellant. Indrajeet travelled in the Car of Excise Officer Jai Singh and other members travelled with a separate official vehicle. Jai Singh and Indrajeet reached on the spot slightly prior to the other personnel of the department. Indrajeet Singh (PW1) has stated that Mr. Jai Singh had directed him to inspect the shop of the appellant. But statements of the witnesses are not supported by any document. Neither the authorization is produced nor is Jai Singh examined before the Court to prove any such authorization. No documents produced or proved by the prosecution; which bears his signatures. There is no other proof of presence of Jai Singh on the spot. Indrajeet PW1 has stated that during the inspection, Jai Singh was sitting in the Car outside the shop, while according to Samarjeet he went inside the shop. This raises doubt as to what was the reason that an officer of the Deputy Commissioner rank did not come forward to take the responsibility of the case and has kept himself behind the curtain. This leads us towards two conclusions either the witnesses are telling lie or the responsible officer has withdrawn himself for the reasons best known to him. In either case, it puts a question mark on the truthfulness of the witnesses of the department and also on the prosecution case. 39. It is not disputed by the prosecution that the appellant was not provided list of seized contraband. There is no evidence that the contraband was sealed on the spot. It is stated by Samarjeet that he kept the contraband in a room in the premises of the appellant under the lock of the department, but there is no evidence that any Panchnama of such locking was prepared on the spot. No other evidence is produced to show that any such room was sealed on the spot. There is also no evidence that the officials were having any lock with them or they called any such lock. It was not the case of the prosecution that the seized article was kept in any such room and above all no evidence is on record that any such room exists there. There is also no evidence that the officials were having any lock with them or they called any such lock. It was not the case of the prosecution that the seized article was kept in any such room and above all no evidence is on record that any such room exists there. SI Samarjeet PW2 has admitted that he was aware of the process of the law of seizure and sealing contraband and that due process means to put the seal of the department, signed it and got it signed from the witnesses. He has further stated that following the due process, he had sealed each and every bag. But in para 22, he has admitted that when the bags were brought before him in the Court, they were neither having any seal nor any signatures. 40. It is also a fact that there is no evidence that which seal was used to seal the contraband. Impression of seal was not placed on the panchnama prepared on the spot (Ex.P-7). There is no evidence to show that which seal was used to seal the samples sent to the FSL. Samples were sent to the FSL after four years of seizure on 24.3.2009. Sample of specimen seal was not sent to the FSL. There is no evidence as to where the samples were kept during this period. It is mentioned in the report of the FSL that seals were intact, but when the sealed bags of contraband were produced in the Court, their condition was very poor. They were in tattered, torn or in ragged condition. The witness has admitted that due to change of weather, termites, rats, insects they got rotten. The same analogy applies to the samples also particularly when there is nothing to show that some special care was taken to keep them safe and secured. In the similar circumstances, it cannot be believe that even after 4 years the samples were in good condition and their seals were intact. 41. There is no evidence that before taking samples the article was made homogeneous. It appears from the evidence that no bag was opened or the seized poppy straw was mixed before taking samples. 42. In the similar circumstances, it cannot be believe that even after 4 years the samples were in good condition and their seals were intact. 41. There is no evidence that before taking samples the article was made homogeneous. It appears from the evidence that no bag was opened or the seized poppy straw was mixed before taking samples. 42. It is also not rebutted by the prosecution that out of 151 bags found in the shop and out of 39 bags seized on the spot, samples were taken out only from 10 bags. Only 2 out of 10 samples were sent to the FSL. Therefore, it cannot be considered a representative sample and only on the basis of testing of these two samples taken out from two bags, entire quantity of article seized on the spot cannot be considered as poppy straw. 43. The witnesses have admitted that they never handed over the seized poppy straw to the police and no reason is assign for such laps, which makes the doubts raised by the appellant plausible. 44. It is also a fact that in the present case, the complaint is filed after four years of the search and seizure, even when since the day one, the department was aware that storing the poppy straw more than the permitted limit is an offence under section 8/15(c) and for which neither permission of anyone is required nor any other legal formality is necessary. This also makes the conduct of the officers of the excise department doubtful. 45. Evidence of the prosecution regarding weighing of the poppy straw is also very shaky. No Tol Panchnama was prepared on the spot. Both the main witnesses Indrajeet and Samarjeet have said that all 149 bags were containing exact 40 kg poppy straw, neither a bit less nor a bit more. Further, Samarjeet has said that there were two weights of 20 kg each. Both Indrajeet and Samarjeet have admitted that besides, the 40 kg bags there was 25 kg and 16 kg loose poppy straw in two bags, but how they weighed it, not clear from the record. Looking to the nature of article and the fact of its manual handling, practically such accuracy is not possible. In such situation, the submission made by the appellant cannot be thrown out. Looking to the nature of article and the fact of its manual handling, practically such accuracy is not possible. In such situation, the submission made by the appellant cannot be thrown out. Evidence regarding weighing of poppy straw found in the shop is seriously doubtful, therefore, it cannot be said with certainty that the quantity excess from the limit prescribed by the permit and claimed by the prosecution was found on the spot. 46. It is the case of the prosecution itself that at the time of inspection, the appellant was not present on the shop. Record does not show that any attempts were made by the team of the officials to call him. Entire proceeding on the shop was taken up in the presence of employee of the appellant, who later found juvenile at the time of the incident. Thus, vitiates the entire proceedings taken up by the officials of the department behind the back of the appellant and decapitates the entire prosecution case. 47. Thus, keeping in mind the facts and circumstances of the case and the mandate of law, I am of the opinion that the prosecution could not discharge its burden of proof in any manner. All the basic things are missing in this case. Mandatory procedure prescribed by law has not been followed. There is no evidence that the seized article was weighed on the spot, sealed or kept in safe custody for 4 years, similar is the situation with the samples, even this is not known as to where the samples were kept in these 4 years, no specimen seal was sent with the samples, contraband was not handed over to the police for no reason, no seal or signature was found on the bags of contraband, when they were produced before the Court, this shatters the claim of the witnesses that they sealed and signed each and every bag at the time of their seizure. All such situations make all the in-house witnesses totally untrustworthy and also makes the prosecution case seriously doubtful. It is unsafe to rely upon them to the extent to convict the accused for any of the offence charged with. The learned trial Court failed to appreciate the evidence in right perspective, therefore the judgement and order passed by it is not sustainable. 48. It is unsafe to rely upon them to the extent to convict the accused for any of the offence charged with. The learned trial Court failed to appreciate the evidence in right perspective, therefore the judgement and order passed by it is not sustainable. 48. Look at from any angle, overwhelming evidence exists to doubt the prosecution case, therefore, there remains no need to discuss other issues raised by the parties. 49. Consequently, the appeal is allowed. The appellant is acquitted from both the charges. He be set at liberty forthwith, if not required in any other case. Fine amount, if deposited, be returned. 50. The order of the trial Court with regard to the disposal of the case property is hereby confirmed.