JUDGMENT : 1. This Criminal Appeal has been filed against the Judgment and conviction made by the I Additional Special Court for NDPS Act, Chennai, dated 18.05.2012 made in C.C.No.292 of 2004. 2. The case of the prosecution is that, on 23.05.2003 at 7.30 a.m, while the P.W.2 was working as Sub Inspector in NIB CID, Chennai, when he was at the station, he received a secret information from the informer over phone that, one Ranjithkumar, s/o.Kanniyan (A1) at No.55, Bajanai Koil Street, Kalyanapuram, Ambattur, Chennai - 53 and one Nidhi @ Nidhichezian, s/o. Subramani (A2) residing at No.53, Bajanai Koil Street, Kalyanapuram, Chennai - 53 were going to involve in illicit sale of ganja between 8.00 hours and 10.30 hours near Layola College bus stop, Nungambakkam, Chennai - 34. The said information received by the P.W.2 was reduced into writing and the same was placed before the then Inspector of Police, who was the Investigating Officer on the said date, who has accorded permission to the police team headed by P.W.2 to rush to the spot and to take action in accordance with law. 3. The P.W.2 along with the police team consisting of Head Constables and police constables as well as two women police constables reached the spot at about 8.30 a.m, and when they mounted the surveillance at that area, two persons came nearer to the place who were identified by the informer. Immediately the police team moved to nab them. On seeing the police team, one among the two after leaving the plastic bag he was holding at his hand, fled the place and the other man was caught by the police team. After divulging the identity of the police team, the P.W.2 informed the A1, who was caught, that they had an information to suspect that, he was to indulge in illicit sale of ganja and therefore he had to be searched and in this regard, he has every right to demand that, such search had to be undertaken in front of the nearby Magistrate or a Gazetted Officer and when the same was informed and his convenience was requested, the A1 had replied stating that, no need to take him to the Judicial Magistrate or the Gazetted Officer and he can be searched by the P.W.2 himself, who is known to him as Sub Inspector of Police. 4. 4. Based on such written consent given by the A1 (Ex.P.4), search was conducted and the plastic bag, which the A1 was holding was searched and it was found that, within the said plastic bag, loose ganja, which was later weighed as 1300 gms, was found. Thereafter two samples each of 50 gms were taken from it, that was packed and sealed. Before which the P.W.2 requested for two public witnesses, by name, one Munivel, s/o. Ramu and one Bharathan, s/o.Raghavan. But, since they refused to be witnesses, the P.W.2 made Head Constables, one Mangalanathan and one Ravikumar as witnesses, who were in the police party. 5. In the presence of the said witnesses, search were conducted, contraband were seized and after having taken samples, it has been packed. 6. Like that, the another plastic bag which was left by another person (A2) also was searched and it was found that, loose ganja of 2500 gms in the plastic bag left and that was also weighed and seized through seizure mahazar in front of the witnesses, namely two police Head Constables and thereafter two samples each of 50 gms had been taken and packed separately and the remaining contraband had been packed separately. Thereafter arrest memo has been given and information of the arrest of A1 was intimated to the father of the A1 and after having arrested the A1, he along with the contraband seized from him and the contraband seized from the plastic bag left by A2 had been brought to the station and after registering the FIR, i.e., Ex.P.8, after preparing the report under Section 57 of the NDPS Act, the seized materials along with A1 had been handed over to the then Inspector of Police, who was the Investigating Officer. 7. Thereafter the then Inspector of Police, who was the Investigating Officer, after having enquired the same, had sent the accused A1 for remand and according to him, along with the accused A1, the contraband seized had been sent under Form No.95 to the learned Magistrate. The learned Magistrate, on production of A1 had remanded him for judicial custody and also had initialed in Form No.95. 8. Thereafter on 18.06.2003, the property, i.e., the contraband were produced before the Special Court and they were later marked as Ex.P.11 and Ex.P.12. 9. The learned Magistrate, on production of A1 had remanded him for judicial custody and also had initialed in Form No.95. 8. Thereafter on 18.06.2003, the property, i.e., the contraband were produced before the Special Court and they were later marked as Ex.P.11 and Ex.P.12. 9. On the side of the prosecution witnesses, P.W.1 to P.W.4 were examined and Ex.P.1 to Ex.P.12 were marked. Material Objects from M.O.1 to M.O.6 were produced. 10. The trial Court after having tried the case, by the impugned Judgment and conviction, dated 18.05.2012, convicted both the accused and sentenced each of the accused to undergo 7 months imprisonment and to pay a fine of Rs.5,000/- each, in default to undergo further period of one month R.I for the offences punishable under Section 8(c) r/w 20(b) (ii) (B) of NDPS Act. Aggrieved over the said Judgment and conviction made against the accused persons, both the accused preferred this Appeal. 11. The case of the prosecution was that, on receipt of secret information on 23.05.2003 at 7.30 a.m, (Ex.P.3), the P.W.2 after having obtained permission from the then Inspector of Police, who was the Investigating Officer of NIB CID, Chennai at about 7.45 a.m, left the station to reach the spot at about 8.30 a.m and when the police team had been in surveillance, they found the two persons, i.e., A1 and A2 were coming with two plastic bag each of them were holding and when they were identified by the informer and the police team started moving to nab them, one of them had left leaving the plastic bag, another one was caught by the police team. 12. Thereafter the person who have been caught by the police team (A1) was searched and contraband were seized and according to the prosecution, Section 50 (1) of the NDPS Act has been scrupulously followed and thereafter, the A1 was arrested and along with the contraband he had been taken to the police station and thereafter he had been produced before the learned Magistrate Court who remanded him for judicial custody. 13. 13. However in so far as the A2 is concerned, it is only on the basis of the confession statement given by the A1, the prosecution connected A2 stating that, A2 was the person who had accompanied with A1 on the date of occurrence and on seeing the police party, he left leaving the plastic bag, which was taken by the police and when it was searched in front of the witnesses (police witnesses), they found that, 2500 gms of ganja was available in that bag, out of which two sample pockets had been prepared each consisting of 50 gms and the remaining ganja, i.e., contraband had also been separately packed, which was subsequently marked as Ex.P.12. 14. In this context, it is to be noted that, even though it was made clear by P.W.2 at the time of filing the Section 57 Special Report that, efforts are being taken to trace the absconding accused, Nidhi @ Nidicheziyan (A2), the prosecution had not taken any steps to nab the A2, however later on, he surrendered himself. But the prosecution says that, at the time of receipt of information, i.e, Ex.P.3, the name and address of A2 also was given by the informant and subsequently, when both A1 and A2 were seen coming at the occurrence spot, they were identified by the informant and when the police team approached them, A2 left the spot and attempt was made by the police team to nab him, it went in vain. Based on the strength of these aspects, the prosecution had shown the A2 as one of the accused and accordingly the charge has been laid against him. 15. However after he surrendered, it seems that no attempt has been made by the prosecution to get the confession statement from A2 and if further enquiry required, the prosecution could have taken A2 under police custody for interrogation. 16. Except the evidence of P.W.2 and P.W.3, both are police witnesses, no other evidence was available that, the contraband consisting of 2500 gms of ganja had been left only by A2. Even though this lacuna was tried to be overcome by the prosecution by stating the aforesaid circumstances, this Court feel that, in so far as the charge laid against the A2 is concerned, where there had been some circumstantial evidence to prove the prosecution theory, it is a doubtful one. 17. Even though this lacuna was tried to be overcome by the prosecution by stating the aforesaid circumstances, this Court feel that, in so far as the charge laid against the A2 is concerned, where there had been some circumstantial evidence to prove the prosecution theory, it is a doubtful one. 17. In this context, the trial Court has given its reasoning which read as follows : "18...The Learned counsel for the accused further contended that P.Ws.2 & 3 stated that another person has ran away from the spot without identity. 2nd accused is the person connected with this case. On the basis of the confession statement of the accused A1. P.Ws.2 & 3 came to the conclusion that the 2nd accused was the person who had ran away after dropping the contraband. But the law is well settled that the 1st accused's confession related to 2nd accused is inadmissible in law. Further the Learned counsel for the accused persons contended that P.W.3 stated that since the 2nd accused's name was found in the information. P.Ws.2 & 3 came to the spot; but in Ex.P.3 Information there is no identify of 2nd accused given except his address; to prove the said address, the prosecution has not taken any steps also. Even after the surrender of 2nd accused, P.W.4 has not taken any steps to take the accused in his custody and recorded a confession statement. The prosecution also has not taken any steps to make suitable enquiries to identify 2nd accused. In the absence of identification of the 2nd accused this Court cannot come to the conclusion and convict the accused. But on a careful perusal of evidence of P.W.2, it is very clear that “Any Other Language” P.W.3 also stated that “Any Other Language” The identify of the accused persons in this case also not raised till the completion of evidences. The 2nd accused at the time of 313 questioning also specifically stated that “Any Other Language” establishes that the prosecution has proved the identity of the accused persons A1 & A2." 18. The 2nd accused at the time of 313 questioning also specifically stated that “Any Other Language” establishes that the prosecution has proved the identity of the accused persons A1 & A2." 18. The deposition of P.W.2 as has been heavily relied upon by the learned trial Court Judge and also the answer of A2 at the time of 313 questioning that, when he was involving in a commotion with relative, the police team taken him and launched this false case, the learned Judge has come to the conclusion that identity of A1 and A2 had been proved. 19. In this context, it is to be noted that, in so far as the identity and other aspects of A1 is concerned, all together is a different issue, since he has been, according to the prosecution, caught at the time of occurrence and search and seizure was taken place and the contraband was seized and he had been arrested and remanded to judicial custody. However in so far as A2 is concerned, merely on the basis of the evidence given by the P.W.2, who was the search and seizure officer linking the circumstance that, the informant of the police had identified both the A1 and A2 and therefore he had come to the conclusion that, the person who fled the scene of occurrence leaving the plastic bag is none other than the A2 cannot be accepted, as the prosecution has not proved that aspect against A2 beyond reasonable doubt. 20. However in so far as A1 is concerned, though there had been no public witness shown from the prosecution side, the justification given by the prosecution that, though attempt was made to get the public witness and two of the identified persons, of course only by name and father's name, had been requested for, since they refused to be witnesses, the prosecution, according to P.W.2, had no other option except to involve the two persons, i.e., two police Head Constables who were also part of the police team to be the witnesses. Even though there had been no direct public witnesses, the justification given for not having the public witnesses during search and seizure can be accepted. 21. Even though there had been no direct public witnesses, the justification given for not having the public witnesses during search and seizure can be accepted. 21. However in so far as the seizure of contraband and the production of the same under Form No.95 in Ex.P.11 and Ex.P.12 before the learned Magistrate on the same date of occurrence is concerned, there has been a great doubt raised by the defence side. According to them, the contraband had not been produced before the learned Magistrate on the date of occurrence. Assuming that, the same had been produced, no date and time has been mentioned and assuming that, it has been produced on 23.05.2003 itself, the contraband had been produced before the Special Court only on 18.06.2003, i.e., after the delay of 25 days. For such delay, absolutely there had been no reason from the prosecution side. 22. In this context the prosecution's case is that, on 23.05.2003 itself the seized material, i.e., contraband from both A1 as well as the plastic bag left by the A2 had been packed after taking sample and the same had been produced before the regular Magistrate under Form No.95, which was received and checked by the learned Magistrate, who initialed in the Form No.95 on the said date itself with the endorsement that, the contraband can be produced before the concerned trial Court, therefore these evidence would go to show that, the contraband had been produced on the very date of occurrence itself. 23. In order to testify the said prosecution case with regard to the production of contraband is concerned, I have verified the original Form No.95 produced in respect of the contraband seized from A1 as well as from A2 (Plastic bag left by A2). From No.95 of A1 is marked as Ex.P.11, where the learned Magistrate on 23.05.2003 has initialed by stating "C & R". There is no other endorsement in the said Form No.95 in Ex.P.11. Whereas in respect of Ex.P.12, which is Form No.95 of the contraband from A2, the very same learned Magistrate on 23.05.2003 has made his initial with an endorsement "C & R", but in the reverse side of the Form No.95, there is an endorsement by the learned Magistrate stating that "produce the property before the concerned Court". Whereas in respect of Ex.P.12, which is Form No.95 of the contraband from A2, the very same learned Magistrate on 23.05.2003 has made his initial with an endorsement "C & R", but in the reverse side of the Form No.95, there is an endorsement by the learned Magistrate stating that "produce the property before the concerned Court". It is to be noted that, no date and time has been mentioned and also it was not mentioned as to on or before what date and time, such property can be produced before the concerned Court. 24. It is also to be noted that, in Ex.P.11 in the rear side, the Court Officer has made an endorsement stating "received the Form No.95", and there is an endorsement in Ex.P.11 as well as in Ex.P.12 that on 18.06.2003, received a Form No.95 by the Court Officer and in the Form No.95 both in Ex.P.11 and Ex.P.12, the learned trial Court Judge has signed on 18.06.2003. 25. In this regard, it is to be noted that, the letter "C & R" means checked and received. If it is taken into account, the contraband produced along with Form No.95 presumed to have been received and checked by the learned Magistrate. In Ex.P.11, no endorsement directing the prosecution to produce the property before the concerned Court. However such endorsement is available in Ex.P.12. This was happened on 23.05.2003, whereas after 25 days, only on 18.06.2003, the property, i.e., contraband has been produced before the trial Court. 26. During the time of hearing, when a specific question was asked to the learned Government Advocate (Crl. side) as to how the seized property, i.e., contraband can be kept safely in between these dates, i.e., from the date of production of property / contraband before the learned Magistrate Court and the reproduction of the same before the concerned Court, i.e., the trial Court, the learned Government Advocate has stated that, the property / contraband could be kept at the police station itself or in the NIB CID police station itself where there is safety room. However in this context, there is no register to the extent mentioning or denoting on which date the contraband / property had been kept in safe custody and on which date, it has been taken from the property room for the production of the same before the learned trial Court Judge. 27. However in this context, there is no register to the extent mentioning or denoting on which date the contraband / property had been kept in safe custody and on which date, it has been taken from the property room for the production of the same before the learned trial Court Judge. 27. When this lacuna has been pointed out, the learned Government Advocate has taken a stand that, like Malkhana houses, the property room / safety room are being built at various places and at present there is no separate property room or Malkhana room available in each of the police station in the State and till such time, the property / contraband can only be kept under safe custody in the police station itself. 28. In this context, the learned counsel appearing for the appellant / defence side has relied upon some of the decisions which are the cases where almost similar situation has been dealt with. 29. In the case of State of Rajasthan v. Gurmail Singh, the Hon'ble Apex Court in Appeal (Crl.) No.1179 of 1999, by Judgment dated 23.02.2005 has given the following finding : "Sri Ganganagar in Sessions Case No.15 of 1995. The Respondent preferred an appeal before the High Court which was allowed by the High Court by its impugned judgment and order. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent. We find no error in the judgment of the High Court. This appeal is, therefore, dismissed." 30. These loopholes in the prosecution case have led the High Court to acquit the respondent. We find no error in the judgment of the High Court. This appeal is, therefore, dismissed." 30. In 2000 (4) Crimes 1, in the matter of Ravi & Ors. v. Sate by Inspector of Police, a learned Judge of this Court has taken the view that, the property recovered on 06.07.1996 was produced before the Special Court on 17.07.1996. Since there was no explanation for the delay, the conviction given was held to be unsustainable. In this regard, the findings given by the learned Judge in the said case is extracted hereunder : "It is admitted that the accused were arrested on 06.07.1996 and that the property was sent to the Special Court on 17.07.1996. It is also the case of the prosecution that the property was sent to the Court under Form No.95 and that the Court directed them to produce the property before the Special Court. It is seen from Form No.95 that the Court received the Form even on 7-7-1996. The Court has made the following endorsement "to be produced before the special Court NDPS Court". As the Court immediately returned the Form No.95, the Court had no occasion to verify the property and enter the same in the property register. It is admitted that the property was not produced on the next day. On the other hand, it is seen that the property was produced before the Special Court on 17-7-1996 alongwith the requisition letter Ex.P.22 and it would show that the Inspector sent the requisition letter along with the property. Therefore it is clear that the Special Court did not receive the property before 17-7-1996. After receiving the above property, the property was not kept in the custody of the Court. The letter of the Special Court marked as P1 will show that the property was sent along with the covering letter dated 18-7- 1996. In the above letter, it is stated that the property is being sent through Police Constable but the name of the Police Constable is not mentioned. The crime number is not mentioned in the letter. Even though the above letter is said to have been sent on 18-7-1996. The report of the Chemical Examiner, Ex.P.2 will show that the chemical examiner received the cover on 22-7-1996. The crime number is not mentioned in the letter. Even though the above letter is said to have been sent on 18-7-1996. The report of the Chemical Examiner, Ex.P.2 will show that the chemical examiner received the cover on 22-7-1996. It is significant to note that the Metropolitan Magistrate before whom the accused were initially produced for remand is situate near the EC Court, and the distance would be less than 1 Km. The Office of the chemical examiner is also situate in the City of Madras. In the above circumstances, I fail to understand as to why there is undue delay on the part of the prosecution in sending the property to the Court. 18. P.W.4 the Inspector who conducted further Investigation has stated that the accused and property were produced before Court on 7-7- 1996. He has also admitted that the property was returned by the Court and that on the same day, the property was sent to the Special Court. When his attention was drawn on this aspect in cross-examination, he has admitted that he did not examine the Constable who produced the property into the Court, but he would say that till 17-7-1996, the property was in their custody. He has also admitted that there is no endorsement in writing to that effect. In the earlier portion of the cross-examination, he has stated that the property was returned by the court on 7-7-1996 and that on the same day, he sent the property to Special Court. If that it so, the property would not have been kept in the Police Station, then where the property was kept? In order to wriggle out from the above situation, he has given another answer stating that the property was kept in the Police Station till 17-7-1996. It is, thus, seen that the prosecution has not come forward with a definite case that after the property was returned on 7-7-1996 the same was kept in the Police Station." 31. By relying upon these decisions, the learned counsel appearing for the appellant / accused argued that, in the present case between 23.05.2003 and 18.06.2003, according to the prosecution, the contraband had been kept in police station and only after receipt of all documents by the trial Court, then only it was produced. By relying upon these decisions, the learned counsel appearing for the appellant / accused argued that, in the present case between 23.05.2003 and 18.06.2003, according to the prosecution, the contraband had been kept in police station and only after receipt of all documents by the trial Court, then only it was produced. If that is the case of the prosecution, it is for the prosecution to prove that, in all these days, i.e., for 25 days, the property / contraband had been kept in safe custody and there had been vouch to that effect from the date of keeping the contraband in safe custody till the date of taking it from the safe custody for the production before the Court, which has to be produced and substantiated. In the absence of any such evidence, the theory of prosecution cannot be accepted. 32. The said argument advanced by the learned counsel appearing for the appellant / accused has got some force. Because, according to the NDPS Act, especially under Section 20, the punishment varies depending upon the quantity of the contraband, which was in possession of the accused. In the case in hand, according to the prosecution, both the accused were in possession of the contraband, which is an intermediate quantity within the meaning of Section 20(b)(ii)(B). 33. In this kind of cases, it is not only the duty of the prosecution to take sample from the contraband seized for sending it to chemical analysis but also keeping the remaining contraband in complete safe custody and there can be no room for any meddling of such contraband and it has to be ensured by the prosecution. 34. In this context, the evidence of P.W.3 in his cross-examination has to be noted, which reads as follows : “Any Other Language” 35. When the P.W.3 has categorically stated that, the label pasted on the contraband which was seized from the accused were not available subsequently when it was produced before the trial Court, it has disclosed the fact that, there had been no full proof safety measure available with the prosecution / police to keep the contraband intact in safe custody. 36. When the P.W.3 has categorically stated that, the label pasted on the contraband which was seized from the accused were not available subsequently when it was produced before the trial Court, it has disclosed the fact that, there had been no full proof safety measure available with the prosecution / police to keep the contraband intact in safe custody. 36. In this context, it is further to be noted that, in Ex.P.11 (Form No.95) for A1, the learned Magistrate has not made an endorsement directing the prosecution to produce the property before the concerned Court, whereas such an endorsement has been made by him in Ex.P.12, which is Form No.95 pertaining to A2 alone. 37. Moreover, whenever Form No.95 is received either by the remand Magistrate or subsequently by the trial Court, what is the basis under which they verified that, the contraband seized had been kept intact and had been produced with seal, which ensure the quantity of the contraband, also has not been made specifically. Moreover when the remand Magistrate passes an order stating that, the property be produced before the trial Court, it should be treated only as an immediate production of the same, which means at least on the next working day. In this context, the prosecution always make a theory stating that, only on receipt of the case documents by the trial Court, the contraband can be produced through Form No.95 before the trial Court, for which there is no time limit prescribed. 38. This lacuna will always create a suspicion in the minds of the Court that, there is absolutely no fool proof system available to the prosecution to keep the contraband intact from the date of seizure till the date of production before the trial Court, assuming that it had been kept in between at the safety room or property room allegedly available in the police station itself. 39. In this context, it is further to be noted that, in the absence of any register to note down the date and time of keeping the contraband in the safe custody of the property room attached with the police station concerned and also in the absence of proof to show that, the property room attached with the police station is safely guarded round the clock by separate guard, the system claimed as fool proof one, by the prosecution, cannot be accepted. 40. 40. In these circumstances and context, though the prosecution on other aspects have come forward with the case that, the accused had been guilty of the offences punishable under Section 8(c) of the NDPS Act, whether the punishment awarded by the trial Court based on the alleged quantity of the contraband seized from the accused persons in possession of them, would be fit in under Section 20(b)(ii)(B) of the NDPS Act, is questionable and in fact doubtful. 41. In view of these lacuna on the side of the prosecution, this Court is of the considered view that, even though the accused are found to be guilty of the offence under Section 8(c) of the NDPS Act, the punishment awarded against them by invoking 20(b)(ii)(B) of the NDPS Act may not be justifiable. 42. In the result, the impugned Judgment and conviction made against the accused by the trial Court made in C.C.No.292 of 2004, dated 18.05.2012 is hereby modified to the effect that, the punishment undergone already by both the accused A1 and A2 shall be treated as the punishment for the said offences and accordingly both the accused are hereby set at liberty. The bail bond, if any executed by them shall be discharged forthwith and the fine amount if any paid by them need not be refunded. Thus the Criminal Appeal is partly allowed as stated above.