JUDGMENT : DEVASHIS BARUAH, J. 1. Heard Mr. D. Panging, learned counsel for the appellant and Mr. U. Bori, learned Addl. Public Prosecutor for the State respondent. 2. The instant appeal arises out of the judgment and order dated 18.07.2018, passed by the Special Judge (NDPS Act) in NDPS Case No. 6/2016 whereby the appellant along with one Mr. Ranjit Goya were held liable for punishment under Section 20(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1965 (for short ‘the NDPS Act’) and thereby sentenced to undergo rigorous imprisonment for 10(ten) years and fine of Rs. 1,00,000/- (rupees one lakh), in default of payment of the fine to undergo rigorous imprisonment for a further period of 6(six) months. 3. As per the prosecution’s case, on 27.02.2016 at 13:00 hours, a written FIR was received at P.S. Balemu from one Sailesh Kumar, Assistant Commandant 61st Bn. SSB Headquarters at Bhairobhkunda (Assam), inter alia, alleging that during special operation/Naka duty by ‘D’ coy of 4200 Chain 10 Yelloripum, Balemu Circle, 125 Kgs (approx) ganja (cannabis) was seized with 2(two) persons apprehended at 0500 hours on 27.02.2016. The Officer-in-Charge, P.S. Balemu registered the FIR vide BLM/PS/C/No. 08/16 under Section 20(B) of the NDPS Act. It was the further case of the prosecution that the Investigating Officer examined the complainant and the witnesses by recording the statements under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). The Investigating Officer seized approximately 125 Kgs of ganja on being produced by the complainant, thereafter, took small quantity from the seized gunny bags in order to gather the forensic/scientific opinion and sent the samples to FSL, Banderdewa for laboratory testing. The FSL report dated 04.07.2016 confirmed that the samples so sent had an active constituent of well known cannabis sativa plant commonly known as ganja. On the basis of the investigation being carried out and the FSL report received, a charge sheet was filed on 27.07.2016 bearing CS No. 10/2016 under Section 20(B) of the NDPS Act against the appellant as well as another accused. The Court below, thereafter, took cognizance of the offence against the appellant as well as one Mr. Ranjit Koya. 4. On the basis of the investigation being carried out and the FSL report received, a charge sheet was filed on 27.07.2016 bearing CS No. 10/2016 under Section 20(B) of the NDPS Act against the appellant as well as another accused. The Court below, thereafter, took cognizance of the offence against the appellant as well as one Mr. Ranjit Koya. 4. It further appears from the record that on 24.11.2016, the Court framed charge under Section 20(B) of the NDPS Act against the accused persons which upon being read over and explained, the appellant along with the co-accused denied accusation and claimed to stand trial. The prosecution in order to bring home the charge against the accused persons examined as many as 7(seven) witnesses including the Investigating Officer. The accused were also examined under Section 313 of the Code. The accused did not adduce any witnesses in their defence. The Court below vide a judgment and order dated 18.07.2018 upon appreciation of the evidence convicted the appellant along with the co-accused under Section 20(ii)(C) of the NDPS Act and awarded the sentence as already indicated herein above. 5. Aggrieved by the said judgment and order, the appellant preferred the instant appeal. 6. The learned counsel for the appellant submitted that from the evidence on record, it would be apparent that the prosecution failed to establish prima facie case beyond reasonable doubt that the appellant was in conscious possession of the alleged contraband, inasmuch as, per the learned counsel for the appellant the materials placed on record would show that the alleged seizure of the contraband were carried out in a forest and the appellant along with another were apprehended. The learned counsel submits that there are no materials on record to show that the appellant was in possession of the alleged seized contraband. The learned counsel further submits that Section 52A of the NDPS Act was not complied with and in view of the said non-compliance, the entire case of the prosecution fails. He submitted that admittedly, the samples were not taken at the place of recovery as well as also under the supervision of the Magistrate. He, therefore, submits that the prosecution failed to prove beyond reasonable doubt that the alleged cannabis which was opined to be cannabis sativa vide P/Ext. 9 was in fact the same goods apprehended by the complainant as stated in the FIR. He, therefore, submits that the prosecution failed to prove beyond reasonable doubt that the alleged cannabis which was opined to be cannabis sativa vide P/Ext. 9 was in fact the same goods apprehended by the complainant as stated in the FIR. He further submitted that on 04.07.2016, the report was given by the FSL that the samples confirmed to cannabis sativa as could be seen from P/Ext. 9 but referring to P/Exts. 10 and 11, the learned counsel for the appellant submitted that even before the opinion was obtained as to whether the materials seized in question were ganja or not, an order was passed by the Circle Officer on 29.06.2016, whereby a committee was formed of officer of public representatives of the Balemu Circle for disposal of unclaimed ganja on 05.07.2016 which included the materials seized in connection with Case No. 8/2016. He further submits that a perusal of P/Ext. 11 which is the destruction certificate issued on 05.07.2016, it was certified, inter-alia, that the materials seized in respect to BLM/PS/C/No. 08/2016 under Section 20(B) of the NDPS Act weighing 125 Kgs was destroyed. He, therefore, submits that the FSL report dated 04.07.2016 even before having received by the Investigating Officer, the authorities have already taken the decision to destroy the same. Having destroyed the same, the same was not placed before the trial Court which has vitiated the entire trial. Referring to Section 52A and 55 of the NDPS Act, the learned counsel, therefore, submits that it was the responsibility of the Officer-in-Charge of the police station to keep in safe custody the seized materials pending orders of the Magistrate. He, therefore, submits that not only there was no order of the Magistrate for the purpose of destruction of the materials but also there was no evidence led by the prosecution as to when they received the FSL report (P/Ext. 9) before destroying the alleged seizure. 7. On the other hand, the Addl. P.P. submitted that the materials on record, more particularly the evidence of PW-5 would show that the ganja was recovered at the place of occurrence from the possession of the accused. 9) before destroying the alleged seizure. 7. On the other hand, the Addl. P.P. submitted that the materials on record, more particularly the evidence of PW-5 would show that the ganja was recovered at the place of occurrence from the possession of the accused. The learned counsel further submitted that the materials on record would show that the prosecution had proved the guilt of the accused beyond reasonable doubt and as such, by virtue of Section 35 and 54 of the NDPS Act, a presumption is raised with regard to the culpable mental state on the part of the accused as also place the burden of proof in that behalf on the accused and the accused having failed to discharge that burden by adducing evidence, the learned Court below had rightly convicted the accused. 8. I have heard the learned counsel for the parties and given my anxious consideration to the matter. 9. Before going into the merits, it would be relevant to take note of as to whether the prosecution has discharged the initial burden. The Supreme Court in the case of Noor Aga vs. State of Punjab, (2008) 16 SCC 417 had dealt with the issue of reverse burden as enshrined in Sections 35 and 54 of the NDPS Act. It was observed that superficially the case may have an ugly look and thereby, prima-facie, shaking the conscience of any Court but it is well settled that suspicion, however high it may be, can under no circumstances, be held to be a substitute for legal evidence. Paragraphs 58 and 59 being relevant are quoted herein-below: “58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” 10. A reading of the above quoted paragraphs of the judgment of the Supreme Court in the case of Noor Aga (Supra) would show that an initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. It was clarified that the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution inasmuch as the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” whereas for the accused it is “preponderance of probability.” It was, therefore, observed that if the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the NDPS Act, the actus reus which is possession of the contraband by the accused cannot be said to have been established. It was further observed that to bring within the purview the requirements of Section 54 of the NDPS Act, element of possession of the contraband was essential so as to shift the burden on the accused. It was further observed that the provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. It was further observed that the provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. Subsequent thereto, in the case of Mohan Lal vs. State of Punjab, (2018) 17 SCC 627 , the Supreme Court at paragraph 12 observed that Sections 35 and 54 of the NDPS Act carries a reverse burden of proof and the said cannot be understood to mean that the moment an allegation is made and the FIR recites compliance to the statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. It was further observed that the stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10(ten) years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation and only after which the burden of proof shall shift to the accused. Paragraph 12 of the said judgment being relevant is quoted herein-below: “12. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the FIR recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima-facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities.” 11. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities.” 11. In the backdrop of the said law enunciated by the Supreme Court, it would be relevant to take note of as to whether the prosecution was successful in shifting the reverse burden upon the appellant by proving the guilt of the accused beyond reasonable doubt by proving the foundational facts so as to attract the rigours of Sections 35 and 54 of the NDPS Act. First and foremost, to attract the provisions of Section 20 of the NDPS Act, contravention in question has to be in relation to cannabis plant and cannabis. Let this Court first take into consideration as to whether the prosecution has been able to prove beyond reasonable doubt that the alleged seizure of the goods was cannabis plant or cannabis. For bringing home the said allegation, the prosecution is required to prove that the substance which was seized was cannabis and/or cannabis plant. The evidence on records shows and more particularly, the evidence of PW-7, who is the Investigating Officer had stated that he took some quantity of ganja as sample for scientific opinion and sent the same to FSL, Banderdewa. He further stated that the Chemical Analyst/Scientific Officer opined a positive result. P/Ext.9 was the FSL report. He further exhibited P/Ext.10 which was the destruction order issued by the then Executive Magistrate, Balemu and P/Ext.11 is the destruction certificate in respect to the seized ganja and destroyed ganja. M/Exts.2 and 3 were the photographs of the destruction of the seized ganja. However, there is nothing on the evidence to show that the Investigating Officer who is the PW7 had taken samples of the alleged ganja in the presence of a Magistrate. At this stage, it may be relevant to take note of Section 52A of the NDPS Act which relates to disposal of seized narcotic drugs and psychotropic substances. However, there is nothing on the evidence to show that the Investigating Officer who is the PW7 had taken samples of the alleged ganja in the presence of a Magistrate. At this stage, it may be relevant to take note of Section 52A of the NDPS Act which relates to disposal of seized narcotic drugs and psychotropic substances. Sub-Section (2) of Section 52A stipulates that when any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the Officer-in-Charge of the nearest police station or to officer empowered under Section 53, the officer referred to in sub-section (1) of Section 52A shall prepared an inventory of such narcotics drugs, psychotropic drugs, controlled substances or conveyances containing such details relating to their description, quality, mode of packing, marks, number or such other identifying particulars of the narcotics drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in Sub-Section (1) of Section 52A may consider relevant to the identity of narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under the Act and make an application to any Magistrate for purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of sample so drawn. Sub-Section (3) of Section 52A further stipulates that where an application is made under Sub-Section (2) of Section 52A to the Magistrate, he shall as soon as may be, allow that application. Therefore, a reading of Sub-Sections (2) and (3) of Section 52A of the NDPS Act, it is the Magistrate who is empowered to certify the correctness of the inventory so prepared or certify such photographs taken in presence of the Magistrate of such drug substances or conveyances or certify the correctness of any list of samples drawn upon permission being granted by the Magistrate to draw representative samples of drugs or substances in presence of the Magistrate. Sub-Section (4) of Section 52A of the NDPS Act is also crucial inasmuch as it is upon certification done in the manner mentioned in Sub-Section (2) that the inventory, photographs and list of samples drawn would be treated as the primary evidence in respect of such offence. The evidence on record, do not in any manner show that the prosecution, more particularly the Investigating Officer had complied with the requirements of Section 52A as nothing could be seen whereby the Magistrate has certified the correctness of the inventory or even certified the photographs taken in presence of the Magistrate or had also certified the correctness of any list of samples so drawn or any permission was taken to draw representative samples of such drugs or substances in presence of the Magistrate. The evidence only shows that the Investigating Officer, on his own, took samples and sent it to FSL, Banderdewa for the opinion. 12. Now in the backdrop of the above, when the statutes specifically mandates drawing of samples in presence of the Magistrate with the certification of the Magistrate that the correctness of the said samples drawn, can it be said that the prosecution has proved that the FSL report P/Ext.9 is in respect to the samples of the alleged cannabis which was seized at the time of apprehending the accused persons. The question as regards compliance to Section 52A of the NDPS Act and its effect at the trial had come up for consideration before the Supreme Court in the case of Union of India of India vs. Mohanlal and Another, (2016) 3 SCC 379 . The relevant paragraphs Nos. 15, 16, 17, 18, 19 and 31.1 for the purpose of the instant case is quoted herein-below: “15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. 16. Sub-Section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction. 19. Mr. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction. 19. Mr. Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a timeframe into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions. 31.1. 31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading “seizure and sampling.” The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order.” 13. It would be seen from a reading of the above quoted paragraphs that the mandate of the law as laid down by the Supreme Court in the above decision is that no sooner the seizure is effected and the contraband is forwarded to the Officer-in-Charge of the nearest police station or to the officer empowered under Section 53 of the NDPS Act, the officer concerned shall then approach the Magistrate with an application under Section 52A(2) of the NDPS Act which shall be allowed by the Magistrate as soon as may be required under sub-Section (3) of Section 52A. The sampling shall be done under the supervision of the Magistrate. This Court is of the opinion that the requirement as stated in the above paragraphs quoted of the judgment of the Supreme Court is a necessity and has to be strictly observed given the seriousness of the offence under the NDPS Act and the punishment prescribed by law in case the same are proved. The sampling of the materials seized as was done in the instant case, was done by the Investigating Officer himself. There is no evidence on record that the inventory was certified or the representative samples drawn were certified. And as such, it is the opinion of this Court that the prosecution has failed to link the alleged seized contraband with P/Ext. 9, which is the FSL report. This is a foundational fact which was required to be proved beyond reasonable doubt to attract the provisions of the NDPS Act and more so, Section 20 of the NDPS Act. 14. 9, which is the FSL report. This is a foundational fact which was required to be proved beyond reasonable doubt to attract the provisions of the NDPS Act and more so, Section 20 of the NDPS Act. 14. The next question which further arises in the instant case is the effect of Section 55 of the NDPS Act, inasmuch as, the evidence on record shows that P/Ext.9 is the FSL report dated 04.07.2016. The order for destruction i.e. P/Ext. 10 which included the alleged seized contraband in question was dated 29.06.2016 and P/Ext. 11 is the destruction certificate dated 05.07.2016 just one day after the FSL report. There is no evidence on record to show that the prosecution after the receipt of the FSL report which was one day prior to the destruction of the seized materials, had destroyed the seized materials. It seems that prosecution had presumed even before receipt of the FSL report that the seized materials were cannabis and as such, without waiting for the report from the FSL, it was decided on 29.06.2016 to destroy the seized materials and consequently, on 05.07.2016, the seized materials were destroyed. At this stage, if this Court takes into consideration Section 55 of the NDPS Act, it would show that the seized articles should be kept in the safe custody of the Officer-in- Charge of the police station and the manner in which it is to be kept has also been stipulated. Now taking into consideration that there was no sampling of the alleged seized contraband in terms with Section 52A of the NDPS Act for which a link could not be established with the samples so drawn with the FSL report i.e. P/Ext. 9 and the destruction of the seized materials as could be seen from P/Ext. 11, there were no materials before the trial Court on the basis of which the trial Court could have come to a finding that an offence under Section 20(ii)(C) of the NDPS Act was committed by the accused. Non-drawing of the samples in presence of the Magistrate as required under Section 52A and the non-production of the seized materials during the trial as such had vitiated the entire trial. Non-drawing of the samples in presence of the Magistrate as required under Section 52A and the non-production of the seized materials during the trial as such had vitiated the entire trial. Consequently, therefore, on the failure of the prosecution to prove the foundational fact that the seized materials were cannabis to attract to offence under Section 20, this Court therefore, set aside and quash the conviction thereby, holding that the appellant is entitled to the benefit of doubt and acquit him of the charges by setting aside the impugned judgment and order passed by the Trial Court. 15. At this stage, it may also be noted that the other accused who was also convicted namely Mr. Ranjit Koya, is not before this Court and there is no reason why the benefit of this judgment may not be extended to him as well. As per the prosecution’s story, the appellant as well as Mr. Ranjit Koya were apprehended along with the seized materials. Both the accused including the appellant were tried together and Mr. Ranjit Koya has also been given the same sentence as that of the appellant. The lapses in the prosecution and the facts and circumstances that have been noted above which had weighed with this Court for setting aside the conviction of the appellant apply equally to the case of Mr. Ranjit Koya and it would be unjust therefore, to let Mr. Ranjit Koya rot in jail even while allowing the appeal preferred by the appellant [See: Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 ] 16. This Court, accordingly, directs that the conviction and sentence of Mr. Ranjit Koya be also set aside and he too along with the appellant be released forthwith unless the appellant or Mr. Ranjit Koya is required in connection with any other case. 17. The appeal is accordingly allowed. Send the LCR to the Court below.