JUDGMENT (Prayer: This Criminal Appeal has been filed under Section 374(2) Cr.P.C. r/w. 36-B of NDPS Act 1985 to set aside the conviction of the appellant in C.C.No.42 of 2018 dated 23.06.2022 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai by allowing this appeal.) 1. Challenging the impugned order dated 23.06.2022 passed in C.C.No.42 of 2018 by the learned Special Judge, I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai, this present criminal appeal has been filed. 2. The prosecution case is that on 06.03.2017 on receiving secret information that a courier parcel containing narcotic drug booked by the M/s.S.T.Courier from Madurai to Chennai vide booking No.52379864386 dated 04.03.2017 in the name of accused Palani addressed to JPS Building- IOA Complex, No.69 Thiruvika High Road, Royapettah High Road, Landmark Ajantha Bus Stop, Chennai – 6000 014 was likely to be received by the accused Palani. The respondent Directorate of Revenue Intelligence Officials went to the place and intercepted the accused, who received the Courier Parcel and on examination, found that the parcel contained 940 grams of Opium, thereafter, they seized the Opium, arrested the accused and registered the case under Sections 8 (c) r/w 18 (c) and 8(c) r/w 28 of the NDPS Act, 1985. After investigation, filed the final report, which was taken on file in C.C.No.42 of 2018. 3. In the trial Court, the prosecution examined eight witnesses P.W.1 to P.W.8 and marked eighty two documents Exs.P1 to P82 and produced four material objects M.O.1 to M.O.4. On the side of the accused, no oral, documentary evidence and material objects were produced. 4. The trial Court, after recording the prosecution witnesses and on completion of the trial and after considering the evidence, found not guilty for the offence under Section 8 (c) r/w 28 of NDPS Act and acquitted the accused but found guilty for the offence under Section 8 (c) r/w 18 (c) of NDPS Act and sentenced him to undergo Rigorous imprisonment for a period of 3 years and to pay a fine of Rs.25,000/- in default to undergo Rigorous imprisonment for a period of 3 months. Aggrieved by this conviction and sentence, the accused filed this criminal appeal and challenged the impugned judgment herein. 5. Aggrieved by this conviction and sentence, the accused filed this criminal appeal and challenged the impugned judgment herein. 5. The learned counsel for the appellant/accused submitted that the judgment of the trial Court is against law and weight of evidence and probabilities of the case. Further contended that the mandatory requirement of the provision under Section 42 of NDPS Act is not complied with and the entire seizure is vitiated. There is no evidence to prove that the accused is in possession with conscious knowledge of Opium. The prosecution failed to examine Thiru.Manojkumar, he alone intercepted and according to the prosecution, he intercepted, seized the parcel and prepared the mahazer. There are a lot of contradictions in the prosecution witnesses. Further, from the seized contraband, the police have taken three samples. In the samples, P1 S1 and P1 S2 the chemical report found no Opium and only in P1 S3 the chemical report shows that the third sample alone is Opium. When the three samples are taken from the seized 940 grams of Opium, with regard to P1 S1, P1 S2, the chemical report is negative and P1 S3 alone positive. It raises a serious doubt about the truthfulness of the prosecution case. The trial Court failed to consider these facts and failed to appreciate the fact properly and found guilty and convicted the accused and this conviction is liable to be set aside. There is no evidence to prove the offence against the accused and thus, pleaded to acquit the accused. 6. The learned Special Public Prosecutor for DRI submitted that the prosecution examined eight witnesses and marked eighty two documents and filed four material objects. The prosecution proved the charge against the accused beyond the reasonable doubt. The presumption under Sections 35 & 54 of the Act are not sufficiently rebutted by the accused. The trial Court rightly found guilty and convicted the accused. There is no ground to interfere with the finding of the trial Court and thus, pleaded to dismiss the criminal appeal. 7. I have considered the matter in the light of the submissions made by the learned counsel for the appellant as well as the learned Special Public Prosecutor for the respondent. 8. On perusal of the prosecution witnesses and the documentary evidence, it is seen that Gopalakrishnan (PW7) is the delivery boy of S.T. Courier office. 7. I have considered the matter in the light of the submissions made by the learned counsel for the appellant as well as the learned Special Public Prosecutor for the respondent. 8. On perusal of the prosecution witnesses and the documentary evidence, it is seen that Gopalakrishnan (PW7) is the delivery boy of S.T. Courier office. According to the prosecution, Gopalakrishnan (PW7) on 06.03.2017 brought the Courier parcel to JPS Building, IOA Complex, Royapettah High Road in the name of the accused Palani. According to his evidence, when he went to the delivery place, he found the accused Palani was not available. Hence, he contacted Palani through the mobile number mentioned in the parcel. The accused Palani informed the delivery boy to wait there, he will come within 5 to 10 minutes. Thereafter, Palani came to the spot and he delivered the parcel immediately the prosecution officer intercepted and seized the parcel. The respondent officer one Manojkumar prepared mahazer and etc., but he was not examined as a prosecution witness. There is no proper explanation for the non examination of Manojkumar. 9. Further, a perusal of Mahazer Ex.P53 reveals that in the mahazer, one witness Ethiraj and another witness Murugan signed but they were not examined as witnesses. Another person shown in the mahazer is one K.Sreenivasulu, he was also not examined in this case. The remaining signed person is M.Palani accused. It is clear that though the persons mentioned in mahazer Ex.P53, no one was examined as a witness. One signed person is accused Palani. The prosecution has not adduced any explanation for non examination of any of the witnesses to the mahazer Ex.P53. Therefore, Ex.P53 mahazer was not proved by the prosecution by examining any one of the witnesses therein. The prosecution witness PW1 G.Suresh Kumar came to his office on 06.03.2017 at 2.00p.m. and participated in the further proceedings in this case. In this regard, his evidence runs as follows: 10. Another officer Thiru.Boominathan (PW2) had information about the seizure on 06.03.2017 at 1.20 p.m. through his higher officer Bharthidasan and he participated on his instructions in the further proceedings. The alleged courier parcel mentioned Thiru.Jayaprakash Antony (PW3) name also. He disclaimed the courier parcel and spoke about the acquaintance of the accused Palani with him and also signed the mahazer prepared by the prosecution officers at the office. The alleged courier parcel mentioned Thiru.Jayaprakash Antony (PW3) name also. He disclaimed the courier parcel and spoke about the acquaintance of the accused Palani with him and also signed the mahazer prepared by the prosecution officers at the office. Mr.Dr.T.C.Tanwar (PW4) Chemical Examiner Grade-I, Jawaharlal Nehru Custom House, Laboratory Nhava Sheva, Maharastra examined the chemicals and gave the report along with cover Ex.P18, the Lab Report dated 26.12.2017 is P19. Mr.Niraikulam (PW5) conducted enquiry with regard to Courier address at Madurai and found the address place was locked and send the letter dated 17.04.2017. Ex.29. Mrs.Anuradha (PW6) is working as Superintendent of Customs at Trichy International Airport. while she was working as Inspector of Central Excise at HeadQuarters, Preventive Unit, Salem, on receiving a letter from DRI, Chennai, she conducted enquiry at Dharmapuri District with regard to the seizure of 940 grams of Opium and sent a letter dated 22.06.2017, covering letter dated 07.07.2017 and mahazer along with annexures Exs.P30, 31 and 32. Mr.R.Rajesh (PW8) deposed about the acquaintance of signature of Manojkumar and deposed about the seizure of the Opium and marked documents Ex.P42 to Ex.P64. In his evidence, he deposed that in the samples P1 S1 and P1 S2, Opium is not found as per the chemical report. His evidence runs as follows: 11. With regard P1 S2, his evidence runs as follows: Therefore from his evidence the sample P1 S1 and P1 S2 did not contained Opium. Only in P1 S3 as per the report, Opium is found. In this regard, his evidence is as follows: 12.The prosecution evidence shows that the Courier parcel had been seized as per Ex.P53 by Manojkumar, prosecution officer in the presence of witnesses Ethiraj, Murugan and in the presence of Gopalakrishnan (PW7) Courier boy and Sreenivasalu Department officer and the accused Palani also signed. For delivery of the parcel, the prosecution relied upon the evidence of Gopalakrishnan (PW7). I have carefully gone through the evidence of Gopalakrishnan (PW7) and in his evidence before the Court, he stated that when he went to JPS building -IOA Complex, Royapettah High Road, on 06.03.2017, he found the shop was closed, so, he contacted the person Palani through mobile phone, he informed to wait for 5 – 10 minutes and also deposed in the parcel another phone number was found. The officer contacted Jayaprakash (PW3) thereafter seized the parcel under Mahazer at about 10.45 a.m. and completed the process at 1.15 p.m. His evidence runs as follows: 13. I have gone through the evidence of Jayapraksh Antony (PW3). In the evidence, he had stated that on 06.03.2017 he was at Cuddalore. Around 11.30 a.m. he got a call from Palani (accused), he told him that he had just received a parcel bearing his name and my name Jayaprakash which was sent by Pesumai of Madurai. For that, I told him that I (Jayaprakash) did not order any parcel from that person and did not open the parcel as it may contain a bomb. Few minutes later, DRI officer Spoke to me (Jayaprakash) and requested me to come to the DRI office. His evidence runs as follows: “.......On march 6th 2017 Monday my shop at Royapettah was closed. At that time, I was in Cuddalore. Around 11.30 a.m. I got a call from Mr.Palani. He told me that he had just received a parcel bearing his name and my name which was sent by Pesumai of Madurai. I told him that I did not order any parcel from that person. I told him not to open the parcel as it may contain a bomb. And I told him to call the mobile number of the sender of the parcel and asked for the real addressee. After few minutes a DRI Officer spoke to me and told me to come immediately to DRI T.Nagar Officer, Chennai. I started immediately and reached the DRI office around 5.30 p.m. On that day. I introduced myself by showing my Identity Card to the officers of DRI. The said officers enquired me about the said parcel. I told them that I did not ordered any parcel from the said sender of the parcel. . . . .” 14. From his evidence, it is seen that around 11.30 a.m. the accused Palani contacted Jayaprakash in the presence of officers, where at around 11.30 a.m. he received the parcel, but as per the evidence of Gopalakrishnan (PW7) the officers intercepted and received the parcel at 10.45 a.m. It creates a doubt when the parcel has been seized by the officers and seizure officer Manojkumar was not examined in this case. Further, the other witnesses also not examined for the seizer except Gopalakrishnan (PW7) and the accused Palani. Further, the other witnesses also not examined for the seizer except Gopalakrishnan (PW7) and the accused Palani. Under these circumstances, Ex.P53 First mahazer becomes doubtful, it is not proved by the prosecution beyond reasonable doubt. 15. Further, as per the evidence of G.Suresh Kumar (PW1), from the seized 940grams Opium, they have taken three samples as P1 S1, P1 S2, & P1 S3 among the three samples, in the two samples P1 S1 & P1 S2 the chemical examination report is negative. It did not contain Opium as per the evidence of Rajesh (PW8) and the chemical report Ex.P67 & Ex.P77. The evidence of G.Suresh Kumar (PW1) with regard to taking samples from 940grams runs as follows: 16. The evidence shows from the seized Opium totalling 940 grams. The respondent officers took three samples each 25 grams as P1 S1, P1 S2, & P1 S3 and on chemical examination, two samples P1 S1 & P1 S2 did not find Opium and only found Opium in one sample P1 S3 alone. It creates a serious doubt about the genuineness of the prosecution case. Samples are taken from the same seized 940 grams Opium from the accused and all the samples ought to be contained Opium but in this case, in two samples S1 P1 and S1 P2 Opium is not found and one sample P1 S3 alone Opium is found. It creates a serious doubt about the prosecution case. Hence, the accused is entitled to benefit of doubt. 17. The fundamental principle upon which the administration of justice on the criminal side is founded that an accused person must be presumed to be innocent until the contrary is proved by credible and legal testimony beyond reasonable doubt. It cannot be replaced by any presumption created by any statute. The cardinal principle is the bedrock of our system, from which, no departure is permissible. 18. An order of conviction can be based only on legal evidence and not on hypothetical propositions or unwarranted inferences. Surmises and suppositions cannot take the place of legal proof in a criminal trial and suspicion, however grave, cannot sustain a criminal charge. In the absence of legal proof, there can be no legal criminality (Gunanidhi Sundara vs State Of Orissa (1984 Criminal Law Journal 1215). 19. Surmises and suppositions cannot take the place of legal proof in a criminal trial and suspicion, however grave, cannot sustain a criminal charge. In the absence of legal proof, there can be no legal criminality (Gunanidhi Sundara vs State Of Orissa (1984 Criminal Law Journal 1215). 19. In this case, the seizure of the parcel from the accused is not proved beyond the reasonable doubt besides the seized two samples are not found Opium. The trial Court failed to consider the evidence properly and passed a conviction order without any legal evidence, hence, it is liable to be set aside and the accused is entitled for acquittal. 20. In the result, the criminal appeal is allowed and the accused is acquitted from the abovesaid charge. The Superintendent, Central Prison, Puzhal, Chennai is directed to set the appellant at liberty forthwith, if his further detention is no longer required in connection with any other case or proceedings. Consequently, connected miscellaneous petition, if any, is closed.