JUDGMENT : Birendra Kumar, J. 1. The sole appellant Triloka Ram faced trial in Sessions Case No.36/2020 for offence under Section 8/21 NDPS Act and was convicted by the impugned judgment dated 07.11.2022 and sentenced as follows:- “15 years rigorous imprisonment and fine of Rs.1,00,000/- and in default of payment of fine further to undergo 3 years simple imprisonment.” The aforesaid conviction and sentence is under challenge in this appeal. 2. The prosecution case is that District Special Team of the police was constituted by the Commissionerate level Police Officer to looking after law and order as well as menace of crime within the territorial jurisdiction. 3. On 26.01.2020, the said team was patrolling near PTM circle Mr. Kanta Singh (PW-1) Inspector of Police was leading the team. Near PTM circle, they noticed a man carrying a carton. At about 2:30 AM, the man was intercepted. He was the appellant and from the carton, 750 tablets of Tramadol Hydrochloride and 2550 tablets of Alprazolam were seized. The appellant had no license to keep and sell those drugs. Hence, the appellant was taken into custody. Samples from the drugs, for forensic examination, were also taken out at the spot and samples as well as the remaining portion were sealed in two different packets in presence of PW-2 Girdawar Singh and PW-3 Papu Ram, the local witnesses. On forensic examination, the drugs were found as tramadol and alprazolam vide a copy of the report as exhibited P/25. 4. Heard the parties and perused the oral and documentary evidences brought on the record. 5. Learned counsel for the appellant contends that there is non-compliance of mandate of law under Section 52 A of the NDPS Act, as neither the service of the Magistrate was ensured nor photographs were taken while effecting the search, seizure and sampling of the so called drugs. Learned counsel next contends that the initiation of the prosecution is itself fishy as two FIRs of the same incident were registered. There is evidence that the written report prepared at the spot was destroyed by the informant at the police station and another report was drafted on the basis whereof FIR No.09/2020 was registered with Mohangarh Police Station against the appellant vide Ex.23. Learned counsel next contends that seizure witnesses have not supported the fact that seizure was made in their presence. Learned counsel next contends that seizure witnesses have not supported the fact that seizure was made in their presence. Learned counsel contends that he is conscious that only for the seizure witnesses getting hostile, the prosecution case cannot be disbelieved, however, in the case on hand PW-12 constable Mukesh Bira, who was member of the Police Team has stated that first the carton was opened and thereafter the seizure witnesses were called upon by Maya Ram. Constable Maya Ram has not been examined in this case to support this fact. The cumulative effect of the aforesaid discrepancy creates doubts on the prosecution case itself. 6. Learned counsel for the respondent contends that 19 prosecution witnesses were examined in this case. Most of them are police officials and were present at the time of search and seizure. No motive against the police is alleged for false implication. Hence, only for the reason that the two prosecution witnesses have turned hostile, the prosecution case cannot be disbelieved. Learned counsel next contends that since search and seizures were made from two different persons on the same date and about the same time, separate FIRs were lodged against the two. If by inadvertence, same number 7/2020 was recorded in both the FIRs, it was necessary to be corrected and was accordingly corrected under order of the superior police officer. Learned counsel next contends that search of the appellant was made in presence of the independent witnesses and other police officials. Though availability of the Magistrate was not there, but otherwise sanctity to the exercise is established by trustworthy evidence of other prosecution witnesses and documents brought on the record in the nature of written consent of the appellant to get himself searched by the informant and sealing of the seized contraband in presence of the police team and the independent witnesses who have signed on the seizure list. 7. From the FIR as well as testimony of PW-1 Kanta Singh, it is evident that the search, seizure and sampling were not made consistent with the requirements of Section 52 A of the NDPS Act. The requirement of compliance of mandates of Section 52 A of the NDPS Act was considered by the Hon’ble Supreme Court in a number of cases. 8. The provision of Section 52 A NDPS Act is being reproduced below:- “52A. Disposal of seized narcotic drugs and psychotropic substances. The requirement of compliance of mandates of Section 52 A of the NDPS Act was considered by the Hon’ble Supreme Court in a number of cases. 8. The provision of Section 52 A NDPS Act is being reproduced below:- “52A. Disposal of seized narcotic drugs and psychotropic substances. — (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where 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 the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic 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) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the 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 samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 9. The aforesaid provision was considered by Hon’ble Supreme Court in Mangilal Vs. The State of Madhya Pradesh reported in 2023 INSC 634 . Para-4, 5 & 6 of the judgment are being reproduced below:- “4. Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter. 5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence. 6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn.” 10. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn.” 10. Prior to that in Union of India Vs. Mohanlal & Anr., reported in AIR Online 2016 SC 770 on consideration of the requirement of Section 52A of NDPS Act, the Hon’ble Supreme Court observed in para 15, 16 & 17 as follows:- “15. It is manifest from Section 52- A(2)include (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 Criminal Appeal No.451 of 2011 and certifying the correctness of the list of samples so drawn. 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. 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 Criminal Appeal No.451 of 2011 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.” (emphasis added). Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal 2. This creates a serious doubt about the prosecution’s case that the substance recovered was contraband.” 11. Yet in Bothilal Vs. Intelligence Officer Narcotics Control Bureau reported in AIR Online 2023 SC 339, the Hon’ble Supreme Court accepted submission of the appellant in para-15 of the judgment, which is being reproduced below:- “15. Admittedly, PW-2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution’s case as this action by the PW-2, was contrary to Section 52-A of NDPS Act.” 12. In the case on hand, the seized articles were not sent to the police station or the officer empowered under Section 53 of the NDPS Act. Only after compliance of the aforesaid requirement, application should have been made to the Magistrate for certifying the correctness of the inventory so prepared, for certifying the photographs of the seizure and inventory prepared at the time of undertaking the exercise and taking out samples in presence of the Magistrate to ensure sanctity and fair play. Only after compliance of the aforesaid requirement, application should have been made to the Magistrate for certifying the correctness of the inventory so prepared, for certifying the photographs of the seizure and inventory prepared at the time of undertaking the exercise and taking out samples in presence of the Magistrate to ensure sanctity and fair play. The non-compliance of the mandates of law makes the prosecution case unworthy of acceptance. 13. The two witnesses of the seizure PW-2 Girdawar Singh and PW-3 Papu Ram have deposed that their signature on the papers were taken at the police station. They have not witnessed the seizure nor do they identify the appellant. Though the prosecution declared these witnesses hostile and got their statement before the police under Section 161 CrPC marked as exhibit, non-support of seizure by the independent witnesses assumes importance in this case, when one of the prosecution witness PW-12 Mukesh Bira on which the prosecution has placed reliance stated that the witnesses came after the cartons were opened and it was noticed that it was containing drugs. Thus, the evidence of PW-12 makes the exercise of search doubtful as it was not made in presence of the independent witnesses, rather it was done prior to the witnesses were called upon. That must be one of the reason why the prosecution withheld constable Maya Ram from the witness box. Prosecution case is that Maya Ram was sent for bringing these two witnesses. If Maya Ram would have appeared in the witness box, his testimony might have gone in favour of the accused. 14. In the peculiar facts and circumstances, non support of the factum of search and seizure by independent witnesses assumes importance and creates doubt on the prosecution case. 15. Another noticeable infirmity in the prosecution case is that two FIRs are there lodged by the same police officer PW-1. FIR No.7 dated 26.01.2020 registered at 9:22 hours (Ex.P/22) reveals that only appellant is named as accused therein. The recitals in the FIR discloses that, first carton of the appellant was seized at the same place and subsequently carton of one Sravan Kumar was also seized at the same place. Sravan Kumar is not named as co-accused. FIR No.7 dated 26.01.2020 registered at 9:22 hours (Ex.P/22) reveals that only appellant is named as accused therein. The recitals in the FIR discloses that, first carton of the appellant was seized at the same place and subsequently carton of one Sravan Kumar was also seized at the same place. Sravan Kumar is not named as co-accused. The FIR further discloses presence of witness Pokar Singh and a police constable as witness of seizure in the matter of Sravan Singh but nothing is disclosed regarding details of the witnesses who witnessed the seizure from the appellant. The FIR of the present case vide FIR No.9 dated 26.01.2020 registered at 9:38 hours relates to recovery from the appellant alone and appellant is named herein also. PW-8 Uma Shanker a constable of Police who claims to be present at the time of search and seizure has admitted in the cross-examination that the FIR which was written at the spot is not available on the record because that was destroyed by the Thanedar and fresh FIR was written at Mohangarh Police Station which is on the record. 16. There is no explanation from the author of the FIR as to under what circumstances, first written report was rejected nor the said report was not brought on the record to establish material changes between the two FIRs and justification thereof. Due to aforesaid infirmity, chances of concoction and deliberations cannot be ruled out. 17. The trial court has not considered the aforesaid infirmity in the prosecution case in correct perspective. Hence, conviction of the appellant is hereby set aside. The appellant is in jail since more than four and half years. Let the appellant be released at once on execution of surety bond, that in the event of challenge of this judgment, the appellant shall appear before the appellate forum and cooperate in the proceedings. 18. Accordingly, this criminal appeal stands allowed.