ORDER : (Birendra Kumar, J.) : 1. This is an appeal against judgment of conviction recorded on 02.07.2024 in Sessions Case No.45/2021, whereunder the appellant was found guilty and was sentenced for offence under Section 8/22 of NDPS Act. Rigorous imprisonment of 10 years and a fine of Rs.1,00,000/- was awarded against the appellant and in default of payment of fine, further two years rigorous imprisonment was additionally awarded. 2. The prosecution case is that on 30.09.2020, Mr. Ram Pratap Verma, SHO Hindumalkot Police Station along with his police team was on patrolling near Aam Kotha Khakhan Road. The informant saw the appellant carrying a plastic bag on his shoulder. The appellant was intercepted and from his possession Tramadol Hydrochloride Tablets were recovered. Total weight of the tablets was 3 Kg. 900 Gms. Since the appellant had no license to carry those tablets, the appellant was arrested at the spot and FIR No.240/2020 was registered with Hindumalkot Police Station. The samples were taken out at the spot and since no independent and respectable witness was there, the police constables who were party to the raiding team were made witnesses of the search and seizure. The samples were taken to forensic examination and after expiry of six months the provisions of Section 52 A (2) were said to have been complied. During trial, prosecution examined 12 witnesses of. All are police constables and certain documents were marked as exhibits. 3. The main ground of challenge is non-compliance of the mandate of Section 52 A of the NDPS Act in the matter of preparing inventory, taking photographs of the inventory and taking out samples in presence of the Magistrate in whose presence the aforesaid exercise is to be done according to law. The requirement of compliance of Section 52 A of the NDPS Act to sustain conviction was considered on several occasion by the Hon’ble Supreme Court. Since the exercise under Section 52 A (2) is mandatory for the reason that under Sub-section 4 thereof the same would be taken as primary evidence during trial in respect of such offences even after destruction of the seized contraband, therefore, compliance of Sub-section 2 in true spirit is necessary. 4. The aforesaid provision was considered by Hon’ble Supreme Court in Mangilal Vs. The State of Madhya pradesh reported in 2023 INSC 634 . 4. 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.” 5. 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. 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. 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). 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 Mohanlal2. This creates a serious doubt about the prosecution’s case that the substance recovered was contraband.” 6. 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.” 7. There is apparent non-compliance of mandate of Section 52 A, which should have been done soon after search and seizure and at the time of taking of samples. PW-5, Magistrate Mamta Choudhary has deposed that on 18.02.2021 again the sealed packets were opened in her presence and samples were taken out and inventories were prepared. However, before the exercise done on 18.02.2021, PW-1 is specific that at the place of search and seizure itself the samples were taken out on the date of incident without obtaining service of a Magistrate. PW-8 Shankarlal is also specific that no gazetted officer was present at the time of search and seizure or taking out the samples. PW-9 Balwant Kumar has deposed that on 01.10.2020, the samples for forensic examination were handed over to him which he carried to the senior police officer on 04.10.2020 and to the FSL on 05.10.2020. In the aforesaid circumstance, exercise done by the Magistrate on 18.02.2021 was purposeless. PW-9 Balwant Kumar has deposed that on 01.10.2020, the samples for forensic examination were handed over to him which he carried to the senior police officer on 04.10.2020 and to the FSL on 05.10.2020. In the aforesaid circumstance, exercise done by the Magistrate on 18.02.2021 was purposeless. Unless the seized material would have been destroyed after compliance of Section 52 A (2) of the NDPS Act, the prosecution was bound to produce the seized material before the court during trial which has not been done in the case. 8. In Vijay Jain Vs. State of M.P reported in (2013) 14 SCC 527 as well as in Jitendra & Ors. Vs. State of M.P. vide Criminal Appeal No.1318-1319/2002 decided on 18.09.2003, Hon’ble Supreme Court considered that when the seized contraband were not produced before the court during trial, it was a serious lacuna on the part of prosecution, to doubt the prosecution version. 9. Reverse burden under section 35 and 54 of the NDPS Act would arise only when the prosecution discharges its initial burden especially of compliance of mandates of law. 10. Learned Public Prosecutor submits that substantial compliance of mandates of law is there. There is no material that the police was biased against the accused to falsely implicate. Biasness is a different thing and proof of a case beyond reasonable doubt stands on different pedestal. 11. The case on hand apparently suffers from non-compliance of mandates of law of Section 52 A (2) of NDPS Act coupled with the facts that services of independent and respectable witnesses of the locality was not ensured in casual manner. As such mandates of Sub-section 4 of Section 104 CrPC was also not followed to inspire confidence on the exercise done by the Police party. It is not a mere formality under Sub-section 4 to just make a statement that since witnesses were not available, the prosecution party were engaged as witnesses. The law requires that notice should be given in writing to the persons of locality to be a witness. The provision is for specific reason that non-cooperation in the investigation of the police by any private person, would be an offence, but casual non-compliance of the aforesaid requirements would add to the doubt in the prosecution case. The law requires that notice should be given in writing to the persons of locality to be a witness. The provision is for specific reason that non-cooperation in the investigation of the police by any private person, would be an offence, but casual non-compliance of the aforesaid requirements would add to the doubt in the prosecution case. Once the prosecution did not comply the requirement of Section 52 A, it should have produced the seized material before the court to satisfy the quantity and quality and genuineness of the seized drugs. 12. Due to aforesaid lapses, the prosecution case is doubtful. Benefit whereof must go to the appellant. Hence, conviction of the appellant is hereby set aside. Let the appellant be released at once on execution of bond, that in the event of challenge of this judgment, the appellant shall appear before the appellate Court and cooperate in the proceedings. 13. Accordingly, this criminal appeal stands allowed.