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2024 DIGILAW 1323 (KER)

Renjith v. State of Kerala

2024-10-16

SOPHY THOMAS

body2024
JUDGMENT : These appeals are at the instance of accused Nos.1 to 3 in CC No.5 of 2005 on the file of Special Judge for NDPS Act cases, Thodupuzha, challenging their conviction and sentence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as the ‘NDPS Act’), as per judgment dated 24.05.2006. 2. The prosecution allegation is that, on 07.01.2002, at 4.30 a.m, while PW1, Forester attached to Kanthalloor Forest Station, was doing vehicle checking duty at Palar checkpost, along with other forest officials, KL-6-9010 jeep came from Koviloor side, and on checking, they found some packets inside the jeep, and when they realised it as ganja packets, they stopped further checking and informed PW2-Deputy Ranger, through wireless message. He came to the spot and conducted search in the jeep, from which, 13 packets of dried ganja weighing 15½ kilograms in total were seized. There were four persons in the jeep including the driver, and all of them were arrested. After taking them to Kanthalloor Forest Station, OR No.3 of 2002 was registered against them. Subsequently, on the basis of their confession statements, A4 was deleted, and three other persons were included, as accused Nos.4 to 6. Thus, final report was filed against six persons, for having committed offences punishable under Section 20(b)(ii)(B) of the NDPS Act. 3. On appearance of the accused before the Special Court, charge was framed against them under Section 20(b)(ii)(B) of the NDPS Act, to which, all of them pleaded not guilty and claimed to be tried. PWs 1 to 4 were examined, Exts. P1 to P13 were marked, and MOs 1 and 2 series were identified. 4. On closure of prosecution evidence, all the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances put to them, and pleaded innocence. According to them, they never possessed ganja and they were not arrested from the place, as alleged by the prosecution. But no defence evidence was adduced. 5. On analyzing the facts and evidence and on hearing the rival contentions from either side, the trial court found A1 to A3 guilty under Section 20(b)(ii)(B) of the NDPS Act and each of them was convicted and sentenced to undergo rigorous imprisonment for four years and fine of Rs.30,000/-, with a default sentence of rigorous imprisonment for six months. 6. On analyzing the facts and evidence and on hearing the rival contentions from either side, the trial court found A1 to A3 guilty under Section 20(b)(ii)(B) of the NDPS Act and each of them was convicted and sentenced to undergo rigorous imprisonment for four years and fine of Rs.30,000/-, with a default sentence of rigorous imprisonment for six months. 6. Accused Nos.4 to 6 were found not guilty and they were acquitted under Section 235(1) of Cr.P.C. 7. Aggrieved by the conviction and sentence under Section 20(b)(ii)(B) of the NDPS Act, the 1st accused preferred Crl.Appeal No.1051 of 2006 and accused Nos.2 and 3 preferred Crl.Appeal No.1086 of 2006. 8. Heard learned counsel for the appellant in Crl.Appeal No.1051 of 2006 and learned State Brief Adv.Sri.Chethan Krishna R for the appellants in Crl.Appeal No.1086 of 2006. Learned Public Prosecutor advanced his arguments in both the appeals, for the respondent-State. 9. Learned State Brief submitted that PW1-Forester was not an empowered officer under Section 42 of the NDPS Act, and so he was not a competent officer to conduct search and seizure. In the case on hand, though PW1 intercepted the vehicle, the search and seizure were conducted by PW2-the Deputy Ranger of Kanthalloor Forest Office. There is no dispute with respect to the fact that, PW2-Deputy Ranger was a competent officer under Section 42 of the NDPS Act. As per S.R.O No.386/96 dated 26.04.1996, Government of Kerala empowered all officers, of and above the rank of Deputy Forest Range Officers of the Forest Department, to exercise all the powers conferred by Section 42 of the NDPS Act. So, obviously, PW2 was an empowered officer, competent to conduct search and seizure under Section 42 of the NDPS Act. 10. The next contention advanced by the appellants is that, there was violation of the statutory mandates under Sections 42(1) and 42(2) of the NDPS Act in conducting search and seizure, which will vitiate the trial. 11. Learned Public Prosecutor would argue that, the search and seizure were conducted in a jeep which was in a public place, and the vehicle was in transit also. So, Section 42 of the NDPS Act has no application, and Section 43 of the Act will apply. But, the evidence is to the effect that the jeep was a private jeep parked near the checkpost by the roadside, when the search was conducted by PW2. So, Section 42 of the NDPS Act has no application, and Section 43 of the Act will apply. But, the evidence is to the effect that the jeep was a private jeep parked near the checkpost by the roadside, when the search was conducted by PW2. There is nothing to show that the jeep was parked in a public place. So, Section 43 of the NDPS Act will have no application. 12. In Boota Singh and others v. State of Haryana [ 2021 (3) KLT 105 (SC) : AIR 2021 SC 1913 ], Hon’ble Apex Court held that, when the jeep was a private vehicle, and it was not a public conveyance, in a parked condition on a kacha road, Section 42 of the NDPS Act will apply for its search. 13. In State of Rajasthan v. Jagraj Singh alias Hansa [ (2016) 11 SCC 687 ], Hon’ble Apex Court held that, compliance with Section 42 is mandatory in a case wherein search was of a private vehicle. So, obviously, in the present case, Section 42 is applicable. 14. Learned counsel for the appellants argued that, the procedural mandates to be followed in a search and seizure were flouted by PW2. Section 51 of the NDPS Act reads thus: “51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.— The provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. This is a general provision under which the provisions of the Code of Criminal Procedure (Cr.P.C, for short) are made applicable to warrants, searches, arrest and seizures under the NDPS Act. Sections 52 and 57 of the NDPS Act provide valuable safeguards to prevent false accusation and fabrication of evidence. Sections 100 and 165 of Cr.P.C lays down the procedures to be followed by the officer conducting search of a closed place. 15. In State of Punjab v. Balbir Singh, 1994 KHC 798], Hon’ble Apex Court observed that, ‘under S.100, Cr. Sections 52 and 57 of the NDPS Act provide valuable safeguards to prevent false accusation and fabrication of evidence. Sections 100 and 165 of Cr.P.C lays down the procedures to be followed by the officer conducting search of a closed place. 15. In State of Punjab v. Balbir Singh, 1994 KHC 798], Hon’ble Apex Court observed that, ‘under S.100, Cr. P.C. the officer conducting search under a warrant should call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search. S.165, Cr. P.C. lays down that whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds of his belief and specifying in such writing, may proceed to search or cause search to be made. S.165(4) lays down that the provisions of this Code as to search warrants and the general provisions as to searches contained in S.100 shall, so far as may be, apply to a search made under S.165 also’. 16. It is no more res-integra, that the irregularity in search cannot vitiate the seizure of the articles, and it will not vitiate the trial also, unless any prejudice has been caused to the accused thereby. Non compliance of the provisions of Section 100 or 165 of Cr.P.C by itself cannot be a ground to reject the prosecution case outright. The effect of such non compliance will have a bearing on the appreciation of evidence of the official witnesses, depending upon the facts and circumstances of each case. While carrying out a search, if the officer come across any substance covered by the NDPS Act, the question of complying with the provisions of the said Act would not arise, at that stage. While carrying out a search, if the officer come across any substance covered by the NDPS Act, the question of complying with the provisions of the said Act would not arise, at that stage. If any contraband is seized during such search, it will attract the provisions of the NDPS Act from that stage alone, and further steps have to be taken in accordance with the provisions of the said Act. 17. PW1-the Forester deposed that, while conducting normal vehicle checking duty at Palar forest checkpost, KL-6-9010 jeep came from Koviloor side, and on checking that vehicle, some packets were seen inside the jeep, and on finding that it was ganja, they immediately stopped further checking of that jeep and informed PW2 through wireless message. Thereafter, search was conducted and ganja was seized by PW2 from that jeep and further proceedings were taken by him as per the provisions of the NDPS Act. 18. It is trite law that compliance of Section 42(1) and 42(2) of the NDPS Act are mandatory and its non-compliance will vitiate the trial. The first step under Section 42 starts with the information received by the empowered officer, or his personal knowledge about commission of an offence under the NDPS Act, and recording the information or the grounds of belief, as the case may be in writing. The next step is to send a copy of the recorded information or grounds of belief to his immediate superior officer. In the present case, PW2-the competent officer, on getting that message, recorded the same in writing and forwarded that information to his immediate superior officer-PW4, who was the Range Officer of Marayoor. Ext.P3 is that information, reduced into writing by PW2. PW4 deposed that, Ext.P3 information was given to him by PW2. 19. Section 41 of the NDPS Act deals with the power of a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specifically empowered by the State Government to issue warrant for arrest, or for search. 20. Section 41(1) of the NDPS Act reads thus: “41. 19. Section 41 of the NDPS Act deals with the power of a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specifically empowered by the State Government to issue warrant for arrest, or for search. 20. Section 41(1) of the NDPS Act reads thus: “41. Power to issue warrant and authorisation.- (1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed”. But Section 42 deals with the power of an empowered officer for entry, search, seizure and arrest without warrant or authorisation. Section 42 of the NDPS Act has two parts. The first part is regarding information and its recording and the second part is regarding the conduct of search. The first part again has two limbs. The first limb is about recording the information received and the other limb is regarding his personal knowledge and recording the reasons for his belief, as to the commission of an offence punishable under the NDPS Act. The second part-search also is of two types; one between sunrise and sunset and the other between sunset and sunrise. For conducting search in a building, conveyance or enclosed place, between sunrise and sunset, going by Section 42(1) of the NDPS Act, no warrant or authorisation is needed, if the empowered officer had recorded the information received, and sent a copy thereof to his immediate superior. But, for conducting search in a building, conveyance or enclosed place, between sunset and sunrise, the second proviso to Section 42(1) has to be followed. 21. But, for conducting search in a building, conveyance or enclosed place, between sunset and sunrise, the second proviso to Section 42(1) has to be followed. 21. The second proviso to Section 42(1) of the NDPS Act reads thus: “Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” 22. The second proviso to Section 42(1) also has two parts; one is reasons for belief of the empowered officer, and the other is recording the grounds of belief. A close reading of the said proviso will show that, for conducting search in a building, conveyance or closed place between sunset and sunrise, normally search warrant or authorisation is to be obtained. The proviso gives an exception to this, only when the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of the offender. In such circumstances, after recording the grounds of belief, the empowered officer can conduct search in a building, conveyance or enclosed place, between sunset and sunrise, without a warrant or authorisation. To put it other way, if the empowered officer has no reason to believe that, by the time search warrant or authorisation is obtained, evidence may be concealed or the offender may have escaped, he cannot conduct a search between sunset and sunrise, without a search warrant or authorisation. So as to conduct search in a building, conveyance or closed place between sunset and sunrise without a warrant or authorisation, the crucial question to be answered is, due to the delay in obtaining the search warrant or authorisation, whether there was any chance for the offender to escape or to conceal the evidence. Only in such cases after recording the reasons for belief, the empowered officer can conduct search between sunset and sunrise in a building, conveyance or closed space without a warrant or authorisation. 23. Learned counsel for the appellants would contend that, the second proviso to Section 42(1) as well as Section 42(2) of the NDPS Act were not complied with by PW2. 23. Learned counsel for the appellants would contend that, the second proviso to Section 42(1) as well as Section 42(2) of the NDPS Act were not complied with by PW2. According to them, before conducting search, the grounds of belief as to the concealment of evidence or facility for escape of the offender was not recorded by PW2. But, according to PW2, he reached the place of occurrence at 8.00 a.m and thereafter only, he conducted search in the jeep. True that PW1 checked that jeep at 4.30 a.m, while doing routine vehicle checking, at Palar forest checkpost. But, the search and seizure as contemplated under Section 42(1) of the NDPS Act was conducted by PW2 only at 8 a.m i.e. between sunrise and sunset. 24. The second proviso to Section 42(1) mandates recording of the grounds of belief, only if the search is conducted between sunset and sunrise, and that too, only when the empowered officer has reason to believe that, a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence, or facility for the escape of an offender. 25. In State of Rajasthan v. Jagraj Singh alias Hansa [ (2016) 11 SCC 687 ], Hon’ble Apex Court held that Section 42(1) indicates that any authorised officer can carry out search between sunrise and sunset without warrant or authorisation. The scheme indicates that, in the event the search has to be made between sunset and sunrise, the warrant would be necessary, unless the officer has reasons to believe that, a search warrant or authorisation cannot be obtained without affording opportunity for concealment of evidence or escape of the offender. In such circumstances, the grounds of his belief have to be recorded, and a copy of the same has to be forwarded to the immediate superior officer, within 72 hours, as envisaged under Section 42(2) of the NDPS Act. 26. In such circumstances, the grounds of his belief have to be recorded, and a copy of the same has to be forwarded to the immediate superior officer, within 72 hours, as envisaged under Section 42(2) of the NDPS Act. 26. In the case on hand, the search was conducted between sunrise and sunset and moreover, there was no reason to believe that a search warrant or authorisation could not have been obtained, without affording opportunity for the concealment of evidence or facility for the escape of the offender, as the jeep containing the ganja packets and the persons who were in that jeep, were in the checkpost itself, under the surveillance of PW1, till PW2 reached there for conducting search, as deposed by the witnesses. So, the second proviso had no application at all in this case and so much so there is no violation of the second proviso. When there was no reason to believe concealment of evidence or escape of the offender, there was nothing to be recorded as per the second proviso, and if so, there was no question of sending a copy thereof to the immediate superior. So, in the present case, there was no violation of Section 42(2) of the NDPS Act also. 27. PW2-the empowered officer was competent to conduct the search, even without a warrant or authorisation envisaged under Section 41 of the NDPS Act, as the search was conducted between sunrise and sunset and as he had recorded the information in writing, and forwarded the same to PW4-his immediate superior. There was no need to record the reasons for belief as per the second proviso, as the search was conducted between sunrise and sunset, and moreover there was no reason to believe concealment of evidence or escape of the offender since the vehicle along with the contraband, and the accused were already under the surveillance of forest officials in the checkpost. 28. 28. When search is to be conducted between sunset and sunrise, and there were grounds for believing that, the delay in obtaining search warrant or authorisation may result in concealment of evidence or escape of the offender, then of course, search can be conducted in a building, conveyance or closed space after recording the grounds of belief as per the second proviso to Section 42(1), and as per Section 42(2), the grounds of belief recorded has to be forwarded to the immediate superior within 72 hours. So, we have to conclude that in the present case, there was no violation of Section 42(1), the provisos thereto or of Section 42(2) of the NDPS Act, so as to vitiate the trial. 29. The appellants would contend that, no sample was taken at the spot as directed under Standing Order 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau. Paragraph 1.5 of that Standing Order reads thus: “1.5 Place and time of drawal of sample.- Samples from the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot”. 30. Pari Materia with Standing Order 1/88 is the Standing Order No.1/89 dated 13.06.1989 issued under sub section (1) of Section 52A of the NDPS Act by the Department of Revenue, Ministry of Finance, Government of India. Section II provides for general procedure for sampling, storage etc. Paragraphs 2.1 and 2.2 of Section II read thus: 2.1 All drugs shall be properly classified, carefully, weighed and sampled on the spot of seizure. 2.2 All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 31. Although new notification published on 23.12.2022 repeals Standing Orders 1/88 and 1/89, thereby clarifying and removing the ambiguity, by mandating drawal of sample to be carried out as per Section 52A clause (2) of NDPS Act, the same cannot be applied retrospectively. 31. Although new notification published on 23.12.2022 repeals Standing Orders 1/88 and 1/89, thereby clarifying and removing the ambiguity, by mandating drawal of sample to be carried out as per Section 52A clause (2) of NDPS Act, the same cannot be applied retrospectively. In the decision Noor Aga v. State of Punjab and another, (2008) 16 SCC 417 ], Hon’ble Apex Court held that, executive instructions and guidelines issued, should not only be substantially complied with, but also, in a case involving penal proceedings, vis-a-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefore, it becomes obligatory on the part of the subordinate authorities to comply therewith. 32. Learned counsel for the appellants would contend that, since the incident in this case occurred on 07.01.2002, Standing Orders 1/88 and 1/89 were holding the field and the guidelines mentioned therein should have been substantially complied with, by PW2 as well as the investigating team. But, in the present case, no sample was drawn at the spot and that is evident from Ext.P1 mahazar itself. PW2 admitted that, in Ext.P1 mahazar, it is not mentioned that sample was drawn at the spot. The process of sampling also will not find a place in Ext.P1 mahazar. So, according to the appellants, there was major violation of the guidelines in the Standing Orders, which will vitiate the trial. The guidelines in the Standing Orders cannot be violated, and its substantial compliance must be insisted upon. 33. PW2, the Deputy Ranger, deposed that, two samples were taken from each packet and MO1 series are the sample packets (26 in number). He further stated that, seal was affixed on each sample packet and also on MO2 series which are the packets, after taking the sample. As already found, the drawal of sample from the packets or its sealing will not find a place in Ext.P1 mahazar. It is not mentioned in the mahazar that the samples were sealed at the spot of seizure itself, or about the nature of the seal, used for sealing the sample packets. As already found, the drawal of sample from the packets or its sealing will not find a place in Ext.P1 mahazar. It is not mentioned in the mahazar that the samples were sealed at the spot of seizure itself, or about the nature of the seal, used for sealing the sample packets. The specimen impression of the seal, if any, used by PW2, to seal the sample packets, will not find a place in Ext.P1 mahazar. PW2 would say that, he was ignorant about the necessity to state in the mahazar, about the sampling done at the spot of seizure. So a genuine doubt is created in the mind of the court, regarding the sampling done at the place of seizure. Moreover, since the seal used for sealing the sample is not affixed in the seizure mahazar, it will cast a serious doubt as to whether the sample drawn and sealed at the time of preparing the mahazar, was the sample which reached the lab for analysis. So prosecution failed to prove the link evidence. 34. In Ext.P1 mahazar, it is stated that, the dried Ganja packets seen in the jeep were taken into custody, and it was weighing ‘about 15kg’. The case of PWs 1 and 2 is that the ganja seized from the jeep was accurately weighed as 15½ kg and samples also were drawn, each weighing 50gms. If so, the weight of dried ganja shown in Ext.P1 mahazar might not have been mentioned as ‘about 15 kg’. 35. PW4, the Range Officer of Marayoor before whom the accused and the contraband were produced on 07.01.2002 at 2 p.m, deposed that, he weighed the Ganja after it was being produced before him. If the seized Ganja was weighed at the time of seizure itself and sample was drawn in 26 packets, each containing 50gms, there was no probability or possibility for PW4 to weigh it again at his office. That fact also supports the case of the appellants that no sample was drawn at the time of seizure and the Ganja was not weighed from the place where it was seized. 36. In the remand application of accused Nos.1 to 4, it is mentioned that the ganja seized was having weight of 15½ kg. But, in the property list produced along with the remand report, the weight of ganja is stated as ‘about 15kg’. 36. In the remand application of accused Nos.1 to 4, it is mentioned that the ganja seized was having weight of 15½ kg. But, in the property list produced along with the remand report, the weight of ganja is stated as ‘about 15kg’. If the ganja was accurately weighed by PW2 at the spot of seizure, and by PW4 at his office, there could not have been any doubt as to the correct weight of ganja seized. But, in some documents it is stated as 15½ kg, and in some other documents, it is stated as ‘about 15kg’. Prosecution failed to explain that discrepancy, satisfactorily. 37. The original wrappers used for wrapping the Ganja packets were not produced before court, along with the contraband. In Noor Aga v. State of Punjab and another cited supra, Hon’ble Apex Court reiterated the necessity for complying with the guidelines under the Standing Orders made under the statute. Para 3.1 of Standing Order 1/89 speaks about preparation of inventory, which reads thus: “3.1. After sampling, detailed inventory of such packages/containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes”. 38. PW1-the Forester deposed that, when the Ganja packets were taken from the jeep, it was in a plastic cover wrapped in newspaper. But, no such newspaper was seen produced before court. So, the guidelines in paragraph 3.1 of Standing Order 1/89 were not complied with, without any explanation for the same. 39. Learned counsel for the appellants contended that, there was inordinate delay in producing the contraband before the court as well as before the chemical examiner’s lab. According to PW4, the contraband was produced before the Magistrate on 08.01.2002 and it was returned by the Magistrate to be produced before NDPS court, Thodupuzha. There is no endorsement in the property list produced before the Magistrate along with the remand application of accused, to show that the contraband articles were returned on 08.01.2002, with a direction to produce it before NDPS court, Thodupuzha. The remand order will show that, the direction was only to produce the accused before the NDPS court, Thodupuzha on expiry of the remand period on 19.01.2002. Ext.P8, the property list, shows that, the contraband article along with the sample packets were produced before NDPS court only on 16.01.2002. The remand order will show that, the direction was only to produce the accused before the NDPS court, Thodupuzha on expiry of the remand period on 19.01.2002. Ext.P8, the property list, shows that, the contraband article along with the sample packets were produced before NDPS court only on 16.01.2002. If it was received back from the Magistrate court on 08.01.2002, the delay of 8 days in producing the contraband before the NDPS court stands without any explanation. 40. When the contraband was produced before the NDPS court on 16.01.2002, the specimen impression of the seal on the sample packet was not produced and the Ganja packets were not properly described. So, the contraband and other articles produced as per Ext.P8 property list, were returned on 16.01.2002 by the NDPS court. But, it was re-produced only on 21.01.2002, with a delay of 5 days, for which also no explanation is coming up. 41. Prosecution failed to show, under whose custody the contraband was kept, from 07.01.2002 till 21.01.2002. The sample reached the lab only on 05.04.2002. As per clause 1.13 of Standing Instruction 1/88 issued by Narcotics Control Bureau, the samples must be dispatched to the laboratory within 72 hours of seizure, to avoid any legal objection. In the case on hand, instead of 72 hours, the sample reached the lab after about two months, and that delay is not explained by the prosecution. When there is inordinate delay in producing the contraband before court, without proper explanation for the delay, and no evidence is adduced to show who was keeping the contraband till such time, and under what condition, it is a strong circumstance to doubt the genuineness of the sample, and the credibility of the prosecution case. 42.Learned counsel for the appellants pointed out that, in the arrest memo of accused, alleged to have been prepared at the place of search and seizure, the crime number is noted, which will negate the case of prosecution, that the accused were arrested at the time of search and seizure itself. According to the appellants, they were arrested only after registering a crime against them, and that is why, in the arrest memo, the crime number also is mentioned. The crime number seen in Ext.P5 series arrest memos and inspection memos, supports the case of the appellants, that they were arrested after registering a crime against them. 43. According to the appellants, they were arrested only after registering a crime against them, and that is why, in the arrest memo, the crime number also is mentioned. The crime number seen in Ext.P5 series arrest memos and inspection memos, supports the case of the appellants, that they were arrested after registering a crime against them. 43. In Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another [ 2020 (4) KLT 188 = 2020 (3) KHC 715 ], this Court held that, crime number mentioned in the arrest memo without offering any explanation by the prosecution, creates doubt regarding the manner in which the seizure and arrest were effected. If the accused persons were arrested at the time of search and seizure itself, the arrest memo and inspection memo will be prepared then and there, contemporary to the seizure mahazar. If such a document bears the crime number, which is registered subsequently at the office, it is a genuine ground to infer that, the arrest memo and inspection memo were prepared at the office itself, that too after registering the crime. So also, the prosecution case, that the accused were arrested at the time of search and seizure, becomes doubtful. 44. In Ext.P1 mahazar, no independent witnesses were cited. Though the checking of the vehicle was at 4.30 a.m, the search was conducted after 8 a.m and the preparation of mahazar was over, only by 12 noon as seen from Ext.P1. It is difficult to believe that from 8 a.m to 12 noon, no independent witnesses could be secured to sign the mahazar, especially in a checkpost where numerous persons will be commuting during day time. In the mahazar, one forest Watcher had signed as a witness, but he is not cited as a charge witness. 45. The prosecution is duty bound to establish the case beyond reasonable doubt and not on preponderance of probability, especially when the NDPS Act carries a reverse burden of proof under Section 35 and Section 54 of the Act. The stringent provisions under the NDPS Act demand the prosecution to establish its case beyond reasonable doubt, and only thereafter the burden of proof shall shift to the accused. The circumstances narrated above are sufficient enough to doubt the credibility of the prosecution case, the benefit of which shall go to the appellants. 46. The stringent provisions under the NDPS Act demand the prosecution to establish its case beyond reasonable doubt, and only thereafter the burden of proof shall shift to the accused. The circumstances narrated above are sufficient enough to doubt the credibility of the prosecution case, the benefit of which shall go to the appellants. 46. Adverting to the facts and circumstances discussed above, this Court is of the view that, prosecution failed to prove its case beyond reasonable doubt. So, the conviction and sentence of the appellants under Section 20(b)(ii)(B) of the NDPS Act are hereby set aside, and they are acquitted and set at liberty forthwith. Their bail bonds shall stand cancelled. Accordingly the appeals stand allowed.