JUDGMENT : (Arun Dev Choudhury, J.) : 1. Heard Mr. N.J. Dutta, the learned counsel for the appellant. Also heard Mr. M. P. Goswami learned Additional Public Prosecutor, Assam, appearing for the State. 2. This appeal is filed assailing the judgment and order dated 22.02.2023, whereby the learned Special Judge (Addl), Dhubri in Special Case No. 213/2022 convicted the appellant under Section 22(c) of the NDPS Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years and also directed to pay fine of Rs. 1,00,000/-(one lakh) in default to undergo simple imprisonment for six months. 3. The prosecution case as unfolded from the materials available on record is to the effect that on 28.01.2022, while the informant was conducting patrolling duty, at about 1.20 pm, a motorcycle rider was detained on suspicion and found six numbers of Phensedyl Cough Syrup (100 ml each), 5 numbers of ESKUF Cough Syrup (100 ml each) and 48 numbers of Nitrosun-10 tablets and cash amount of Rs. 910/-. Accordingly, Golokganj PS case No. 42/2022 under Section 22(c) of the NDPS Act, 1985(herein after referred as Act ,1985) was registered. 4. Upon completion of the investigation, the Investigating Officer had submitted charge sheet against the accused/appellant under Section 22(c) of the Act,1985. 5. Based on the charge sheet submitted by the Investigation Officer, charges were framed against the accused /appellant under Section 22(c) of the Act, 1985. The charges were read out and explained to him but the accused person/appellant had pleaded not guilty and claimed to be tried. Hence, the matter went up to trial. 6. In order to bring home the charges, the prosecution had examined as many as 4 witnesses, who were cross-examined by the defence. Two court witnesses were also examined. The statements of the accused/appellant were recorded under Section 313 Cr.P.C. The defence also adduced as many as two witnesses, who were also cross-examined by the prosecution. 7. Mr. NJ Dutta, the learned counsel for the appellant has argued that from the documentary evidence and the material exhibits, it is clear that no certificate was exhibited in terms of the notification dated 16.01.2015, issued under Section 52A of the Act, 1985, whereby detail procedure for disposal of the narcotic drugs, psychotropic substances, contraband substance and conveyance after their seizure was prescribed and therefore, in absence of such evidence the entire trial shall fail. Alternatively, Mr. Alternatively, Mr. Dutta argues that though the petitioner was held to be guilty under Section 22 (c) of the Act,1985 the contraband seized is admittedly 48 numbers of Nitrosun 10 tablets, which gave positive result of nitrizipum and total weight of 48 numbers of tablets is 2.64 Gms, which is a small quantity as per notification dated 16.07.1996. Therefore, even if it is assumed that the contraband is found in the conscious possession of the contraband, the petitioner would not have been convicted for possessing commercial quantity. Mr. Dutta further contends that there is an unexplained delay of 5 days in sending the samples to the FSL and there is no explanation by the prosecution about the reason of delay and such delay also vitiated the trial. In this context, Mr. Dutta relies on the notification No. GSR.38(E) dated 16.01.2015. Mr. Dutta further relies on a decision of the Division Bench of this Court passed in Crl A (J) 84/2020 (Pinak Shankar Basu Vs. State of Assam). 8. Per contra, Mr. M. P. Goswami, learned Additional Public Prosecutor, Assam argues that the contraband were recovered from the motor cycle of the accused during checking in the market area. From the evidence of PW-1, it is clear that it was a chance recovery and therefore, there is no requirement of fulfilling the provisions of Section 41 and 42 of the Act, 1985. It is further contended by Mr. Goswami, learned Additional Public Prosecutor that from the evidence of PW-2, and PW-3, the prosecution has been able to establish the recovery of the contraband from the possession of the appellant. Thus, the foundational fact has been laid by the prosecution. Mr. Goswami, learned Additional Public Prosecutor further contends that as per Section 52A (2) of the Act, 1985 the seized contraband were handed over to the officer in charge of Golakganj police station. Thereafter, the same were produced before the Chief Judicial Magistrate, Dhubri along with an application for certifying the correctness of the inventory so prepared, allowing to take photographs and certifying the same to be true, certifying the correctness of list of samples. The learned CJM, Dhubri by its order dated 29.01.2022 allowed the application. As per order dated 29.01.2022 the learned CJM, Dhubri certified the list of samples drawn to be correct and certified the inventory list. According to Mr. The learned CJM, Dhubri by its order dated 29.01.2022 allowed the application. As per order dated 29.01.2022 the learned CJM, Dhubri certified the list of samples drawn to be correct and certified the inventory list. According to Mr. Goswami, learned Additional Public Prosecutor the photographs of seized articles/ inventory were taken in presence of the Magistrate, the Magistrate certified them to be correct by putting his signatures. The said order further reveals that the representative samples, photocopy of certified inventory, list of samples and certified photographs were given to the I.O. Thus, the object and mandate of law under Section 52A(2) of the Act,1985 is totally complied inasmuch as the application for certification of inventory, the photographs and sample, (Ext-4/PW-4), Certificate certifying the inventory (Ext-P11/PW-4), Certifying the list of samples (Ext-P12/PW-4), were exhibited. The photographs taken before Magistrate also contain certification that the photographs are certified to be true with seal and signature. According to Mr. Goswami, learned Additional Public Prosecutor though everything as required under Section 52A(2) of the Act,1985 is exhibited as evidence in the trial, the defense fail to contradict the same in cross examination and the evidence brought forth under Section 52A(2) of the Act,1985 remain unshaken and uncontroverted. 9. According to Mr. Goswami, learned Additional Public Prosecutor through the evidence of CW-2, the prosecution has been able to establish that the samples of contraband were sent to the FSL in sealed condition and the FSL report gives positive results of codeine phosphate. Thus, the prosecution has been able to establish this aspect as well as the there is no challenge to the FSL report throughout the trial by the defence. 10. As regards the quantity, Mr. Goswami, learned Additional Public Prosecutor argues that along with the tablets five bottles of Eskuf Cough Syrups and six bottles of Phensedyle Cough Syrups were recovered from the appellant and FSL gave positive test for codeine phosphate and therefore, in that view of the matter, the appellant is rightly convicted for recovery of commercial quantity. In support of such contention, Mr. Goswami, learned Additional Public Prosecutor relies on the decision of the Hon’ble Apex Court in the case of Hira Singh –Vs-Union of India reported in 2020 20 SCC 272 . While concluding his argument, Mr. In support of such contention, Mr. Goswami, learned Additional Public Prosecutor relies on the decision of the Hon’ble Apex Court in the case of Hira Singh –Vs-Union of India reported in 2020 20 SCC 272 . While concluding his argument, Mr. Goswami, learned Additional Public Prosecutor submits that the prosecution has been able to prove the chain of events right from the seizure to receiving the FSL report and therefore, the appellant has rightly been convicted. It is his further contention that the defence has miserably failed to cross-examine and shake the credibility of the prosecution witnesses inasmuch as the appellant has failed to discharge its burden under Section 54 of the Act, 1985. In support of such contention, Mr. Goswami, learned Additional Public Prosecutor relies on the decision of the Hon’ble Apex Court in the case of Karnail Singh vs State of Haryana reported in 2009 8 SCC 539 . 11. I have considered the submissions advanced by the learned counsel for both the sides and have also carefully gone through the materials available on record. 12. Before dealing with the arguments advanced by the learned counsel for the parties, let this court first appreciate the depositions of the Prosecution witnesses. I. The PW-1, ASI Sona Uddin Mollick is the informant and in his evidence, he stated that on 28.01.2022, the O/C of Golokganj PS vide GD entry No. 671 detailed him along with police party for patrolling duty at Golakganj market area and while he was on patrolling duty at around 1.20 pm, the accused came in a motor cycle and he was stopped as his movement was suspicious. He further deposed that he searched the body of the accused and found cash amount of Rs. 900/-approximately, PAN Card and Aadhar Card. He in his deposition stated that while lifting the seat of the motor cycle, 48 nos. of Nitrosun-10 tablets, 11 bottles of cough syrups (100 ml each) were recovered. The recovered articles were seized and he lodged the FIR. He identified the Ext. P-1/ PW1, the certified extract copy of the GD entry No. 671 (wrongly typed as 971) dated 28.01.2022 wherein Ext. P1(i) is the signature of S.I. Pronab Kumar Deka, O/C of Golakganj PS. During the cross-examination, the PW-1 admitted that the FIR was lodged after about 3 (three) hours of the occurrence. He identified the Ext. P-1/ PW1, the certified extract copy of the GD entry No. 671 (wrongly typed as 971) dated 28.01.2022 wherein Ext. P1(i) is the signature of S.I. Pronab Kumar Deka, O/C of Golakganj PS. During the cross-examination, the PW-1 admitted that the FIR was lodged after about 3 (three) hours of the occurrence. In his cross-examination, he stated that there was no secret information received prior to the incident. During cross-examination, PW1 admitted that the place of occurrence was a market area and there were many people. He also admitted that he was accompanied with three police personnel and he did not remember their names. He also admitted that he did not give opportunity to the accused to be searched before a gazetted officer. In his cross-examination, PW1 stated that he recovered six bottles of Eskuf, five bottles of Phensedyle and 48 nos. of Nitrosun-10 tablets. He also admitted that he interrogated the accused person and came to know that some other associates were also involved in the racket but he did not mention their names in the FIR. PW1 in his cross-examination deposed that he disclosed their names in his statement recorded under Section 161 Cr.P.C. before the I/O. II. PW-2, Eyakub Ali stated that Ext.P-3/PW2 is the seizure list wherein Ext. P-3(i)/PW2 is his signature. PW2 also stated that the incident took place in the Golakganj market area where he was present. He further deposed that he came to know from the public that some syrups were recovered. PW2 also stated that he saw police personnel bringing out some articles from below the seat of the motorcycle and the accused was standing near the motorcycle. During his cross-examination, PW-2 deposed that the police called him to the police station being VDP Secretary in various matters. PW 2 further stated that he served notices on behalf of police at times. In his cross-examination, PW2 admitted that VDPs are required to work along with police every now and then. During his cross, he further deposed that he did not know the name of the owner of the motorcycle and also did not remember what kinds of syrups were recovered. During cross, PW2 admitted that he did not know why his signature was required and the document was not read over to him. During his cross, he further deposed that he did not know the name of the owner of the motorcycle and also did not remember what kinds of syrups were recovered. During cross, PW2 admitted that he did not know why his signature was required and the document was not read over to him. He also deposed that he never heard anything against the accused person prior to this incident and also admitted that he did not know the job of the accused. III. PW-3, Gautam Kr. Roy, the VDP Secretary, in his deposition stated that he knows both the informant. Ext. P-3(ii)/PW3 is his signature in the seizure list. PW3 stated that on the date of occurrence, he was marketing at Golakganj market and he saw a large gathering including police personnel. PW3 further stated that some medicines and other articles were recovered by police from motorcycle and the accused person was present with the motorcycle, police took his signature. During his cross-examination, he admitted that there were many people as the place of occurrence was market area and being VDP Secretary, police used to call him in connection with various matters. During his cross-examination, PW3 admitted that he does not know the owner of the motorcycle and the rider of the motorcycle. IV. PW-4, S.I. Pronab Kumar Deka, in his deposition stated that on 15.04.2022, he received the case diary of this case while he was posted at Golakganj PS and after receiving the FSL report, he submitted charge-sheet against the accused under Section 22 (c) of the Act, 1985. PW4 identified Ext. P-4/PW4 (his application before the learned CJM, Dhubri) and Ext.P-4(i)/PW4 (his signature). He also identified Ext.P-5/PW4 to Ext.P-8/PW4 (the photographs), Ext. P-9/PW4 (charge-sheet) and Ext.P-9(i)/PW4 (his signature in the charge-sheet). In his deposition, PW4 stated that on 28.01.2022, ASI, Sona Uddin Mollick was on patrolling duty and during checking, he found narcotic/drugs in the motorcycle and informed him. Thereafter, he deputed SI, Boikuntha Baishya and accordingly he went to the place of occurrence, prepared sketch map of the P/O, conducted search and seizure, recorded statement of the witnesses, prepared the inventory, samples were drawn and thereafter, FIR was lodged by ASI, Sona Uddin Mollick. He also stated that samples were handed over to the S.P. Office, Dhubri by SI, Boikuntha Baishya for examination, accused person was arrested and forwarded to the Court. He also stated that samples were handed over to the S.P. Office, Dhubri by SI, Boikuntha Baishya for examination, accused person was arrested and forwarded to the Court. He further stated that he did not cite the name of the Scientific Officer of FSL, Assam as witness. He identified the signature of ASI, Boikuntha Baishya in the seizure list as Ext.P-3(iii)/PW4, the sketch map as Ext. P-10/PW4 and the signature of SI, Boikuntha Baishya in the sketch map as Ext.P-10(i)/PW4, the inventory as Ext.P-11/PW4 and the signature of SI, Boikuntha Baishya as Ext.P-11(i)/PW4, list of samples as Ext. P-12/PW4 and signature of SI, Boikuntha Baishya as Ext. P-12(i)/PW4, the authorization letter as Ext. P-13/PW4 and the signature of Circle Inspector, Biren Kumar Kalita as Ext. P-13(i)/PW4, the forwarding report as Ext-P-14/PW4 and the FSL report as Ext. P-15/PW4. During cross examination, he stated that the seizure list was prepared at Tokrerchara Part-IV, Golakganj market, Doihati and in the sketch map, the place of occurrence has been mentioned as Golakganj market. During cross-examination, he stated that in the seizure list, the time of seizure has not been mentioned and in the sketch map, the I/O did not mention that the said map was prepared on being shown by the informant. During cross-examination, he stated that the informant did not disclose before the I/O the name of the other associates of the accused Majom Ali. During cross-examination, he denied the suggestion put to him that the I/O did not conduct the investigation as per provisions of Act, 1985. V. CW-1, Chandan Das, who is court witness stated that on 01.02.2022, when he was acting as Scientific Officer, he received a parcel from the Director through Divisional In-charge Office in connection with Golakganj PS case No. 42/2022 under Section 22(c) of Act, 1985 for examination. Description of articles: 2(two) sealed envelopes marked as ‘A-1’ to ‘A-2’ each having a strip containing 10 (ten) nos. of white tablets in each total weight 6.2 gms (0.62 gms X 10) per strip branded as ‘Niutrosun-10’ marked as DN-235/2022 (a1) and DN-235/2022 (a2). One sealed envelope marked as ‘B’ having a sealed plastic bottle with 100ml liquid substances branded as ‘Eskuf’ marked as DN-235/2022 (b). One sealed envelope marked as ‘C’ having a sealed plastic bottle with 100 ml liquid substances branded as ‘PHENSEDYL’ marked as DN-235/2022 (C). One sealed envelope marked as ‘B’ having a sealed plastic bottle with 100ml liquid substances branded as ‘Eskuf’ marked as DN-235/2022 (b). One sealed envelope marked as ‘C’ having a sealed plastic bottle with 100 ml liquid substances branded as ‘PHENSEDYL’ marked as DN-235/2022 (C). CW1 further stated that on careful examination, the exhibits DN-235/2022 (a1) and DN-235/2022 (a2) gave positive test for Nitrazepam and the amount of Nitrazepam per tablet was found to be 8.85 mg. The exhibits DN-235/2022 (b) & DN-235/2022(c) gave positive test for Codeine and the amount of Codeine Phosphate found to be 186.9 mg & 154.7mg. Ext. P-1/CW1 is the forwarding letter wherein Ext. P-1(i)/CW1 is the signature of CW1. Ext. P-2/CW1 is the samples which were received by the office vide Memo No. SR/DBB/2022/331 dated 29.01.2022 by a special messenger from the office of the Superintendent of Police, Dhubri. Ext. C-1 is the report wherein Ext. C-2 is his signature. During cross-examination, CW1 admitted that he cannot say whether date of expiry was mentioned in the samples and he does not remember the name of the manufacturing company and the country. He affirmed that the envelopes were sealed and the seal was of Superintendent of Police, Dhubri. VI. CW2, Pronab Kumar Deka in his evidence stated that as per direction of this court, he has appeared along with original letter dated 29.01.2022 issued by the Deputy Superintendent of Police (HQ) on behalf of Superintendent of Police, Dhubri to the FSL for chemical examination of the samples. He identified Ext. C-3 as the letter wherein Ext.C-3(i) is the signature of Deputy Superintendent of Police (HQ), Dhubri, Bidyut Bikash Bora Bhuyan. During cross-examination, CW2 admitted that the name of the Special Messenger has not been mentioned in the said letter. 13. Mr. Dutta, learned counsel for the appellant has given emphasis on the non compliance of Section 52A of the Act, 1985 inasmuch as non adherence of the notification No. GSR/38(E) dated 16.01.2015 issued in exercise of power under Section 52A of the Act, 1985 which was in force at the time when the offence was committed. 14. Section 52A of the Act, 1985 deals with disposal of seized narcotic drugs and psychotropic substance. 14. Section 52A of the Act, 1985 deals with disposal of seized narcotic drugs and psychotropic substance. Section 52A(2) mandates that where any contraband has been seized and forwarded to the officer-in-charge of the nearest police station or to an officer empowered under Section 53, such officer is mandated to prepare an inventory of such contraband or conveyance containing such details mentioned therein or such identifying particulars of the contraband or conveyance or the packing in which they are packed or country of origin and other particulars as the officer-in-charge or the empowered officer may consider relevant to the identity of the seized contraband or conveyance in any proceeding under the Act, 1985. Such provision further mandates that the officer is to make an application to a Magistrate for the following purposes: a. Certifying the correctness of the inventory so prepared or b. Taking photograph of such seized contraband and conveyance in presence of the Magistrate and certifying such photograph by the Magistrate to be true and c. Allowing to draw representative sample of such samples in presence of the Magistrate and for certifying the correctness of the list of samples. 15. It is important to note that sub-section 3 of Section 52A mandates that when an application under Subsection 2 is filed, the Magistrate is required to allow the application as soon as possible. Another important aspect of the provision of Section 52A is Subsection 4, which is a non-obstante clause. It prescribes that notwithstanding anything contained in the Indian Evidence Act, 1872 the inventory, the photographs or the list of samples certified by the Magistrate is recognized as primary evidence in respect of such offence. 16. The provision of Section 52A of the Act,1985 was elaborately dealt with by the Hon’ble Apex court in the case of Union of India vs Mohanlal reported in (2016) 3 SCC 379 . Such provision was again elaborately dealt by the Hon’ble Apex Court in Mangilal Vs State of Madhya Pradesh reported in (2023) 10 SCR 517 . The Hon’ble Apex court in both the cases also dealt elaborately with the notification issued by the Ministry of Finance (Department of Revenue), Government of India in its exercise of power conferred by Section 52A of the Act, 1985. The said notification had laid down detail procedure as regards disposal of narcotic drugs, psychotropic substance, control substances and conveyance after their seizure. 17. The said notification had laid down detail procedure as regards disposal of narcotic drugs, psychotropic substance, control substances and conveyance after their seizure. 17. In Mohanlal (supra), the Hon’ble Apex Court mandated that immediately after seizure of narcotic drugs and psychotropic and controlled substances and conveyance, the same should be forwarded to the O/C of the nearest police station or to the officer empowered under Section 53 of the Act. It was further mandated that the officer concerned shall then approach the Magistrate with an application under Section 52A(2), which is to be allowed by the Magistrate under Subsection 3 of the said Section as soon as possible and the sampling shall be done under supervision of the Magistrate. 18. In Mangilal (Supra), it was held that the object of Subsection 1 of Section 52A of the Act, 1985 is to create a clear mechanism for disposal of the seized material and to ensure that the contraband are not used for any illegal purposes. The object of Subsection 2 of Section 52A is to have an element of supervision by the Magistrate over the disposal of seized contraband and until and unless there is certification prescribed under such provision, such inventory, photograph or list of samples would not constitute primary evidence. 19. It was further laid down by the Hon’ble Apex Court that any notification issued under Sub section 1 of Section 52A cannot contradict the main provision particularly Subsection 2 of Section 52A. However guidelines issued by way of notification under Section 52A of the Act has to be followed mandatorily. The Hon’ble Apex Court in Mangilal (supra) further held that Court must have a satisfaction as regards compliance of such provision, while deciding the case and the onus of proof of such compliance lies upon the prosecution, when such an issue arises for consideration. It was further held that production of seized material is a factor to establish the recovery followed by the seizure. Nonproduction of physical evidence in terms of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as Act, 1872) is relaxed by virtue of Subsection 2 of Section 52A. 20. It was further held that production of seized material is a factor to establish the recovery followed by the seizure. Nonproduction of physical evidence in terms of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as Act, 1872) is relaxed by virtue of Subsection 2 of Section 52A. 20. It is a well settled proposition of law that the best evidence would be the seized material itself and generally oral evidence as to the feature of the seized material and the production of seizure list does not discharge the heavy burden, which lies on prosecution, more particularly, when the offence is punishable with the stringent sentence under Act,1985. It is also equally settled that the physical evidence of a case under Act, 1985 is the property of court and non-production thereof, may warrant drawing of negative inference within the meaning of Section 114(g) of the Act, 1872 and therefore, the alternative mode for primary evidence as prescribed under Subsection 4 of the Section 52A of the Act, 1985 is to be strictly followed to treat the evidence to be in the standard of primary evidence. 21. From the aforesaid discussion, this court can safely conclude that compliance of Section 52A is crucial for ensuring that the evidence collected is admissible in court. If the procedure for sampling, certification and disposal of said substances is not followed correctly, it may result in exclusion of the evidence as in absence of it, the chain of custody and the integrity of evidence would be compromised. It is equally true that there may be a distinction between substantial compliance and mere technical non-compliance. If the essential requirement of Section 52A is followed and the non-compliance does not materially affect the outcome of the case or the right of the accused, the court may overlook minor procedural lapses. A note of caution is that the prejudice of the accused is an important factor in this regards. It is yet another aspect that non-compliance of Section 52A of the Act,1985 can have a serious legal consequence particularly in term of admissibility of evidence and the overall fairness of the trial. Court is to ensure that such procedural lapses are carefully scrutinized to protect the right of the accused, while considering the integrity of the prosecution case. It is yet another aspect that non-compliance of Section 52A of the Act,1985 can have a serious legal consequence particularly in term of admissibility of evidence and the overall fairness of the trial. Court is to ensure that such procedural lapses are carefully scrutinized to protect the right of the accused, while considering the integrity of the prosecution case. While minor technical lapses may be ignored under the principle of substantial compliance, significant noncompliance that compromises the integrity of the evidence or the fairness of the trial can lead to exclusion of evidence, acquittal of the accused or setting aside a conviction on appeal. 22. In view of the discussion recorded hereinabove and in the backdrop of argument advanced by Mr. NJ Dutta, the notification dated 16.01.2015 issued in exercise of power under Section 52A of the Act is being perused. The silent feature of the notification dated 16.01.2015 can be summarized as follows: a. The inventory of the seized material is to be prepared by the officer empowered under Section 53 as per Annexure 1 of the notification. b. The application under Subsection 2 of Section 52A is to be made as per Annexure 2 within 30 days from receipt of chemical analysis report of the seized material. c. After Magistrate allows the application, the officer shall preserve the certified inventory, the photograph and sample as primary evidence of the case and submit the details of the item to the Chairman of Drug Disposal Committee for a decision by the committee on disposal. 23. It is a well settled proposition of law that the best evidence would be the seized material itself and generally oral evidence as to the feature of the seized material and the production of seizure list does not discharge the heavy burden, which lies on the prosecution, more particularly, when the offence is punishable with the stringent sentence under Act, 1985. It is also equally settled that the physical evidence of a case under Act, 1985, is the property of court, nonproduction thereof, may warrant drawing of negative inference within the meaning of Section 114(g) of the Act, 1872 and therefore, the alternative mode for primary evidence as prescribed under Subsection 4 of the Section 52A of the NDPS Act is to be strictly followed to treat the evidence to be in the standard of primary evidence. 24. 24. From the aforesaid discussion, this court safely conclude that compliance of Section 52A is crucial for ensuring that the evidence collected is admissible in court. If the procedure for sampling, certification and disposal of said substances is not followed correctly, it may result in exclusion of the evidence as in absence of it the chain of custody and the integrity of evidence would be compromised. It is equally true that there may be a distinction between substantial compliance and mere technical noncompliance. If the essential requirement of Section 52A of the Act, 1985 are made and the non-compliance does not materially affect the outcome of the case or the right of the accused, the court may over look minor procedural lapses. A note of caution is that the prejudice of the accused is an important facet in this regards. It is yet another aspect that non-compliance of Section 52A of the Act, 1985, can have a serious legal consequence particularly in term of admissibility of evidence and the over all fairness of the trial. Court is to ensure that such procedural lapsed are carefully scrutinized to protect of the right of the accused, while considering the integrity of the prosecution case. While minor technical lapses may be ignored under the principle of substantial compliance, significant noncompliance that compromises the integrity of the evidence or the fairness of the trial can lead to exclusion of evidence, acquittal of the accused or setting aside a conviction on appeal. 25. Now coming to the case in hand the prosecution has projected PW2 and PW3 to be independent eye witness to the seizure of the alleged contraband. PW-2 only fortified that he came to know from the public that some syrups were recovered and he saw some articles being taken up by the police from the seat of the motorcycle and thereafter, his signature was taken. According to him, the accused was standing near the motorcycle. From this witness, the prosecution has only established that some articles from the seat of the motorcycle were taken out in presence of this witness, however, there is nothing on record through this witness to show that the contraband were recovered, it was weighted or sealed before such witness and that he had identified the same product in the court. From this witness, the prosecution has only established that some articles from the seat of the motorcycle were taken out in presence of this witness, however, there is nothing on record through this witness to show that the contraband were recovered, it was weighted or sealed before such witness and that he had identified the same product in the court. In fact during cross-examination, he expressed his total ignorance regarding nature of the material seized and that he was not aware why his signature was taken and such document was not read over to him. According to this witness his signature was taken in a paper and he only saw some medicines and other articles were recovered from one motor cycle. Then he left the place. PW1, in absence of the I/O who in the meantime had expired, exhibited the GD entry as well as FIR, though deposed as regards recovery of 48 numbers of Nitrochun 10 tablets and 11 numbers of cough syrup and that the S.I. Baikuntha Baishya seized the articles and articles were taken to the police station however, this witness is also absolutely silent as regards sealing of the seized contraband. Thus, from this witness the prosecution has failed to establish the recovery and to lay the foundational fact of recovery of contraband from the conscious possession of the appellant. 26. Though, PW4 proved the application filed before the jurisdictional Magistrate under Sub-section 2 of Section 52A and though he has exhibited the certification under Section 52A (3) issued by the judicial Magistrate First Class certifying the inventory to be true however there was no certification as regards the photograph of the samples and as regard taking of samples as mandated under section 52A. There is no certification in any form or in any manner by the Magistrate that the photographs of the seized contraband exhibited were taken in presence of Magistrate nor there is any certification that such photographs by the Magistrate are true except putting a sentence on the photographs “certified to be true”. In the considered opinion of this court, such certification in the aforesaid manner shall not give the photographs the value of a primary evidence, more particularly to prove that photographs were taken before the Magistrate. There is also no certification that the representative samples were taken in presence of the Magistrate and that the list of samples is correct. 27. In the considered opinion of this court, such certification in the aforesaid manner shall not give the photographs the value of a primary evidence, more particularly to prove that photographs were taken before the Magistrate. There is also no certification that the representative samples were taken in presence of the Magistrate and that the list of samples is correct. 27. Thus, the prosecution has not only failed to produce primary evidence in terms of Section 114(g) of the Act, 1872 but has also failed to adduce secondary evidence in terms of Section 52A(4) of the Act, 1985. 28. The certificate of the Magistrate is exhibited as Ext. P/11; however, such certificate is not in terms of the mandate of the provision prescribed. The Magistrate certified that the inventory is as per the seizure document and the consignments of said seized goods related to the case and the inventory is correct. However, what is mandated under law and as recorded hereinabove is not only the correctness of inventory so prepared but also certification that the photographs of such seized contrabands was taken before the Magistrate and such photographs are true and that the samples were drawn in presence of the Magistrate and the samples are correct. However, as recorded hereinabove except a certification of inventory is correct nothing is there. Therefore, in the considered opinion of this Court there was no evidence to establish that it is the representative sample of the contraband seized and that it is the true photographs of such sample taken before the Magistrate. 29. Even if it is assumed such certificate is a certificate certifying the correctness of the inventory of the said contraband substance, however list of samples drawn under Subsection 2 of Section 51A of the Act, 1985 with due certification from the Magistrate in the form prescribed were not exhibited before the trial court. 30. Though, certain photographs were exhibited in absence of such certificate under Subsection 2 of Section 52A, no presumption can be drawn that the samples were taken in presence of the Magistrate. Thus, until and unless the certification is there and in absence of physical exhibit of the contraband allegedly seized from the accused person and in absence of the certificate as required, it cannot be presumed that the sample were taken in presence of the Magistrate. Thus, until and unless the certification is there and in absence of physical exhibit of the contraband allegedly seized from the accused person and in absence of the certificate as required, it cannot be presumed that the sample were taken in presence of the Magistrate. Thus, there is a clear violation of Section 52A(2) of Act, 1985 31. That being the position, the prosecution has failed to show that there is compliance of Section 52A of the Act. The prosecution has lead not only failed to lead primary evidence in this regard in terms of Section 114(g) of the Act, 1872 but also failed to produce any evidence by way of the alternative mode of primary evidence as prescribed under Sub Section 4 of Section 52 of the Act, 1985. Thus, there was neither primary evidence nor secondary evidence. That being the position, in the considered opinion of this Court, the prosecution case is liable to fall on this count. 32. Another aspect of the matter is regarding the seizure and safe custody of the seized contraband. From the evidence of PW-2 and PW-3, the two independent seizure witnesses, though the prosecution has been able to establish that an occurrence took place on 28.01.2022 at Golokganj and six numbers of Phenseyl Cough Syrup (100 Ml each), 5 numbers of Eskuf Cough Syrup (100 Ml each) and 48 numbers of Nitrosun-10 tablets and cash amount of Rs. 910/-were recovered from a motorcycle, however, these two witnesses have not deposed anything about the factum that the seized contraband were sealed immediately at the spot, recovered in their presence or they had seen sealing of the recovered contraband. The PW-4 who was posted as the Officer in Charge the police station could not throw any light whether the contraband were seized. He admitted that there is no mention of time in the seizure list and there is no description of the seized article in the seizure list. From the prosecution witnesses, there is nothing to suggest how the alleged contraband were seized, how and when it was taken to the nearest police station and how and when the samples were taken. Therefore, a serious doubt has been created as regards time and place of sealing of the alleged contraband and safe custody of such contraband till it was send to the FSL. 33. Therefore, a serious doubt has been created as regards time and place of sealing of the alleged contraband and safe custody of such contraband till it was send to the FSL. 33. Accordingly, the judgment and order dated 22.02.2023, whereby the learned Special Judge (Addl), Dhubri in Special Case No. 213/2022 convicted the appellant under Section 22(c) of the NDPS Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years and also directed to pay fine of Rs. 1,00,000/-(one lakh) in default to undergo simple imprisonment for six months is set aside and quashed. Accordingly the appeal stands allowed. The appellant shall be put at liberty forthwith, if he is not in custody in any other case. LCR be returned back.