JUDGMENT : 1. The appellants herein have been convicted for offence under Section 8/20 (b) (ii) C of the NDPS Act vide judgment dated 05.08.2022 passed by learned Special Judge, NDPS Act Cases, Kota in Sessions Case No.27/2020 and sentenced them to undergo 14 years’ RI with fine of Rs.1,50,000/- each. In default of payment of fine, the appellants have been sentenced to undergo three year’s additional rigorous imprisonment. 2. The appellants herein have preferred these two separate criminal appeals under Section 374(2) Cr.P.C. challenging their conviction and sentence, as mentioned above. 3. Learned counsel for the appellants submits that he wants to argue the appeal finally. Learned Public Prosecutor is also ready to argue the matter finally. Thus, the appeal is heard finally. The application for suspension of sentence is therefore, disposed of. 4. Brief facts of the case are that on 03.12.2019, a Preventive Team of CNB Kota, led by Mr. C. Prasad, Superintended, CBN Kota and other members namely Inspector Mr. J.P. Meena, Inspector, Mr. Pankaj Kumar, Ct. Mohanchand Kalwar, LDC Mr. Gajraj Meena and Driver Mukesh Singh Rathore were on routine checking. The team left the police station by Govt. Vehicle No.RJ 20 UA 1973 and reached Toll Tax Mandana, Jhalawar. At about 10:50 am, one car No. DL 8 CX 3801 was seen coming there. There were two persons sitting in the car. The driver of the said car was signaled to stop by Shri J.P. Meena. The driver disclosed his name as Roopnarayan and the other person, sitting next to the driver seat, disclosed his name as Ajay. On interrogation, the appellants herein became nervous and did not give satisfactory replies to the questions put to them. On apprehension that they may be carrying some objectionable material, both appellants along with the car and independent public witnesses were taken to the office of Deputy Narcotics Commissioner, CBN, Kota. Both appellants were apprised their legal rights of personal search under Section 50 of the NDPS Act. As per the prosecution case, no suspicious or objectionable thing was recovered during personal search of both the appellants but during search of the car, contraband Ganja, kept in total 78 packets were recovered from the dicky of the car. Two lots of 40 packets and 38 packets were made on the basis of their size and weight. On weighing, 40 packets were found weighing 2.1 Kgs. Two lots of 40 packets and 38 packets were made on the basis of their size and weight. On weighing, 40 packets were found weighing 2.1 Kgs. each whereas remaining 38 packets were found weighing 2.2 Kgs each and thus, a total 167.6 Kgs. Ganja was allegedly recovered from the car. The weight of first lot was 84 Kgs. whereas the weight of the second lot of 38 packets was 83.6 Kgs. Two samples of 500 grams each were taken out from both the lots for chemical examination and they were given mark A-1, A-2, B-1 and B-2 respectively. The remaining contraband was again put in the same packets and lots of ten packets, were prepared and marked as A/1, A/2, A/3, A/4, B/1, B/2, B/3 and B/4. The appellants failed to produce any license or permit for the same. Both the accused persons were thereafter arrested in connection with the aforesaid recovery. The police team, thereafter, conducted usual investigation. 5. In connection with the aforesaid recovery, FIR No.2/2019 was registered at Police Station CBN, Kota for offence under Section 8/20 of the NDPS Act and investigation commenced. After completion of investigation, the police filed chargesheet for offences under Sections 8/20 (c) and 8/29 of the NDPS Act against accused Roopnarayan, Ajay Kumat (appellants herein) and Vinay Kumar in the court of learned Special Judge, NDPS Case, Kota where charges for aforesaid offences were framed against the accused persons who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as six witnesses and exhibited certain documents. 6. The accused persons were questioned under Section 313 Cr.P.C. in which, they denied the prosecution evidence and stated that they had been falsely implicated in this case. Two witnesses were produced in defence by the appellants. 7. After conclusion of trial, vide judgment dated 05.08.2022, the learned trial court convicted the appellants for offence under Section 8/20 (b) (ii) C of the NDPS Act and sentenced them, as mentioned above. However, the learned trial court vide the same judgment, acquitted the accused Vinay Kumar from charge under Section 29 of the NDPS Act. Hence this criminal appeal. 8. Learned counsel for the appellants contend that the learned trial court has erred in convicting and sentencing the appellants for the aforesaid offences and therefore, the same deserves to be set aside. However, the learned trial court vide the same judgment, acquitted the accused Vinay Kumar from charge under Section 29 of the NDPS Act. Hence this criminal appeal. 8. Learned counsel for the appellants contend that the learned trial court has erred in convicting and sentencing the appellants for the aforesaid offences and therefore, the same deserves to be set aside. They submit that the finding recovered by the learned trial court is patently illegal and perverse to the facts of the case. The learned trial court has failed to appreciate the evidence in right and correct perspective. 9. The precise argument of learned counsel for challenging the impugned judgment of conviction and sentence is that in the instant case, there is a gross violation of the provisions of Section 52A of the NDPS Act as well as the guidelines issued by the Government in this regard. The alleged recovery of contraband was effected on 03.12.2019 and the Seizure Officer Mr. C. Prasad (PW.3) took out two samples from each lot, which were marked as A-1 and A-2 from first lot of forty packets and B-1 and B-2 from second lot of 38 packets on 03.12.2019 itself but inventory report (Ex.P/18) in terms of provisions of Section 52A of the NDPS Act, was prepared on 19.06.2020 that is almost after six months of the alleged recovery. 10. It is argued that from the testimony of seizure officer PW.3 Mr. C. Prasad and other recovery witnesses, it is apparent that samples drawn from the alleged recovered contraband on 03.12.2019, were not done in presence of jurisdictional magistrate and therefore, the proceedings for obtaining samples is in contravention of provisions of Section 52A of the NDPS Act and the FSL report (Ex.P/11) is not worthy of being read in evidence and is nothing but a waste paper. They also argue that non-compliance of Section 52A of the NDPS Act would be fatal to the prosecution case. It is further submitted that neither the samples drawn in the presence of magistrate were sent to FSL nor the said magistrate, in whose presence inventory in terms of Section 52A of the NDPS Act was prepared and samples were drawn, was produced in the witness box to prove the inventory report. It is further submitted that neither the samples drawn in the presence of magistrate were sent to FSL nor the said magistrate, in whose presence inventory in terms of Section 52A of the NDPS Act was prepared and samples were drawn, was produced in the witness box to prove the inventory report. It is also contended by learned counsel that as per the prosecution case, there were two independent witnesses namely Ramkailash and Krishna Murari, associated with the search and seizure proceedings but out of them, only one witness Krishna Murari (PW.6) appeared before the learned trial court. The other witness namely Ram Kailash did not appear before the learned trial court for his evidence. Learned counsel also submits that no cross-examination could be done on behalf of the accused appellants from PW.6 Krishna Murari as after recording his examination-in-chief, he did not turn up before the learned trial court. Learned counsel further argue that provisions of Sections 42 and 50 of the NDPS Act were also not complied with. They craves acceptance of both criminal appeals. Reliance has been placed on the following judgments: 1. Union of India v. Mohanlal & Anr : (2016) 3 SCC 379 . 2. Mohammed Khalid & Anr. v. The State of Telangana : 2024 INSC 158 11. On the basis of these submissions, learned counsel craves acceptance of the appeals and seek acquittal of the accused appellants from the charge punishable under Section 8/20 of the NDPS Act. 12. Per contra, learned Public Prosecutor opposes the submission advanced by the appellants’ counsel. He submits that learned trial court after appreciating entire evidence and material available on record has rightly recorded conviction of the accused appellant, which does not warrant any interference. The prosecution has proved the case beyond all reasonable doubt against the appellants. It is also contended by learned Public Prosecutor that the provisions of Section 52 of the NDPS Act are not mandatory but directory in nature. He submits that mere fact that Seizure officer did not draw the samples in presence of jurisdictional magistrate, would not vitiate the recovery proceedings particularly when accused has been found in possession of huge quantity of contraband and therefore, the learned trial court has rightly convicted the appellants for offence under Section 8/20 (b) (ii) C of the NDPS Act. He thus, prays that the instant criminal appeal may be dismissed. 13. He thus, prays that the instant criminal appeal may be dismissed. 13. I have heard and considered the submissions advanced by appellants’ counsel as well as learned Public Prosecutor and perused the material available on record. 14. The NDPS Act was enacted to make stringent provisions for the control and regulate operations relating to narcotic drugs and psychotropic substances. This comes along with stringent punishments such as the minimum sentence under this act being 10 years for the offences punishable under section 19, 24, 27A and involving contraband of commercial quantity. Such stringent laws demand for a fair trial by all means, and this fair trial can only be warranted with the judiciary playing a vital role throughout the investigation and trial of NDPS cases. Search and Seizure serves as one of the most vital steps in the timeline of an NDPS case. This step ultimately plays a major role in determining whether a person is guilty or not. Hence, it requires a strict process to be followed by the investigating agency. This process has to be infallible and just. The statute sets up a transparent and unprejudiced procedure when it comes to seizure of contraband. 15. Section 52-A of the Act provides for disposal of seized narcotic drugs and psychotropic substances. Sub-Section (2) of this Section is very important provision which lays emphasis as to how samples are to be taken out from the recovered contraband. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:- “52A. Disposal of seized narcotic drugs and psychotropic substances. (1) …………. Sub-Section (2) of this Section is very important provision which lays emphasis as to how samples are to be taken out from the recovered contraband. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:- “52A. Disposal of seized narcotic drugs and psychotropic substances. (1) …………. (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 or 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 subsection (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 subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.” 16. From a bare perusal of the provision, it is evident that the Magistrate’s role in the investigation is extremely crucial as it ensures that the investigation is legitimate and the due process has been followed. From a bare perusal of the provision, it is evident that the Magistrate’s role in the investigation is extremely crucial as it ensures that the investigation is legitimate and the due process has been followed. As per the aforesaid provision, when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. These provisions set up a burden on the prosecution to establish compliance of due procedure in front of the court. 17. After perusing the material available on record and after going through the statements of the prosecution witnesses particularly seizure officer PW.3 C. Prasad, and the documents exhibited by the prosecution in support of its case, one thing is very much clear that the prosecution has failed to bring on record any evidence to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was properly followed while making the seizure and drawing sample. The two samples (Mark A/1 and B/1) taken out from the recovered contraband and sent to the FSL, were not drawn in presence of the Magistrate. 18. Apart from it, proceedings for preparation of inventory in terms of Section 52A of NDPS Act, were done almost after six months of the alleged recovery and the prosecution failed to give reasonable explanation for this delay. The representative samples taken in presence of the magistrate were not sent to FSL. Further, the said learned Magistrate could not be produced in the witness box to prove the inventory report. The samples (Mark A-1 and Mark B-1) taken by the seizure officer at the time of alleged recovery, were sent to the FSL, which has no evidentiary worth and cannot be read in evidence. In the case of Mohammed Khalid & Anr. Further, the said learned Magistrate could not be produced in the witness box to prove the inventory report. The samples (Mark A-1 and Mark B-1) taken by the seizure officer at the time of alleged recovery, were sent to the FSL, which has no evidentiary worth and cannot be read in evidence. In the case of Mohammed Khalid & Anr. vs The State of Telangana reported in 2024 INSC 158 , Hon’ble Apex Court has held that the FSL report of the samples, which were taken in absence of the jurisdictional magistrate, is nothing but a waste paper and cannot be read in evidence. 19. Hon’ble Supreme Court judgment in the case of Union of India v. Mohanlal & Anr. : (2016) 3 SCC 379 has observed as under:- “15. It is manifest from Section 52A (2)(c) (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 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-section (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 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.” 20. The Apex Court in the case of Mangilal v State of Madhya Pradesh : 2023 SCC online SC 862, observed as below:- “Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatim wise and keeping them in lots preceded by compliance of the procedure for drawing samples.” 21. Section 52-A (2) ensures that the investigation may happen without any faults and the law laid down is followed in whole. Leaving no empty spaces to twist and turn the law, this provision happens to be stringent for both the accused and the Investigating Agency. While a fair investigation is promised to the accused, it is also made sure that the accused, if guilty, does not escape the punishment due to mere technical and procedural errors made by the investigation agencies. Leaving no empty spaces to twist and turn the law, this provision happens to be stringent for both the accused and the Investigating Agency. While a fair investigation is promised to the accused, it is also made sure that the accused, if guilty, does not escape the punishment due to mere technical and procedural errors made by the investigation agencies. To work on this, the investigation agencies are also advised to draw samples from the seized contraband in front of the accused as well as the magistrate to make the entire process infallible. It could be seen recently in the case of Yusuf @ Asif v State reported in 2023 (4) Crimes (SC) 261 that the Hon’ble Apex Court had to reverse the judgments of the High Court and the Trial Court where these courts had convicted the accused, simply because the Investigating Agency drew samples from the seized contraband without complying with the provisions of Section 52-A (2). 22. In backdrop of the aforesaid discussion, without delving into other aspects of this case, I am of the considered opinion that proper compliance of provisions of Section 52A of the NDPS Act was not made in the instant case at the time of conducting search and seizure proceedings, which renders the entire recovery proceedings vitiated and on this sole ground alone, the conviction recorded by the learned trial court vide impugned judgment deserves reversal. Accordingly, the impugned judgment of conviction and sentence dated 05.08.2022 passed by learned Special Judge, NDPS Cases, Kota in Sessions Case No.27/2020 is hereby quashed and set aside. The accused appellants Roopnarayan and Ajay Kumar are hereby acquitted of the charge punishable under Section 8/20 (b) (ii) C of the NDPS Act. Both accused appellants are in jail. They shall be released from prison forthwith, if not warranted in any other case. 23. The appeals are allowed in these terms. 24. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the accused appellants are directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. 25. 25. Record be returned to the trial court forthwith.