JUDGMENT : [M. Choudhury, J] A. The Assail :- 1. Both these criminal appeals, preferred under Section 383 and Section 374[2] respectively of the Code of Criminal Procedure, 1973 [‘the Code’ or ‘CrPC’, for short] read with Section 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 [‘the NDPS Act’, for short] are directed against a Judgment and Order dated 17.06.2020 passed by the Court of learned Special Judge, Phek, Nagaland [hereafter referred to as ‘the Special Court’, for short] in Sessions [Special] Case no. 07 of 2019, which arose out of G.R. Case no. 25 of 2018 and Khezhakeno Police Station Case no. 03 of 2018. The criminal appeal, Criminal Appeal no. 04 [J] of 2020 is preferred by the accused-appellant, Sri Vechukho [hereinafter also referred as ‘A-1’, at places, for easy reference] whereas the other criminal appeal numbered as Criminal Appeal no. 06 of 2020 is preferred by the accused-appellant, Sri Khapelo Sarah [hereinafter also referred as ‘A-2’, at places, for easy reference]. B. The verdict of the Special Court :- 2. By the Judgment and Order dated 17.06.2020, both the accused-appellants have been convicted for the offence under Section 20[b][ii][C] of the NDPS Act read with Section 34 of the Indian Penal Code [IPC]. On finding the accused-appellants guilty of the offence under Section 20[b][ii][C] of the NDPS Act read with Section 34, IPC, they have been sentenced by the learned Special Court to undergo rigorous imprisonment for 15 [fifteen] years each and to pay a fine of Rs. 2,00,000/-[Rupees two lakhs] each, in default of payment of fine, to undergo rigorous imprisonment for another 2 [two] years. The learned Special Court has, however, acquitted both the accused-appellants from the charge of Section 109, IPC. It has been observed that the period already undergone in jail by the accused-appellants shall be set-off under Section 428, CrPC. C. The case of the prosecution :- 3. The prosecution story, in brief, is that at around 22-00 hours on 30.05.2018, a telephonic information was received at Pfutsero Police Station from the Officer In-Charge, Pfutsero Police Station to the effect that the Sub-Divisional Police Officer [SDPO], Pfutsero received an information from a reliable source about concealment of a huge quantity of suspected contraband, Cannabis [Ganja] in a house belonging to one Sri Khapelo Sarah [A-2], son of Late Kekhwelhou Sarah of Lewoza Village under Khezhokeno Police Station. On receiving the information, an entry was entered in the General Diary of Pfutsero Police Station vide General Diary Entry no. 347 at 10-30 hours. As an immediate raid was required, the SDPO, Pfutsero along with five other Police personnel proceeded to the suspected house, after duly informing Khezhokeno Police Station as Lewoza Village falls within its territorial jurisdiction, to verify the authenticity of the information along with two independent witnesses viz. [i] Sri Wezhepe [P.W.1], VCC of Leshemi Village; and [ii] Sri Kedongulo Lomi [P.W.4], VCC Secretary of Lewoza Village to assist the Police. On reaching the spot, the Police revealed their identities to the owner of the house and the owner identified himself as Khapelo Sarah [A-2]. Khapelo Sarah [A-2] was informed about the intention of the Police team to conduct house search on suspicion of concealment of contraband, Cannabis [Ganja] in his house. On search being conducted thereafter, a huge stock of suspected contraband, Cannabis [Ganja] weighing about 450 kgs approx. and packed in forty-five packets of about 10 kg each, was recovered from the house of Khapelo Sarah [A-2] and the same was seized in presence of the independent witnesses. On being questioned, Khapelo Sarah [A-2] failed to produce any authorization in support of his possession. On further questioning, Khapelo Sarah [A-2] stated that the contraband, Cannabis [Ganja] was stored in his house by one person named Smti. Khrowepe-u @ Apale Losou and he was not involved in the trade of the said contraband. As Khapelo Sarah [A-2] was found in exclusive and conscious possession of 450 kgs [approx.] of suspected contraband, Cannabis [Ganja] in his house at Lewoza Village he was arrested as an accused after observing all legal formalities and brought to Pfutsero Police Station along with the seized contraband. 3.1. Immediately on receiving the information about concealment and recovery of the suspected contraband, Cannabis [Ganja] at Lewoza Village, an entry vide General Diary Entry no. 139/2018 was made at Khezhakeno Police Station on 31.05.2018. 3.2. The events had also been stated in a First Information Report [FIR] lodged by one Sri Selu Koza [P.W.5], an Assistant Sub-Inspector [ASI] of Police, attached to Pfutsero Police Station before the Officer In-Charge, Khezhakeno Police Station on 31.05.2018. 139/2018 was made at Khezhakeno Police Station on 31.05.2018. 3.2. The events had also been stated in a First Information Report [FIR] lodged by one Sri Selu Koza [P.W.5], an Assistant Sub-Inspector [ASI] of Police, attached to Pfutsero Police Station before the Officer In-Charge, Khezhakeno Police Station on 31.05.2018. In the FIR, the informant had inter-alia stated that at around 22-30 hours on 30.05.2018, he received a reliable specific information from sources that a huge quantity of contraband, suspected to be Cannabis [Ganja], was kept inside a house in Lewoza Village. As an immediate raid was required to prevent the consignment of Cannabis [Ganja] from being taken away from the spot/place, he entered the information in the General Diary of Pfutsero Police Station vide General Diary Entry no. 347 at 10-30 hours and informed the Officer In-Charge, Pfutsero Police Station and the Sub-Divisional Police Officer [SDPO], Pfutsero. The informant had thereafter, left for the spot/place along with four staff in a Police vehicle. The concerned house was found located below the main road of Lewoza Village. On reaching near the house, the informant and the other Police personnel surrounded the house and asked the owner to open the house. The informant gave his identity to the owner and asked the owner of the house to disclose his identity. The informant had stated that he told the owner that contraband, Cannabis [Ganja] had been kept inside his house and the house needed to be searched. The informant stated to have informed the owner about his right to be searched in front of a Gazetted Officer. Thereafter, the informant, the SDPO and the team along with independent witnesses gave their personal search and searched the house thereafter. During the search inside the house, forty-five nos. of plastic packets, weighing 450 kg in total, were found in one of the rooms. On checking the packets, it was found to be contained contraband, Cannabis [Ganja]. The recovered contraband, Cannabis [Ganja] was shown to the SDPO and the witnesses. On being asked, the owner of the house told that he was keeping the packets of contraband, Cannabis [Ganja] in his house with his own knowledge and the consignment of contraband, Cannabis [Ganja] belonged to him. The owner of the house disclosed his identity as Khapelo Sarah [A-2], son of Late Kekhwelhu. On being asked, the owner of the house told that he was keeping the packets of contraband, Cannabis [Ganja] in his house with his own knowledge and the consignment of contraband, Cannabis [Ganja] belonged to him. The owner of the house disclosed his identity as Khapelo Sarah [A-2], son of Late Kekhwelhu. Thereafter, the packets containing the contraband, Cannabis [Ganja] were seized and sealed in presence of the Gazetted Officer and the independent witnesses by preparing a Seizure List. As the accused, Khapelo Sarah [A-2] was found in exclusive and conscious possession of 450 kgs of contraband, Cannabis [Ganja] in his house, he was found to have committed the offence under Section 20[b][ii][C] of the NDPS Act. Accordingly, the accused, Khapelo Sarah [A-2] was arrested at 23-00 hours after explaining the grounds of his arrest and after observing all formalities for his arrest. The informant further stated that thereafter, he along with the raiding party came to Pfutsero Police Station along with the accused and the seized contraband, Cannabis [Ganja], weighing 450 kgs. The packets containing the contraband, Cannabis [Ganja] which were marked, were produced along with the Seizure List by the informant. 3.3. On receipt of the FIR, the Officer In-Charge, Khezhakeno Police Station registered the FIR [suo moto] as Khezhakeno Police Station Case no. 03 of 2018 for the offence under Section 20[b][ii][C] of the NDPS Act on 31.05.2018 against the accused persons :- [i] Sri Vechukho Rhakho [A-1]; and [ii] Sri Khapelo Sarah [A-2]. The investigation of the case was thereafter, taken up by the then Officer In-Charge, Khezhakeno Police Station himself, that is, Sri Wezhietsu Wetsah [P.W.6] UBI. D. The investigation :- 4. During the course of investigation, one Sri Weshepe Sarah was arrested in connection with the case. However, the said arrested person, Weshepe Sarah was released on P.R. Bond as he was found not involved in the case. Subsequently on 31.05.2018, the other accused, Vechukho Rhakho [A-1] surrendered before Police by admitting that he brought the consignment of contraband, Cannabis [Ganja] in connivance with Smti. Khrowepe-u @ Apale Losou. Both the accused persons, Vechukho Rhakho [A-1] and Smti. Khrowepe-u @ Apale Losou were arrested thereafter, in connection with the case. 4.1. In the course of investigation, the statements of the informant and the other witnesses, apart from the accused persons, were recorded under Section 161, CrPC. Khrowepe-u @ Apale Losou. Both the accused persons, Vechukho Rhakho [A-1] and Smti. Khrowepe-u @ Apale Losou were arrested thereafter, in connection with the case. 4.1. In the course of investigation, the statements of the informant and the other witnesses, apart from the accused persons, were recorded under Section 161, CrPC. The statements of the two seizure witnesses were also recorded under Section 161, CrPC. A prayer was also made to the ADC, Pfutsero for drawal of exhibit samples. The exhibit samples were stated to have drawn and sealed in presence of a Magistrate, the witnesses and the accused persons. The samples were thereafter, forwarded to the Superintendent of Police, Phek for sending them to the Forensic Science Laboratory [FSL], Dimapur for chemical examination and expert opinion. The I.O. stated that the seized contraband packets were forwarded to the District & Sessions Judge vide a Challan no. 03/2018 of Khezhokeno Police Station. 4.2. The chemical examination report was received from the Assistant Director, FSL, Dimapur vide Report no. PHQ/IGP/CID/FSL/DMP/NAR/66/97/C-902/2019 dated 23.04.2019 recording an opinion that on examination, the exhibit marked as C-902/2019 gave positive result for Cannabis [Ganja]. 4.3. A request for Call Detail Records [CDR] was made to the Superintendent of Police, Phek in respect of all the three arrested accused persons. After obtaining the CDRs, the same were examined and analyzed and it was found that the accused persons, Khepelo Sarah [A-2] and Smti. Khrowepe-u @ Apale Losou were in constant conversations over phone during the period from 29.05.2018 to 31.05.2018. On the evening of 30.05.2018, while the search and seizure were being made, they were found to have been making many frantic constant calls. The accused persons, Vechukho Rhakho [A-1] and Smti. Khrowepe-u @ Apale Losou were also found in contact with each other and their contact frequency were found to have increased prior to arrival of the contraband, Cannabis [Ganja] in the area and after seizure was made by the Police. The I.O. of the case, Wezhietsu Wetsah [P.W.6] reported that the telephonic conversations among the accused persons were clearly indicative of connivance and involvement of the accused persons as partners in the crime. E. The Charge-Sheet :- 5. The I.O. [P.W.6] after completing investigation into the case, Khezhokeno Police Station Case no. 03 of 2018 submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. E. The Charge-Sheet :- 5. The I.O. [P.W.6] after completing investigation into the case, Khezhokeno Police Station Case no. 03 of 2018 submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 03/2019 on 02.08.2019 finding a prima facie case for the offence publishable under Section 20[b][ii][C] of the NDPS Act well established against the three accused persons :- [i] Vechukho Rhakho [A-1]; [ii] Khapelo Sarah [A-2]; and [iii] Smti. Khrowepe-u @ Apale Losou. The Charge-Sheet was forwarded to the Special Court by the Superintendent of Police, Phek vide an Office Letter dated 28.08.2019. F. The Charges :- 6. On receipt of the Charge-Sheet, the Special Court registered the same as Sessions [Special] Case no. 07 of 2019. On appearance of the accused persons before it and after hearing the learned Public Prosecutor and the learned defence counsel, the learned Special Court had, on 10.01.2020, framed charges under Section 20[b][ii][C] of the NDPS Act and under Section 109, IPC read with Section 34, IPC against all the three accused persons, that is, [i] Khapelo Sarah [A-1], [ii] Vechukho Rhakho [A-2] and [iii] Smti. Khrowepe-u @ Apale Losou. When the charges were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. G. The Trial :- 7. During the course of the trial, the prosecution side examined the following prosecution witnesses [P.W.s] to bring home the charges against the three accused persons :- [i] Vechukho Rhakho [A-1]; [ii] Khapelo Sarah [A-2]; and [iii] Smti. Khrowepe-u @ Apale Losou. Table-I P.W.s Name Designation/Status P.W.1 Wezhepe Sarah Seizure Witness in Ext.-P-1 P.W.2 Lhouvelo Koza Seizure Witness in Ext.-P-1 P.W.3 Solhou-u The wife of Khapelo Sarah [A-2] P.W.4 Kedungulo Lomi Secretary, VCC, Lewoza Village P.W.5 Selu Koza The Informant P.W.6 Wezhietsu Wetsah The Investigating Officer 7.1 Apart from the oral testimony of the afore-mentioned prosecution witnesses [P.W.s], the prosecution side also exhibited the following documentary evidence through the P.W.s, during the course of the trial :- Exhibit Description Exhibit P-1 Property search & seizure form/arrest/court surrender form Exhibit P-1[a] Signature of seizure witness Exhibit P-1[b] Signature of seizure witness Exhibit P-2 First Information Report Exhibit P-2[a] Signature of the Informant Exhibit P-3 Charge-Sheet Exhibit P-3[a] Signature of the Investigating Officer Exhibit P-4 Forensic Science Laboratory Report Exhibit P-5 Photographs of the accused with seized Ganja 7.2. After closure of evidence from the prosecution side, all the three accused persons, [i] Khapelo Sarah [A-1]; [ii] Vechukho Rhakho [A-2]; and [iii] Smti. Khrowepe-u @ Apale Losou; were examined under Section 313, CrPC. During such examination, the accused persons took the plea of denial stating that the case of the prosecution was false. The defence side did not, however, adduce any evidence. 7.3. After hearing the learned Public Prosecutor and the leaned defence counsel; and after evaluating the evidence on record; the learned Special Court proceeded to deliver the Judgment on 17.06.2020 holding that the prosecution had been able to prove its case against the two accused-appellants, that is, [i] Vechukho Rhakho [A-1]; and [ii] Khapelo Sarah [A-2]; for the charges under Section 20[b][ii][C] of the NDPS Act read with Section 34, IPC. The two accused persons were, however, acquitted from the charge under Section 109, IPC. In so far as the third accused person, Smti. Khrowepe-u @ Apale Losou is concerned, the learned Special Court acquitted her on benefit of doubt. Convicting the two accused appellants, [i] Sri Vechukho Rhakho [A-1]; and [ii] Khapelo Sarah [A-2]; for the offences under Section 20[b][ii][C] NDPS Act read with Section 34, IPC, the learned Special Court have sentenced the accused-appellants - [i] Khapelo Sarah [A-1] and [ii] Vechukho Rhakho [A-2] - in the manner, mentioned above. 8. We have heard Ms. Neiteo Koza, learned counsel for the accused-appellant in Criminal Appeal [J] no. 4 of 2020; Mr. A. Zho, learned counsel for the accused-appellant in Criminal Appeal no. 6 of 2020; and Mr. Kevi Angami, learned Public Prosecutor for the respondent State of Nagaland. H. Submissions of the accused-appellants :- 9. Both Ms. Koza and Mr. Zho, learned counsel appearing for the accused-appellants have contended that the prosecution had miserably failed to bring the primary evidence as regards seizure, inventory and sampling of the allegedly seized contraband, Cannabis [Ganja] on record. It is their contention that the mandatory procedure laid down in Section 52A of the NDPS Act was not followed in the case in hand. Zho, learned counsel appearing for the accused-appellants have contended that the prosecution had miserably failed to bring the primary evidence as regards seizure, inventory and sampling of the allegedly seized contraband, Cannabis [Ganja] on record. It is their contention that the mandatory procedure laid down in Section 52A of the NDPS Act was not followed in the case in hand. It was the duty of the prosecution to lead primary evidence as regards the allegedly seized contraband either by producing the seized contraband physically or in the alternative, the documentary evidence in the forms of the inventory, the photographs of the seized contraband, Cannabis [Ganja], and the list of samples drawn, with proper certification of the Magistrate, on record. But, the prosecution did not exhibit any of them. The learned counsel for the accused-appellants have argued that the allegedly seized forty-five packets containing contraband, Cannabis [Ganja] were not produced physically and exhibited during the trial. It is their submission that in view of such abject failure on the part of the prosecution to bring the most vital primary evidence on record, the entire trial stood vitiated as no evidence admissible in law in support of the charges was exhibited during the trial. 9.1. They have further contended that the prosecution also failed to produce the remnants of the samples drawn from the packets allegedly containing Cannabis [Ganja]. It is not also not established when samples were drawn and how many samples were drawn from those allegedly seized forty-five packets containing suspected contraband, Cannabis [Ganja]. The informant [P.W.5] and the Investigating Officer [P.W.6] had utterly failed to depose about drawing of samples in a convincing manner. Moreover, though the Report of the FSL was exhibited, the forensic expert who had submitted the Report, was not examined as a witness. Ext.-P-5 was a photograph wherein an accused was shown with the allegedly seized packets of contraband, Cannabis [Ganja] in an unknown place and such a photograph cannot be admitted into evidence due to non-compliance of the provisions of Section 52A of the NDPS Act. 9.2. The learned counsel appearing for the accused-appellants have further contended that during the alleged search, seizure and recovery of the packets containing contraband, Cannabis [Ganja], allegedly from the house of the accused, Khapelo Sarah [A-2], no independent witness was found be present from the evidence on record. 9.2. The learned counsel appearing for the accused-appellants have further contended that during the alleged search, seizure and recovery of the packets containing contraband, Cannabis [Ganja], allegedly from the house of the accused, Khapelo Sarah [A-2], no independent witness was found be present from the evidence on record. The procedures laid down in Section 51, NDPS Act and Section 100, CrPC were not followed while making the alleged search, recovery and seizure of the contraband, Cannabis [Ganja]. It has been further contended that if the Officer mentioned under Section 42[1] of the NDPS Act takes down any information in writing under sub-section [1] of Section 42 or records grounds for his belief under the second proviso thereto, he is required to send a copy thereof to his immediate official superior within seventy-two hours. But in the case in hand, there was no such compliance as no report was exhibited indicating that the immediate official superior had received any report. It has been further contended that after search, recovery and seizure of the alleged contraband substance, Cannabis [Ganja] and arrest of the accused person[s], no full report containing the details on the aforesaid aspects was sent within the period of forty-eight hours, as mandated by Section 57 of the NDPS Act. The learned counsel have, thus, contended that such non-compliance of the procedure has the effect of vitiating the entire process of search, recovery, seizure, arrest and consequently, the trial. 9.3. The learned counsel for the accused-appellants have further submitted that though the prosecution side had implicated the three charge-sheeted accused persons by bringing in Section 109, IPC and Section 34, IPC, but, there was no iota of evidence in that connection. Though the prosecution side had sought to bring all the accused persons with the aid of Section 34, IPC alleging that there were frequent telephonic conversation among them and the same were substantiated by the Call Detail Records [CDRs] collected, no Call Detail Records [CDRs] were, however, exhibited during the course of the trial. 9.4. Mr. Zho, learned counsel appearing for the accused-appellant, Khapelo Sarah [A-2] has submitted that the alleged raid in the house of the accused-appellant, Khapelo Sarah [A-2] was made after sunset. 9.4. Mr. Zho, learned counsel appearing for the accused-appellant, Khapelo Sarah [A-2] has submitted that the alleged raid in the house of the accused-appellant, Khapelo Sarah [A-2] was made after sunset. But, nothing was exhibited by the prosecution to indicate that the concerned Officer had recorded the grounds of his belief as per the mandate prescribed in second proviso of Section 42[1] of the NDPS Act before sending it to his immediate official superior in compliance of Section 42[2] of the NDPS Act. Such failure on the part of the investigating authority has given rise to serious doubts about the very nature of investigation carried out. 9.5. Ms. Koza, learned counsel appearing for the accused-appellant, Vechukho Rhakho [A-1] has submitted that there was no evidence that the accused-appellant, Vechukho Rhakho [A-1] was, at any time, in possession of the contraband, Cannabis [Ganja]. None of the prosecution witnesses had deposed about the involvement of the accused-appellant, Vechukho Rhakho [A-1]. I. Submissions of the respondent State :- 10. The learned Public Prosecutor has contended that there was no violation of the provisions contained in the NDPS Act during the search, seizure and recovery of the contraband, Cannabis [Ganja] from the house of the accused, Khapelo Sarah [A-2] on the night of the incident. The quantity of contraband, Cannabis [Ganja], seized from inside the house of Khapelo Sarah [A-2], was commercial quantity and the accused, Khapelo Sarah [A-2] failed to account for and explain as to how such contraband, Cannabis [Ganja] weighing about 450 kgs, could be found in his house. He has submitted that from the testimony of the prosecution witnesses, it could be gathered that the seized contraband, Cannabis [Ganja] was produced before the Court and the accused had identified them. Mr. Angami has further submitted that non-production of the Call Detail Records [CDRs] of the telephonic conversations through mobile phones among the charge-sheeted accused persons would not be fatal for the trial. The act of surrender of the accused, Vechkukho Rhakho [A-1] was itself an admission of culpability in the act of possessing and transporting of forty-five packets of contraband, Cannabis [Ganja]. 10.1. Mr. The act of surrender of the accused, Vechkukho Rhakho [A-1] was itself an admission of culpability in the act of possessing and transporting of forty-five packets of contraband, Cannabis [Ganja]. 10.1. Mr. Angami has fairly submitted that there were, however, some lacunae in the course of investigation as well as in the course of the trial but such lacunae were of such insignificant nature that the same would not enure any benefit to the accused-appellants and the trial would not be vitiated. With such submissions, the learned Public Prosecutor has, supporting the Judgment and Order of conviction and sentence passed by the learned Special Court, submitted that no interference is called for and both the criminal appeals deserve to be dismissed. J. The Prosecution Evidence :- 11. As mentioned in Table – I hereinabove, the prosecution side examined six witnesses as prosecution witnesses [P.W.s]. 12. P.W.1, Wezhepe Sarah deposed to the effect that he was the Chairman of the Village Council of Leshemi Village. He stated that sometime in June, 2018, he came to know that his brother, Khapelo Sarah [A-2] who was a VCC of Lewoza Village [under Leshemi Village], was arrested by Police and was kept at the Police Station. He went to the Police Station to know why his brother, Khapelo Sarah [A-2] was arrested. Going to the Police Station, he came to know about the involvement of Khapelo Sarah [A-2] regarding keeping the contraband, Cannabis [Ganja] in his house. P.W.1 stated that he did not see the contraband, Cannabis [Ganja] which was supposedly seized from the house of Khapelo Sarah [A-2]. He stated that he could identify two accused persons, Khapelo Sarah [A-2] and Khrowepe-u, but he did not know the other accused, Vechukho Rhakho [A-1]. He exhibited the Seizure List as Ext.-P-1 and his signature therein as Ext.-P-1[a]. 12.1 In his cross-examination, P.W.1 stated that he did not see the Police personnel raiding the house of Khapelo Sarah [A-2]. He further stated that he on his own went to the Police Station after coming to know from the villagers that the Khapelo Sarah [A-2] was arrested. P.W.1 further stated that he did not see the contraband, Cannabis [Ganja] at the Police Station. He also did not know the quantity of the seized contraband, Cannabis [Ganja] and to whom the seized contraband belonged. 13. P.W.1 further stated that he did not see the contraband, Cannabis [Ganja] at the Police Station. He also did not know the quantity of the seized contraband, Cannabis [Ganja] and to whom the seized contraband belonged. 13. P.W.2, Lhouvelo Koza deposed to the effect that at around 08-30 p.m. on 31.05.2018, he along with the I.O. and other Police personnel went to Lewoza Village and thereafter, to the house of Khapelo Sarah [A-2] on a tip received at the Khezhakeno Police Station. Going there, they found contraband, Cannabis [Ganja] in packets of 10 kg each, which weighed 450 kg [approx.]. When they reached the house, Khapelo Sarah [A-2] and other family members were present. On entering the house, they found the packets of contraband, Cannabis [Ganja] in an open room. P.W.2 further stated that the packets were not hidden anywhere but kept in an open room. Khapelo Sarah [A-2] was arrested and he was brought to the Police Station. P.W.2 stated that he could identify Khapelo Sarah [A-2] who was present in the Court and also the exhibited sample, which was produced before the Court. P.W.2 exhibited his signature in the Seizure List as Ext.-P-1[b]. 13.1. When P.W.2 was cross-examined, he stated that he went to the house of Khapelo Sarah [A-2] on 31.05.2018. He further stated that the contraband, Cannabis [Ganja] packets were not measured and they relied on the information of the accused persons, who stated that the contraband, Cannabis [Ganja] packets had a weight of 450 kg. P.W.2 further stated that the contraband, Cannabis [Ganja] belonged to Khapelo Sarah [A-2]. 14. The wife of Khapelo Sarah [A-2], Smti. Solhou-u was examined as P.W.3. P.W.3 stated that she is a farmer. P.W.3 stated about the incident by deposing that she did not remember the time or the month or the year when the incident occurred. She only remembered that it was at night when the Police personnel came to their house. P.W.3 stated that before the Police personnel came to the house, one person named Apa seemed to have kept some stuff in their house but she did not even know that it was Cannabis [Ganja]. The Police personnel asked them to open the door and on opening the door, they asked for the contraband. P.W.3 stated that she never knew that the stuff kept in the house were Cannabis [Ganja]. The Police personnel asked them to open the door and on opening the door, they asked for the contraband. P.W.3 stated that she never knew that the stuff kept in the house were Cannabis [Ganja]. She further stated that the things were kept in bazu [an open room outside the main room which is a corridor like room]. The Police personnel arrested her husband, Khapelo Sarah [A-2] and took him away. P.W.3 further stated that she got very scared to tell the incident to anyone. P.W.3 further stated that Apa was known to her. So, when Apa asked her that he would keep some stuff over phone, she consented. 14.1. In cross-examination, P.W.3 stated that she knew that some stuff had been kept in her house. But, she did not know that it was contraband substance, Cannabis [Ganja]. P.W.3 further stated that Vechukho Rhakho [A-1] and Apale never told that they would keep Cannabis [Ganja] in her house. P.W.3 deposed that she did not see Apa bringing the stuff. 15. P.W.4, Kedungulo Lomi stated that he was serving, at the time of his deposition, as the Secretary of the Village Council, Lewoza Village. At the time when the incident took place also, he was the Secretary of the Village Council. The accused, Khapelo Sarah [A-2] was the then Chairman of the Village Council. About the incident, P.W.4 stated that he got the information from the villagers that the Khapelo Sarah [A-2] was arrested by Police on the ground that contraband substance, Cannabis [Ganja] was found in his house. P.W.4 deposed that he came to know about it only on the next day after Khapelo Sarah’s [A-2] arrest. In order to show his [P.W.4] concern that Khapelo Sarah [A-2], being a responsible leader, would never indulge in such illegal activity, he [P.W.4] went to meet the Chairman of the Village Council, Leshemi Village to state about Khapelo Sarah’s [A-2] reputation. He went to meet the Chairman of the Village Counsel, Leshemi Village because Lewoza Village was closely connected with Leshemi Village. 15.1. When P.W.4 was cross-examined, P.W.4 stated that he on his own went to meet the Chairman of the Village Council, Leshemi Village after coming to know about arrest of Khapelo Sarah [A-2]. P.W.4 deposed that he did not append his signature in any Police documents. 15.1. When P.W.4 was cross-examined, P.W.4 stated that he on his own went to meet the Chairman of the Village Council, Leshemi Village after coming to know about arrest of Khapelo Sarah [A-2]. P.W.4 deposed that he did not append his signature in any Police documents. He did not see the contraband, Cannabis [Ganja] which were seized from the house of Khapelo Sarah [A-2] and also did not know how many kilograms of Ganja were found. P.W.4 stated that except Khapelo Sarah [A-2], he had not seen or did not know the other accused persons. P.W.4 claimed ignorance about the ownership of the seized contraband, Cannabis [Ganja]. 16. P.W.5, Selu Koza as the informant stated that when the incident took place, he was posted at Pfutsero Police Station. About the incident, P.W.5 stated that at around 11-00 p.m. on 30.05.2018, he received instruction from the SDPO, Pfutsero Police Station to reach Lewoza Village and accordingly, he rushed to Lewoza Village. Reaching there, he found a Police team waiting for him on the road side and he was informed that they had to go to the house of Khapelo Sarah [A-2] to raid his house because information was received that contraband, Cannabis [Ganja] was kept in his house. After reaching the house of Khapelo Sarah [A-2], the house was searched and the contraband, Cannabis [Ganja] was found in one store room. When Khapelo Sarah [A-2] was arrested, Khapelo Sarah’s [A-2] son and wife were present in the house. The team brought the accused, Khapelo Sarah [A-2] along with the consignment of seized contraband, Cannabis [Ganja] to Pfutsero Police Station at first. Since the jurisdiction fell under Khezhokeno Police Station, the case was registered at Khezhokeno Police station and he filed the FIR before the Officer In-Charge, Khezhokeno Police Station. P.W.5 further stated that he did not exactly remember the number of packets of contraband, Cannabis [Ganja] seized from the house of Khapelo Sarah [A-2]. He testified that he could identify the seized contraband, Cannabis [Ganja] produced in the Court and the accused Khapelo Sarah [A-2] who was in the Court on that day. P.W.5 exhibited the FIR as Ext.-P-2 and his signature therein as Ext.-P-2[a]. 16.1. During cross-examination, P.W.5 stated that he was serving in the capacity of an Assistant Sub-Inspector [ASI] of Police at the time of lodging the FIR. P.W.5 exhibited the FIR as Ext.-P-2 and his signature therein as Ext.-P-2[a]. 16.1. During cross-examination, P.W.5 stated that he was serving in the capacity of an Assistant Sub-Inspector [ASI] of Police at the time of lodging the FIR. P.W.5 further stated that the incident happened on 30.05.2018 and the consignment of contraband, Cannabis [Ganja] was found in the residence of Khapelo Sarah [A-2]. P.W.5 testified that as the contraband substance was found in the house of Khapelo Sarah [A-2], Khapelo Sarah [A-2] was liable even if he stated that it did not belong to him. P.W.5 further stated that no independent witnesses accompanied the Police personnel to the place of occurrence. He further stated that he did not exactly remember the quantity of seized contraband but it was about 500 kgs. He further stated that the SDPO, Pfutsero was also part of the raid made in the house of Khapelo Sarah [A-2]. 17. P.W.6, Wezhietsu Wetsah at the time of testimony, was serving as a Sub-Inspector –cum– the Second Officer In-Charge of Pfutsero Police Station. He stated that when the incident took place, he was serving as the Officer In-Charge, Khezhakeno Police Station and he was the Investigating Officer [I.O.] of the case. P.W.6 stated that on 30.11.2018, he received a call from the Officer In-Charge, Pfutsero Police Station that some Cannabis [Ganja] were seized along with the accused and he was instructed to visit Pfutsero Police Station and receive them. He accordingly went and seized the contraband, Cannabis [Gamja] and took the accused, Khapelo Sarah [A-2] to Khezhokeno Police Station. The accused, Vechukho Rhakho [A-1] came and surrendered himself before Khezhakeno Police Station on 30.11.2018. Both the accused persons were forwarded to the Court. Thereafter, he recorded the statements of the informant [P.W.5], the accused persons and the witnesses. When he interrogated Solhou-u [P.W.3], wife of Khapelo Sarah [A-2], she confirmed that contraband, Cannabis [Ganja] belonged to one lady named Apale. Apale was also arrested and forwarded to the Court. As per his investigation, forty-five packets of the contraband, Cannabis [Ganja] were seized from the house of Khapelo Sarah [A-2] and there were 10 kgs [approx.] in each packet and the packets weighed about 445 kgs [approx.]. Apale was also arrested and forwarded to the Court. As per his investigation, forty-five packets of the contraband, Cannabis [Ganja] were seized from the house of Khapelo Sarah [A-2] and there were 10 kgs [approx.] in each packet and the packets weighed about 445 kgs [approx.]. He stated that the case was of possession and transportation of contraband, Cannabis [Ganja] and the contraband was found in the house of Khapelo Sarah [A-2] and his wife, Solhou-u [P.W.3] named Apale as the transporter for selling. P.W.6 stated that Vechukho Rhakho’s [A-1] involvement could not be ruled out because Vechukho Rhakho [A-1] himself surrendered at the Police Station stating that the contraband, Cannabis [Ganja] belonged to him. P.W.6 stated to have taken photographs of the seized contraband, Cannabis [Ganja] which were made part of the Charge-Sheet and the statements of the prosecution witnesses. He further stated that samples of the contraband, Cannabis [Ganja] were drawn before the Magistrate/SDO [Civil], Pfutsero and were sent to the FSL, Dimapur through the Superintendent of Police, Phek. The result in the FSL Report stated that the contraband substance was Cannabis [Ganja]. He further stated that he could identify the exhibit samples produced before the Court and he was also able to identify all the three accused persons. P.W.6 exhibited the Charge-Sheet as Ext.- P-3 and his signature therein as Ext.- P-3[a]. P.W.6 also exhibited the FSL Report and the photographs of the seized contraband taken along with the accused as Ext.- P-4 and Ext- P-5 respectively. 17.1. In his cross-examination, P.W.6 stated that incident took place on 29.11.2018 and he was called by the Officer In-Charge, Pfutsero Police Station to reach Pfutsero Police Station and to collect the contraband, Cannabis [Ganja] and to take the accused. P.W.6 further deposed that the accused, Khapelo Sarah [A-2] was arrested on 29.11.2018. He further stated that a total of forty-five packets of Cannabis [Ganja], each weighing 10 kgs [approx.], were seized from the house of the accused, Khapelo Sarah [A-2]. He further stated that it weighted 445 kgs [approx.] but he did not weigh them. P.W.6 stated that he did not know whether there was any presence of public at the time of raiding the house of Khapelo Sarah [A-2]. He further stated that it weighted 445 kgs [approx.] but he did not weigh them. P.W.6 stated that he did not know whether there was any presence of public at the time of raiding the house of Khapelo Sarah [A-2]. He also stated that after arrest, the accused persons, Vechukho Rhakho [A-1] and Khapelo Sarah [A-2] were forwarded to the Court before 20.06.2019 and the accused, Apale was forwarded to the Court on 20.06.2019. P.W.6 further deposed to the effect that he drew exhibit samples in three packets for the purpose of sending it to the FSL for report but he did not know exactly how much grams were put in each packet. He guessed that it was about 20-30 grams. P.W.6 also stated that all the three accused persons were owners of the contraband, Cannabis [Ganja] for the reason that the packets of contraband, Cannabis [Ganja] were found in the house of Khapelo Sarah [A-2]; Vechukho Rhakho [A-1] himself surrendered stating that he was the owner of the contraband, Cannabis [Ganja]; and the wife of Khapelo Sarah [A-2] stated that the contraband, Cannabis [Ganja] belonged to Apale. K. The relevant procedural provisions of the NDPS Act :- 18. Before any discussion on the procedures followed with regard to entry, search, recovery and seizure of the alleged contraband, Cannabis [Ganja] from the house of the accused, Khapelo Sarah [A-2], it appears apposite to refer to the relevant provisions contained in the NDPS Act. In this connection, Section 42, Section 51 and Section 57, Section 52A of the NDPS Act, which have provided as follows :- The Narcotic Drugs and Psychotropic Substances Act, 1985 :- 42. Power of entry, search, seizure and arrest without warrant or authorisation. In this connection, Section 42, Section 51 and Section 57, Section 52A of the NDPS Act, which have provided as follows :- The Narcotic Drugs and Psychotropic Substances Act, 1985 :- 42. Power of entry, search, seizure and arrest without warrant or authorisation. — [1] Any such officer being an officer superior in rank to a peon, sepoy or constable of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer being an officer superior in rank to a peon, sepoy or constable of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that 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 VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, — [a] enter into and search any such building, conveyance or place; [b] in case of resistance, break open any door and remove any obstacle to such entry; [c] seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and [d] detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act : Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector : 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. [2] Where an officer takes down any information in writing under sub-section [1] or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 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 [2 of 1974] 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. 52A. Disposal of seized narcotic drugs and psychotropic substances.— [1] The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. [2] Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the Officer-in-Charge of the nearest Police Station or to the officer empowered under section 53, the officer referred to in sub-section [1] shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the Officer referred to in sub-section [1] may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of — [a] certifying the correctness of the inventory so prepared; or [b] taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or [c] allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. [3] Where an application is made under sub-section [2], the Magistrate shall, as soon as may be, allow the application. [4] Notwithstanding anything contained in the Indian Evidence Act, 1872 [1 of 1972] or the Code of Criminal Procedure, 1973 [2 of 1974], every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section [2] and certified by the Magistrate, as primary evidence in respect of such offence. 57. Report of arrest and seizure. — Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. L. The penal provisions of the NDPS Act involved :- 19. As per the definition provided in Section 2[iii][b] of the NDPS Act, ‘Cannabis [Hemp]’ means Ganja, that is, the flowering of fruiting tops of the Cannabis plant [excluding the seeds and leaves when not accompanied by the tops], by whatever named there may be known or designated. L. The penal provisions of the NDPS Act involved :- 19. As per the definition provided in Section 2[iii][b] of the NDPS Act, ‘Cannabis [Hemp]’ means Ganja, that is, the flowering of fruiting tops of the Cannabis plant [excluding the seeds and leaves when not accompanied by the tops], by whatever named there may be known or designated. As per Section 2[xiv], ‘Narcotic Drug’ inter-alia means Cannabis [Hemp]. Section 20[b][ii][C] has provided that whoever, in contravention of any provisions of the NDPS Act or any rule or order made or condition of licence granted thereunder, inter-alia possesses or purchases or transports Cannabis, involving commercial quantity, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; provided that the Court may, for reasons to be recorded in the Judgment, impose a fine exceeding two lakhs. In view of Section 2[viia], ‘commercial quantity’, in relation to narcotic drugs, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. M. Discussion and Reasons for Decision :- [i] Ref : Section 42, NDPS Act. 20. In view of Section 2[viia], ‘commercial quantity’, in relation to narcotic drugs, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. M. Discussion and Reasons for Decision :- [i] Ref : Section 42, NDPS Act. 20. The provision contained in sub-section [1] of Section 42 of the NDPS Act has inter-alia prescribed that an officer above the ranks mentioned therein or an Empowered Officer [hereinafter referred to as ‘the Empowered Officer’, for easy reference], if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the NDPS 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 the relevant provisions of the NDPS Act or concealed in any building, conveyance or enclosed space, may between sunrise or sunset, enter into and search any such building, conveyance or place; seize such drug or substance and any other article and conveyance or any document; and detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under the NDPS Act. The second proviso to sub-section [1] of Section 42 has laid down that if the Empowered Officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, the Empowered Officer may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise, after recording the grounds of his belief. Sub-section [2] of Section 42 has provided that where an Empowered Officer takes down any information in writing under sub-section [1] or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 20.1. Sub-section [2] of Section 42 has provided that where an Empowered Officer takes down any information in writing under sub-section [1] or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 20.1. The provisions contained in Section 42, as a whole, has come for consideration before a Constitution Bench of the Hon’ble Supreme Court of India in Karnail Singh vs. State of Haryana, reported in [2009] 8 SCC 539. After surveying a number of previous decisions, the Constitution Bench has observed as under :- 35. In conclusion, what is to be noticed is that Abdul Rashid, [2000] 2 SCC 513; did not equire literal compliance with the requirements of Sections 42[1] and 42[2] nor did Sajan Abraham, [2001] 6 SCC 692; hold that the requirements of Sections 42[1] and 42[2] need not be fulfilled at all. The effect of the two decisions was as follows : [a] The officer on receiving the information of the nature referred to in sub-section [1] of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses [a] to [d] of Section 42 [1]. [b] But if the information was received when the officer was not in the Police Station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses [a] to [d] of Section 42 [1] and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. [c] In other words, the compliance with the requirements of Sections 42 [1] and 42 [2] in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. [c] In other words, the compliance with the requirements of Sections 42 [1] and 42 [2] in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. [d] While total non-compliance with requirements of subsections [1] and [2] of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the Police Officer was in the Police Station with sufficient time to take action, and if the Police Officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the Police Officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. 20.2. In the present case, the prosecution story is that at around 22-30 hours on 30.05.2018, a telephonic information was received at Pfutsero Police Station from the Officer In-Charge, Pfutsero Police Station to the effect that the Sub-Divisional Police Officer, Pfutsero received an information from a reliable source about concealment of a huge quantities of suspected contraband, Cannabis [Ganja] in a house belonging to the accused, Khapelo Sarah [A-2] of Lewoza Village under Khezhokeno Police Station. It was also projected that on receiving the information, an entry was registered in the General Diary of Pfutsero Police Station vide General Diary Entry no. 347 at 10-30 hours. But, the prosecution side did not exhibit and prove the said General Diary Entry no. 347, which was purportedly registered at 22-30 hours at Pfutsero Police Station. It was further projected that on receipt of the information, it was found that an immediate raid was required and a team of Police personnel proceeded to the suspected house, after duly informing Khezhokeno Police Station in the apprehension that if the raid and search were not made immediately, there was possibility of taking the consignment of contraband, Cannabis [Ganja] out of the house of the accused, Khapelo Sarah [A-2]. P.W.5, Selu Koza who was posted at Pfutsero Police Station on 30.05.2018, testified to the effect that at around 11-00 p.m. on 30.05.2018, he received instruction from the SDPO, Pfutsero to reach Lewoza Village and accordingly, he rushed to Lewoza Village and met a team of Police personnel there waiting for him. Thereafter, he [P.W.5] along with the team of Police personnel raided and searched the house of the accused, Khapelo Sarah [A-2] and had recovered and seized packets of contraband, Cannabis [Ganja] therefrom. The General Diary Entry no. 139/2018, stated to have been registered Khezhakeno Police Station on 31.05.2018, was also exhibited during the trial. 20.3. From the testimony of P.W.5, Selu Koza, it is evident that the raid, search, seizure and recovery of the contraband, Cannabis [Ganja] were made after sunset purportedly on the belief that such an action was necessitated for not providing any opportunity for concealment or transportation of the contraband, Cannabis [Ganja]. In case of such circumstances necessitating immediate action, the recording of the information in writing stating his reason to belief and sending a copy thereof to the official superior, as mandated under sub-section [2] of Section 42, can get postponed by a reasonable period, that is, after the search, entry and seizure. In this case, the prosecution side did not exhibit any documentary evidence to the effect that before the raid, search, seizure and recovery of the contraband, Cannabis [Ganja] made after sunset the empowered officer had complied with the mandate contained in the second proviso to sub-section [1] of Section 42 of the NDPS Act. In this case, the prosecution side did not exhibit any documentary evidence to the effect that before the raid, search, seizure and recovery of the contraband, Cannabis [Ganja] made after sunset the empowered officer had complied with the mandate contained in the second proviso to sub-section [1] of Section 42 of the NDPS Act. From the evidence on record, it emerges that there was no compliance with requirements of sub-section [1] and sub-section [2] of Section 42, even belatedly, which is not permissible. Thus, we find that the entry into and search in the house of the accused, Khapelo Sarah [A-2] and the consequent recovery and seizure of the contraband, Cannabis [Ganja] from the house of the accused, Khapelo Sarah [A-2] were not in compliance of Section 42 of the NPDS Act. [ii] Ref : Section 57, NDPS Act. 21. Section 57 of the NDPS Act has called for an action after arrest and seizure. It has been prescribed therein that whenever any person makes any arrest or seizure, under the NDPS Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. In the case in hand, the alleged recovery and seizure of the contraband, Cannabis [Ganja] weighing 450 kgs [approx.] were made at around 11-00 hours on 30.05.2018. P.W.5, Selu Koza was the only witness from the team of Police personnel which made the entry, search, seizure and recovery of the contraband, Cannabis [Ganja] from the house of the accused, Khapelo Sarah [A-2], who gave testimony about the same. P.W.5, Selu Koza was, however, found silent about preparing any Seizure List at the place/spot of recovery of the contraband, Cannabis [Ganja] weighing about 450 kgs [approx.] containing ten plastic packets in forty-five packets though he deposed that the contraband was ‘seized’ to support such ‘seizure’ at the house of the accused, Khapelo Sarah [A-2] neither P.W.5, Selu Koza nor P.W.6, Wezhutsu Wetsah, the I.O. of the case had exhibited any Seizure List prepared at the house of the accused, Khapelo Sarah [A-2]. 21.1. P.W.5, Selu Koza purportedly being the Seizing & Arresting Officer, had an obligation under Section 57, NDPS Act to make a full report of all the particulars of such seizure within forty-eight hours next after such seizure & arrest. 21.1. P.W.5, Selu Koza purportedly being the Seizing & Arresting Officer, had an obligation under Section 57, NDPS Act to make a full report of all the particulars of such seizure within forty-eight hours next after such seizure & arrest. The prosecution side did not exhibit any report during the trial stating it to be report under Section 57 of the NDPS Act. P.W.5, Selu Koza had, however, lodged the FIR on 31.05.2018 which contained certain details of [i] the time and date of entry, search, recovery and seizure; [ii] place of seizure; [iii] quantity [approx.] of suspected contraband recovered; and [iv] accused person [A-2] arrested. The Hon’ble Supreme Court in State of Punjab vs. Balbir Singh, [1994] 3 SCC 299, has observed that as far as compliance with the provisions of Section 57 of the NDPS Act is concerned, the same is not mandatory. From the decisions in Balbir Singh [supra] and Sajan Abraham vs. State of Kerala, [2001] 6 SCC 692, it is clear that substantial compliance of Section 57 of the NDPS Act would suffice and making of a report of seizure and/or arrest within forty-eight hours next after such seizure and/or arrest is not a sine qua non as the provision is directory. In the case in hand, P.W.5 as the purported Seizing & Arresting Officer, had lodged the First Information Report [FIR] on 31.05.2018, that is, a day after the alleged entry, search, recovery and seizure before the Officer In-Charge, Khezhokeno Police Station, which appears to be in substantial compliance of the provisions of Section 57 of the NDPS Act and, therefore, it cannot be held that there was violation of the provisions contained in Section 57 of the NDPS Act in the present case. [iii] Ref : Section 51, NDPS Act. 22. Section 51 of the NDPS Act has prescribed that the provisions of the Code of Criminal Procedure, 1973 [‘CrPC’ or ‘the Code’] shall apply, in so far as they are not inconsistent with the provisions of the NDPS Act inter-alia to search and seizures made under the NDPS Act. As no specific procedure for search is mentioned in the NDPS Act, it is the procedure laid down in Section 100 of the Code, more particularly, sub-section [4] and sub-section [5] thereto would be applicable. As no specific procedure for search is mentioned in the NDPS Act, it is the procedure laid down in Section 100 of the Code, more particularly, sub-section [4] and sub-section [5] thereto would be applicable. As per sub-section [4] of Section 100 of the Code, before making a search under that Chapter, the officer or other person about to make it shall 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 and may issue an order in writing to them or any of them so to do. As per sub-section [5] of Section 100 of the Code, the search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. 22.1. The Hon’ble Supreme Court of India in State of Punjab vs. Balbir Singh, [1994] 3 SCC 299, has inter-alia observed that the provisions of arrest, warrant, search and seizure are incorporated in Sections 41 to 60, 70 to 81, 93 to 105 and 165, CrPC. It has been noticed that NDPS Act is not a complete code incorporating all the provisions relating to search, seizure or arrest, etc. It has been further noticed that after incorporating the broad principles regarding search, seizure or arrest, etc. in Section 41, Section 42, Section 43 and Section 49 of the NDPS Act, it has been laid down in Section 51 of the NDPS Act that the provisions of CrPC shall apply in so far as they are not inconsistent with the provisions of the NDPS Act to all warrants issued and arrests, searches and seizures made under that Act. Therefore, the provisions of Section 100, CrPC and Section 165, CrPC which are not inconsistent with the provisions of the NDPS Act are applicable for effecting search, seizure or arrest under the NDPS Act also. Therefore, the provisions of Section 100, CrPC and Section 165, CrPC which are not inconsistent with the provisions of the NDPS Act are applicable for effecting search, seizure or arrest under the NDPS Act also. It has been observed that the words ‘in so far as they are not inconsistent with the provisions of this Act’ in Section 51 of the NDPS Act are of significance. Reference has also been made to Section 4 of the CrPC which has provided that all offences under any other law shall be investigated and inquired as mentioned therein. It has been held that consequently, the provisions of the CrPC shall be applicable in so far as they are not inconsistent with the NDPS Act to all warrants, searches, seizures or arrests made under the NDPS Act. If the Officer happens to be one of those empowered officers under the NDPS Act then also, he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter, proceed from that stage in accordance with the provisions of the NDPS Act. It has been held that non-compliance of these provisions in Section 100, CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. In such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. 22.2. It is settled that as an accused if found guilty of an offence involving commercial quantity of any contraband, is visited with serious consequences, there has to be strict compliance of the procedure. In an investigation involving contraband substances, ‘search’, ‘recovery’, ‘possession’ and ‘seizure’ are vital parts of the investigation and strict compliance are necessary to ensure that a person is not falsely implicated. In an investigation involving contraband substances, ‘search’, ‘recovery’, ‘possession’ and ‘seizure’ are vital parts of the investigation and strict compliance are necessary to ensure that a person is not falsely implicated. Search being an integral part of the investigation under the NDPS Act and is a vital means to get evidence of the offence, an accused is entitled to the safeguards envisaged in the NDPS Act and the Code. If the safeguards are not followed, the logical consequence would be that the search would not have the same credibility which a search should have. 22.3. In the present case, the prosecution side exhibited a document, Ext.- P-1 as the ‘property search & seizure form/arrest/court surrender form’. On perusal of Ext.-P-1, it is noticed that it was prepared on 01.06.2018 under the hand of P.W.6, Wezhietsu Wetsah, the I.O. of the case, who was the Sub-Inspector attached to Khezhakeno Police Station. From the evidence on record, it has emerged that no Police personnel from Khezhakeno Police Station was involved in the acts of entry and search in the house of the accused, Khapelo Sarah [A-2] and also recovery and seizure on 30.05.2018. In Ext.- P-1, it is written that it was a re-seizure from Pfutsero Ploce Station. Ext.- P-1 had contained the names of P.W.1, Wezhepe Sarah and P.W.2, Lhouvelo Koza as the seizure witnesses. P.W.1, Wezhepe Sarah in his testimony, had stated that he went to the Police Station only after receiving the information that his brother, Khapelo Sarah [A-2] was arrested. P.W.1 further deposed that at the Police Station, he did not see the contraband, Cannabis [Ganja] which was supposedly seized from the house of the accused, Khapelo Sarah [A-2]. P.W.1, Wezhepe Sarah further stated that he did not see the Police personnel raiding the house of Khapelo Sarah [A-2]. P.W.2, Lhouvelo Koza had stated, in his testimony, that at around 08-30 p.m. on 31.05.2018, he along with the I.O. and other police personnel went to the house of accused, Khapelo Sarah [A-2] at Lewoza Village and on entering the house, they found the contraband, Cannabis [Ganja] in a room. Such part of the testimony of P.W.2, Lhouvelo Koza is not consistent with the version of the prosecution projected in the FIR to the effect that the raid, search, recovery and seizure was made on 30.05.2018. Such part of the testimony of P.W.2, Lhouvelo Koza is not consistent with the version of the prosecution projected in the FIR to the effect that the raid, search, recovery and seizure was made on 30.05.2018. The signature appearing in Ext.-P-1 goes to indicate, on the other hand, that P.W.2, Lhouvelo Koza subscribed his signature on Ext.P-1 on 01.06.2018 as Ext.- P-1 was prepared by the I.O., P.W.6, Wezhietsu Wetsah only on 01.06.2018. In his testimony, the I.O. - P.W.6, Wezhietsu Wetsah testified that it was on 30.11.2018, he received a phone call from the Officer In-Charge, Pfutsero Police Station that the contraband, Cannabis [Ganja] was seized from the house of the accused, Khapelo Sarah [A-2] and the accused, Khapelo Sarah [A-2] was arrested and P.W.6 was told to come and receive them at Pfutsero Police Station, meaning thereby, the acts of search, recovery and seizure were already over. P.W.6, Wezhietsu Wetsah testified to the effect that the incident took place on 29.11.2018. The I.O. - P.W.6, Wezhietsu Wetsah further testified to the effect that he accordingly went and seized the contraband, Cannabis [Ganja] and took the accused, Khapelo Sarah [A-2] to Khezhokeno Police Station. P.W.5, Selu Koza had, in his cross-examination, stated that no independent witnesses accompanied the Police personnel to the place of occurrence. Thus, it is clear that Ext.-P-1 was prepared on 30.05.2018 at the time of seizure and it was only a re-seizure document. In the face of such evidence, it is apparent that no safeguards contemplated in the NDPS Act read with Section 100, CrPC were followed at the stages of entry, search, recovery and seizure of the contraband, Cannabis [Ganja]. The manners in which the entry and searches were allegedly made inside the house of the accused, Khapelo Sarah [A-2] and the recovery and seizure of the suspected contraband, Cannabis [Ganja] weighing about 450 kgs in forty-five packets of 10 kgs each, from inside the house of the accused by Police are found to be in complete disregard to the procedure laid down in law regarding search and seizure in Section 51 of the NDPS Act and Section 100 read with Section 165 of the Code. The testimony of the important witnesses – P.W.1, P.W.2, P.W.5 & P.W.6 – are not consistent with each other as regards presence of independent witnesses and preparation of any Seizure List at the spot/place of recovery, that is, the house of the accused, Khapelo Sarah [A-2] as no seizure list prepared at the house of the accused, Khapelo Sarah [A-2]. Thus, as a result, the entire prosecution story as regards entry, search, recovery and seizure of contraband, Cannabis [Ganja] weighing about 450 kgs in forty-five packets of 10 kgs each, from inside the house of the accused is full of doubts and they cannot relied upon. [iv] Ref : Section 52A, NDPS Act. 23. As per sub-section [2] of Section 52A, where any contraband or conveyance 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 required to prepare an inventory of such contraband or conveyance containing such details, mentioned therein, or such other 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, as the case may be, may consider relevant to the identity of the seized contraband or conveyance in any proceedings under the NDPS Act. The officer has to make an application to a 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 seized contraband or conveyance and certifying such photographs as true; and [c] allowing to draw representative samples of such seized samples, in the presence of such Magistrate and certifying the correctness of any list of samples. A mandate is contained in subsection [3] to the effect that where an application is made under sub-section [2], the Magistrate shall, as soon as may be, allow the application. Sub-section [4] of Section 52A is with a non-obstante clause. It has prescribed that notwithstanding anything contained in the Indian Evidence Act, 1872 or the CrPC, every court trying an offence under the NDPS Act, shall treat the inventory, the photographs of the seized contraband or conveyance and any list of samples drawn under subsection [2] of Section 52A and certified by the Magistrate, as primary evidence in respect of such offence. 23.1 The provisions of Section 52A of the NDPS Act has come under consideration of the Hon’ble Supreme Court of India in the case of Union of India vs. Mohanlal, reported in [2016] 3 SCC 379. The Hon’ble Supreme Court of India in Mohanlal [supra] has observed as under :- 15. It is manifest from Section 52-A [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. This is so especially when according to Section 52-A[4] of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections [2] and [3] of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act 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. * * * * * * 27. 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. * * * * * * 27. Section 52-A as amended provides for disposal of the seized contraband in the manner stipulated by the Government under sub-section [1] of that section. Notification dated 16.01.2015, in supersession of the earlier Notification dated 10.05.2007 not only stipulates that all drugs and psychotropic substances have to be disposed of but also identifies the officers who shall initiate action for disposal and the procedure to be followed for such disposal. Para 4 of the Notification, inter alia, provides that Officer-in-Charge of the police station shall within 30 days from the date of receipt of chemical analysis report of drugs, psychotropic substances or controlled substances apply to any Magistrate under Section 52-A [2] in terms of Annexure 2 to the said Notification. 28. Sub-para [2] of Para 4 provides that after the Magistrate allows the application under sub-section [3] of Section 52-A, the officer mentioned in sub-para [1] of Para 4 shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of seized items to the Chairman of the Drugs Disposal Committee for a decision by the Committee on the question of disposal. … 23.2. The procedure prescribed in Section 52A of the NDPS Act has also come up for consideration subsequently in the case of Mangilal vs. State of Madhya Pradesh, reported in [2023] 10 SCR 517. The relevant excerpts from the decision in Mangilal are quoted hereinbelow :- 4. Sub-section [1] of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter. 5. Sub-section [2] of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter. 5. Sub-section [2] of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the Magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a Magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence. 6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. In due compliance of Section 52A [1] of the NDPS Act the Ministry of Finance [Department of Revenue] issued a Notification No. G.S.R. 339 [E] dated 10.05.2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a certificate of destruction : * * * * * * 7. To be noted, the aforesaid notification was in existence at the time of the commission of the offence alleged in the case on hand, stood repealed with effect from 23.12.2022 vide Notification No. G.S.R.899[E]. In any case a notification issued in derogation of the powers conferred under sub-section [1] of Section 52A of the NDPS Act can never contradict the main provision, particularly sub-Section [2]. However, any guideline issued by way of a notification in consonance with Section 52A of the NDPS Act has to be followed mandatorily. 8. In any case a notification issued in derogation of the powers conferred under sub-section [1] of Section 52A of the NDPS Act can never contradict the main provision, particularly sub-Section [2]. However, any guideline issued by way of a notification in consonance with Section 52A of the NDPS Act has to be followed mandatorily. 8. 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… 23.3. It may be relevant to mention that three Notifications :- [i] Notification no. G.S.R. 339 [E] dated 10.05.2007; [ii] Notification no. G.S.R. 38 [E] dated 16.01.2015; and [iii] Notification no. G.S.R. 899 [E] dated 23.12.2022 had/have been issued by the Ministry of Finance [Department of Revenue], Government of India in exercise of the powers inter alia conferred by Section 52A of the NDPS Act, 1985. The Notifications had/has laid down detail procedure for disposal of the narcotic drugs, psychotropic substances, controlled substances [‘contraband substances’, for short] and conveyances, after their seizure. 23.4. The Notifications had/has laid down detail procedure for disposal of the narcotic drugs, psychotropic substances, controlled substances [‘contraband substances’, for short] and conveyances, after their seizure. 23.4. It is not the case of the prosecution that the seized contraband, Cannabis [Ganja] weighing 450 kgs [approx.] in total, and shown to be seized vide the Seizure List [Ext.-P-1], had been disposed of at any point of time prior to culmination of the trial following the procedure laid down in Section 52A of the NDPS Act and in the then extant Notification issued by the Central Government in exercise of the powers conferred by sub-section [1] of Section 52A of the NDPS Act laying down the detailed procedure for mode and manner of disposal of the seized contraband substance through a Drug Disposal Committee with issuance of a Certificate of Destruction finally. Since it is not the case of the prosecution that the contraband, Cannabis [Ganja] seized in the present case, had been destroyed following such procedure, it can be presumed that such seized contraband, Cannabis [Ganja] were in safe custody and possession of the prosecution. The prosecution evidence did not throw any light as to where the allegedly seized packets of contraband, Cannabis [Ganja] were kept after seizure till trial and in the absence of evidence demonstrating the safe custody of the seized quantity of contraband, Cannabis [Ganja] has the effect of weaking the prosecution case. 23.5. In the trial, it was incumbent for the prosecution to produce and exhibit the entire quantities of seized contraband, Cannabis [Ganja], weighing 450 kgs [approx.], which were allegedly seized from the possession of the accused were in custody of the prosecution side after seizure. In Jitendra vs. State of Madhya Pradesh, [2004] 10 SCC 562, it has been hold that the best evidence would have been the seized material, which ought to have been produced during the trial and marked as material objects, and mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. Subsequently, in the case of Noor Aga vs. State of Punjab, [2008] 16 SCC 417, it has been held that physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Subsequently, in the case of Noor Aga vs. State of Punjab, [2008] 16 SCC 417, it has been held that physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114[g] of the Evidence Act, 1872. Conspicuously, during the trial, the seized contraband, Cannabis [Ganja], weighing 450 kgs [approx.], were not produced physically before the Court. Thus, the adverse presumption under Section 114 [g] of the Evidence Act, 1872 is to be drawn in view of failure of the prosecution to exhibit the seized contraband, Cannabis [Ganja], weighing 450 kgs [approx.] and packed in forty-five packets, before the learned Special Court. 23.6. In Gorakh Nath Prasad vs. State of Bihar, reported in [2018] 2 SCC 305, it has been held that the mere fact of a Forensic Science Laboratory [FSL] Report, being available is no confirmation either of the seizure or that what was seized was Cannabis [Ganja], in the absence of the production of the seized item in Court as an exhibit. In the said case, no explanation had also been furnished by the prosecution for non-production of the Cannabis [Ganja] as an exhibit in the trial. In such backdrop, it has been held that the non-production of the seized material is to be considered fatal to the prosecution case and the benefit of doubt is to be given to the appellant. To reach such a view, the decision in Jitendra [supra] has been relied. In Ashok vs. State of Madhya Pradesh, [2011] 5 SCC 123, the alleged narcotic powder seized from the possession of the appellant was not produced before the trial as a material exhibit and there was no explanation for its non-production. It has been held that there was no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused. 23.7. By the incorporation of sub-section [4] of Section 52A of the NDPS Act, with non-obstante clause, an alternative mode for primary evidence has been provided for. It has been held that there was no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused. 23.7. By the incorporation of sub-section [4] of Section 52A of the NDPS Act, with non-obstante clause, an alternative mode for primary evidence has been provided for. As per the mandate contained therein, every court trying an offence under the NDPS Act shall treat the inventory, the photographs of the seized contraband substance, taken before the Magistrate, and the list of samples, drawn in presence of the Magistrate, under sub-section [2] thereof and certified by the Magistrate, as primary evidence in respect of such offence. 23.8. In view of such alternative mode of presenting primary evidence and non-production of the seized quantities of contraband, Cannabis [Ganja], weighing 450 kgs [approx.], physically, before the learned Special Court, obligation was clearly cast on the prosecution to produce and exhibit [i] the inventory of the seized contraband substance, Cannabis [Ganja], weighing 450 kgs [approx.]; [ii] the photographs of the seized contraband, Cannabis [Ganja], which must be taken before the Magistrate and were seized from the possession of the accused; and [iii] the list of samples drawn before the Magistrate; under sub-section [2] of Section 52A of the NDPS Act, with due certification from the Magistrate, as primary evidence in order to bring the charge under Section 20[b][ii][C] of the NDPS Act, 1985 home against the accused in this case. 23.9. When the documentary evidence and the material exhibits produced during the course of the trial before the learned Special Court are looked at, it is found that no inventory of seized contraband substance, Cannabis [Ganja] weighing 450 kgs [approx.], with certification by the Magistrate, was produced before the trial court by the prosecution. The prosecution neither produced any list of samples drawn with due certification of the Magistrate nor produced the duplicate samples before the trial court. Thus, not to speak of about the compliance of certification by the Magistrate as regards the correctness of the inventory prepared, the prosecution did not even exhibit any inventory with details of contraband substance, mentioned in sub-section [2] of Section 52A. The testimony of the prosecution witnesses [P.W.s], more notably, the informant [P.W.5] and the I.O. [P.W.6] maintained complete silence about preparation of an inventory. The testimony of the prosecution witnesses [P.W.s], more notably, the informant [P.W.5] and the I.O. [P.W.6] maintained complete silence about preparation of an inventory. The informant [P.W.5] and the I.O. [P.W.6] did not speak anything about the existence of the allegedly seized forty-five packets of suspected contraband, Cannabis [Ganja] and what prevented them to obtain due certification from the Magistrate. There is no evidence that photographs of the allegedly seized forty-five packets of suspected contraband, Cannabis [Ganja] were taken in presence the Magistrate and the Magistrate had certified them as true. What is mandated by sub-section [2] of Section 52A of the NDPS Act, 1985 is taking, in presence of the Magistrate, of photographs of seized contraband substance and certifying such photographs as true by the Magistrate. From the Order-Sheet of Sessions [Special] Case no. 07 of 2019, it does not appear that the seized and suspected contraband, Cannabis [Ganja], weighing 450 kgs [approx.], involved in the case, had ever been produced before the Magistrate at any point of time by Police. Thus, the very genesis of the prosecution story has come under a thick cloud of suspicion. 23.10. It has been held in Mangilal [supra] that when there is non-compliance of Section 52A of the NDPS Act and where a certificate of a Magistrate is lacking, any inventory, photograph or list of samples would not constitute primary evidence. It is a well settled proposition that if a manner of doing a particular act is prescribed, then the act must be done in that manner and in no other manner. Absence of any certification by the Magistrate of the inventory in the prescribed manner stands in clear violation of the statutorily prescribed mode. In absence of the primary evidence on the points of drawing of sample in presence of the Magistrate and of certification of the list of samples so drawn, the evidence regarding giving of positive test for Cannabis [Ganja] by the FSL/DFS vide its Report [Ext.-3] cannot also be read into evidence. 23.11. The Hon’ble Supreme Court in Mohammed Khalid and another vs. the State of Telangana, [2024] 5 SCC 393, has found that no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. 23.11. The Hon’ble Supreme Court in Mohammed Khalid and another vs. the State of Telangana, [2024] 5 SCC 393, has found that no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In such view of the matter, the Hon’ble Supreme Court has observed that the FSL Report would be nothing but a waste paper and cannot be read in evidence. 23.12. The learned Special Court appears to have not noticed the material infirmity in the case of the prosecution qua Section 52A of the NDPS Act and as a result, has fallen into error in returning the finding of guilt against the two accused-appellants. [v] The other noticeable features in the prosecution case :- 24. The I.O., P.W.6 had faltered in his testimony to depose with certainty about drawal of samples. While P.W.6 stated about drawing of three samples, the FSL Report speaks about only samples. The prosecution side had not led any evidence of remnants of the sample[s]. The I.O., P.W.6 himself was not sure about the weights of the samples. From the prosecution evidence, it has further emerged that at the time of seizure, no wightment of the forty-five packets containing suspected contraband was done and consequently, no weightment sheet was prepared. The expert who had examined the sample and submitted as a witness by the prosecution side. The Call Details Records [CDRs] which the prosecution side referred to for implicate the accused persons with the offence under Section 34, IPC, were also exhibited during the trial. In absence of such evidence, there was no other evidence to rope in the accused-appellant, Vechukho Rhkho [A-1] along with the accused-appellant, Khapelo Sarah [A-2] with the aid of Section 34, IPC. N. The Conclusion :- 25. As per the Notification no. S.O.527[E] dated 16.07.1996 issued in exercise of the powers conferred by clauses [viii] and [xxiiia] of Section 2 of the NDPS Act, a quantity of Cannabis [Ganja] equal to or above twenty kgs is commercial quantity. Section 20 of the NDPS Act, 1985 has prescribed for punishment in relation to cannabis plant and cannabis. As per the Notification no. S.O.527[E] dated 16.07.1996 issued in exercise of the powers conferred by clauses [viii] and [xxiiia] of Section 2 of the NDPS Act, a quantity of Cannabis [Ganja] equal to or above twenty kgs is commercial quantity. Section 20 of the NDPS Act, 1985 has prescribed for punishment in relation to cannabis plant and cannabis. It is stated, at the cost of repetition, as per Section 20[b][ii][C], if the quantity involves is commercial quantity, the convict is punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Since the offences under the NDPS Act are serious in nature and have prescribed stringent punishment, compliance with the statutory prescriptions and procedures contained therein shall also have to be strict and scrutiny is also stringent. It is also a settled proposition of law that in the case of doubt, the benefit of doubt, at all stages, goes in favour of the accused. Once it is established that the prosecution has failed to lead vital primary evidence, as a corollary, the trial as a whole, would stand vitiated. For the same, the accused-appellants in the case in hand, Vechukho Rhokha [A-1] and Khapelo Sarah [A-2] are clearly entitled to the benefit. 26. The photographs, exhibited as Ext.- p-5, in absence of certification as ‘true’ by the Magistrate in them cannot also be read into evidence. In the absence of primary evidence, as contemplated by Section 52A [2] of the NDPS Act, the other evidence led by the prosecution in the present case, as enumerated above, could not be termed as valid pieces of primary evidence to prove the charges framed against the accused-appellants. 27. In the light of the discussion made above and for the reasons assigned therein, we are of the firm opinion that in view of presence of too many material irregularities creating serious dents in the case of the prosecution and the failure on the part of the prosecution to lead primary evidence, as enumerated above, vitiating the trial as a whole, the conviction of the accused-appellants is not sustainable in law and the same deserves to be set aside. O. The Order :- 28. O. The Order :- 28. Accordingly, the following order is passed :- [i] The impugned Judgment and Order dated 17.06.2020 passed by the learned Special Judge, Phek, Nagaland in NDPS Case no. Sessions [Special] Case no. 07 of 2015 is set aside. [ii] Both the accused-appellants, Sri Vechukho Rhokha [A-2], the accused-appellant in Criminal Appeal no. 04 [J] of 2020 and Sri Khapelo Sarah [A-2], the accused-appellant Criminal Appeal no. 06 of 2020 are acquitted of the charges under Section 20[b][ii][C] of the NDPS Act and Section 34 of the Indian Penal Code. [iii] Both the criminal appeals, Criminal Appeal no. 04 [J] of 2020 and Criminal Appeal no. 06 of 2020 are allowed. [iv] The accused-appellant, Khapelo Sarah [A-1] was allowed to go on bail by an Order dated 07.12.202 passed in an interlocutory application, I.A. [Crl.] no. 14 of 2020 during the pendency of Criminal Appeal no. 06 of 2020. On the other hand, the accused-appellant, Vechuko Rhokha [A-1] was allowed to be released on bail by an Order dated 09.02.2021 passed in an interlocutory application, I.A. [Crl.] no. 27 of 2020 during the pendency of Criminal Appeal [Jail] no. 04 of 2020. In view of their acquittal, their bail bonds stand discharged. [v] The fine amounts, if any, deposited by the accused-appellants, A-1 and A-2 shall be refunded to them. 29. The Registry to send back the case records to the Special Court forthwith.