ORDER : Ramesh Sinha, C.J. 1. Since these aforesaid three criminal appeals have been filed against the impugned judgment dated 27.04.2023 passed by the Special Judge (N.D.P.S.), Raipur in Special Criminal Case No.22/2018, they are clubbed & heard together and are being disposed of by this common judgment. 2. Appellants-Pamosushi Vijay Paramjyoti and Ravi Nadar have preferred Criminal Appeal No.1095 of 2023 under Section 374(2) of the CrPC questioning the impugned judgment dated 27.04.2023 passed by the Special Judge (N.D.P.S.), Raipur in Special Criminal Case No.22/2018, by which they have been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced them undergo rigorous imprisonment for 15 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 years. 3. Appellant- N. Shriniwas Rao has preferred Criminal Appeal No.1310/2022 under Section 374(2) of the CrPC questioning the impugned judgment dated 27.04.2023 passed by the Special Judge (N.D.P.S.), Raipur in Special Criminal Case No.22/2018, by which he has been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced him undergo rigorous imprisonment for 15 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 years. 4. Appellant- V.V.R. Shrinivas Rao has preferred Criminal Appeal No.1310/2022 under Section 374(2) of the CrPC questioning the impugned judgment dated 27.04.2023 passed by the Special Judge (N.D.P.S.), Raipur in Special Criminal Case No.22/2018, by which he has been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced him undergo rigorous imprisonment for 15 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 years. 5. Case of the prosecution, in brief, is that on 10.02.2018 the head constable Balvant Yadav has received information through telephone that a white colour Ashok Leyland Vehicle bearing registration No. OD 30/2407 was transporting ganja from Andhra Pradesh and going to Uttar Pradesh via Dhamtari-Raipur. After receiving the information, the head constable has mentioned the said information in Rojnamcha Sanha No. 8 dated 10.02.2018 (Ex.P-48). Thereafter, the said information was sent to SHO and recorded the Rojnamcha Sanha No. 9 (Ex.P-49). After receiving the information, the head constable has mentioned the said information in Rojnamcha Sanha No. 8 dated 10.02.2018 (Ex.P-48). Thereafter, the said information was sent to SHO and recorded the Rojnamcha Sanha No. 9 (Ex.P-49). The Crime Branch has also been informed to go for investigation of the said crime in Rojnamcha Sanha No. 10 (Ex.P-50). The notice under Section 160 CrPC (Ex.P-5) was issued and Informer information Panchnama (Ex.P-6) was prepared in presence of witnesses. After that the Investigating Officer along with staff and witnesses have departed to the spot and rojnamcha sanha No. 11 and 21 (Exs. P-56 & P-58) was recorded. Acting upon the information, the suspicious truck bearing registration No. OD 30/2407 has been stopped by the investigation team which has been mentioned in Rojnamcha Sahna No.20 (Ex. P-57). The appellants were given notice under Section 50 of NDPS Act informing about their rights and obtained their consent vide Exs.P-4, P-10, P-1 & P-11. Thereafter, the boxes in which fish were kept with ice are opened in which 8-8 packets of contraband were found and search Panchnama (Ex.P-13) and seizure memo (Ex. P-14) was prepared. Contraband was identified before the witnesses and was found to be ganja. Contraband identification panchnama (Ex,P-15) was prepared. Notice under Section 91 CrPC for production of documents regarding transportation of contraband was issued but they did not produce any documents. The seized contraband was weighed and came out to be 11 quintal 14 kgs and weighing Panchnama (Ex.P-17) was prepared. The contraband were seized from the accused/appellants (Ex.P-20 & P-21) which was kept in 70 boxes in which 20-20 grams was separated for sample, the total weight comes into 1 kg 400 grams and two samples packets of 700 grams each (A-1 & A-2) were prepared. Sample Panchnama is Ex.P-18. The sample were sealed vide Ex.P-22. Memorandum statement of accused V.V.R. Shriniwas was recorded vide Ex.P-19 and he was arrested vide Ex.P-23. Appellant/ accused N. Shriniwas was arrested vide Ex.P-24 and information regarding arrest were sent to the relatives of the accused vide Ex. P-25 & P-26. The seized articles were kept in Maalkhana vide deposit slip Ex.P-38 and FIR was registered as Ex.P-61 and complete information was sent to City Superintendent of Police, Urla vide Ex. P-62. Spot map was prepared vide Ex. P-63. P-25 & P-26. The seized articles were kept in Maalkhana vide deposit slip Ex.P-38 and FIR was registered as Ex.P-61 and complete information was sent to City Superintendent of Police, Urla vide Ex. P-62. Spot map was prepared vide Ex. P-63. The seized sample of contraband were sent for chemical examination to Forensic Science Laboratory under (Ex. P-33) and the report (Ex. P-69) received there from confirms the contraband being ganja. As per memorandum statement of accused Ravi Nadar (Ex.P-27) amount of Rs. 12,82,570/- and two mobile phones (Ex.P-28) were seized. Thus after completion of investigation, charge-sheet was filed and the trial proceeded. 6. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 69 documents Exs.P-1 to P-69 in support of case of the prosecution, however defence examined two witnesses in support of its case. 7. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 27.04.2023, convicted the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced them as mentioned herein-above in opening paragraph of this judgment, against which, these criminal appeals have been preferred. 8. Learned counsels for the appellants would submit that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record, hence liable to be set aside. Learned trial Court has failed to appreciate that there are major contradictions and omissions in the statement of Investigating Officer Purnima Lama (PW-15), which cannot be relied upon. They contended that the learned trial Court wrongly appreciated that the investigation has been done properly and mandatory provisions of Sections 42, 52, 52-A, 55 and 57 of the NDPS Act have been complied with. They further contended that as far as compliance of Section 42 of the NDPS Act is concerned, the learned trial Court failed to appreciate that on recording of alleged information in writing regarding arrival of Ganja, it was obligatory on the part of the SHO of the concerned PS to send a copy of the same forthwith to his immediate superior officer. In the present case, no such compliance was done, therefore, due to noncompliance of Section 42(1) and (2) of the NDPS Act, conviction of the appellants is completely wrong and vitiates all the proceedings. In the present case, no such compliance was done, therefore, due to noncompliance of Section 42(1) and (2) of the NDPS Act, conviction of the appellants is completely wrong and vitiates all the proceedings. The learned trial Court also failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. They also contended that the learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provide for the procedure and manner of seizing, preparing inventory of the seized material, forwarding the seized material and getting inventor certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged in the NDPS Act. A bare perusal of the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. In the present case, it is evident from evidence of investigating officer Purnima Lama (PW-15) that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. In the present case, it is evident from evidence of investigating officer Purnima Lama (PW-15) that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in presence of the Magistrate and the lists of samples so drawn were certified by the Magistrate. Mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. In the present case, it is an admitted position on record that the samples from the alleged seized substance were drawn in presence of the alleged witnesses and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. The learned trial Court failed to appreciate that in absence of any material on record to establish that the samples of the seized contraband were drawn in presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. Hence, in absence of the same, conviction is vitiated and deserves to be set aside. It is further submitted that the learned trial Court has not considered that the seized material was not sampled and deposited in time by the investigation agency. It is a clear violation of Section 55 of the NDPS Act with regard to safe custody of the seized articles and the samples drawn for sending for chemical analysis to FSL. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. The appellants have also examined Manish Gupta (DW-1) and Sudha Ravi (DW-2) in their support. As such, the criminal appeals deserve to be allowed and the impugned judgment deserves to be set aside. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. The appellants have also examined Manish Gupta (DW-1) and Sudha Ravi (DW-2) in their support. As such, the criminal appeals deserve to be allowed and the impugned judgment deserves to be set aside. They relied upon the judgments of the Supreme Court in the matters of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379 , Union of India v. Jarooparam reported in AIR 2018 SC 1927 , Yusuf @ Asif v. State (Criminal Appeal No.3191/2023), decided on 13.10.2023), Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117, State of Rajasthan v. Bher Singh reported in (2009) 16 SCC 293 and the judgment passed by this Court in Arun Kumar Jatav v. State of Chhattisgarh (Criminal Appeal No.147 of 2022), decided on 10.11.2023. 9. On the other hand, Mr. Marhas, learned Additional Advocate General appearing for the respondent/State, would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record and evidence adduced by the prosecution has convicted the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act, in which no interference is called for. 10. We have heard the learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 11. One independent witness Mohammad Subhan (PW-10) has not supported the prosecution case. Purnima Lama (PW-15) in her cross examination she has stated that during the proceedings Magistrate or Gazetted Officer was not present nor any letter has been written regarding their presence during the proceedings. There is nothing to indicate that the sampling was done in presence of the Magistrate or the inventory of the contraband was prepared; or the photographs thereof were taken. This exercise, as is rightly pleaded by the counsel for the appellants, is contravention of the mandatory requirement as enshrined in Section 52A of the NDPS Act which deals with the disposal of the seized narcotic drugs and psychotropic substances. Hon’ble Supreme Court while dealing with this question has in plethora of cases has held that the breach of the provision of Section 52-A can lead to the trial itself being vitiated and eventually result in acquittal. Hon’ble Supreme Court while dealing with this question has in plethora of cases has held that the breach of the provision of Section 52-A can lead to the trial itself being vitiated and eventually result in acquittal. Some of the judicial pronouncements of the Supreme Court on this point are considered worth adumbration in this case. 12. In Union of India Vs. Mohanlal (Supra) it is held as under: 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-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.” 13. In the matter of Union of India Vs. Jarooparam (Supra) it has been held as under:- 11. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor any such order was passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial Court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence. 14. The above decision of the Supreme Court in Union of India Vs. Mohanlal (supra) has lately been followed in Simarnjit Singh (supra) where it has been held as under: “15. 14. The above decision of the Supreme Court in Union of India Vs. Mohanlal (supra) has lately been followed in Simarnjit Singh (supra) where it has been held 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. 15. In Mangilal Vs. State of Madhya Pradesh (supra) it has been held as under:- 6. 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. 15. In Mangilal Vs. State of Madhya Pradesh (supra) it has been held as under:- 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: "4. Manner of disposal 1) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, of the Act, or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs or psychotropic substances as per Annexure 1 to this notification and apply to any Magistrate under subsection (2) of section 52A as per Annexure 2 to this notification. 2) After the Magistrate allows the application under sub-section (3) of section 52A, the officer mentioned in clause (1) above 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 the drug consignments to the Chairman of the Drug Disposal Committee for a decision by the committee on the disposal. The officer shall send a copy of the details along with the drug consignments to the officer-in-charge of the godown. 4.2 Mode of disposal of drugs. (i) Opium, morphine, codeine and the baine shall be disposed of by transferring to the Government Opium and Alkaloid Works under the Chief Controller of Factories. (ii) In case of drugs other than the drugs mentioned in clause (i), the Chief Controller of Factories shall be intimated by the fastest means of communication available, details of drug consignments that are ready for disposal. (ii) In case of drugs other than the drugs mentioned in clause (i), the Chief Controller of Factories shall be intimated by the fastest means of communication available, details of drug consignments that are ready for disposal. (iii) The Chief Controller of Factories shall indicate within 15 days of the date of receipt of the communication, the quantities of drugs, if any, that are required by him to supply as samples under Rule 67B. (iv) Such quantities of drugs, if any, as required by the Chief Controller of Factories under clause (iii) shall be transferred to him and the remaining quantities of drugs shall be destroyed as per the procedure outlined in para 4.1.2. (v) Destruction shall be by incineration in incinerators fitted with appropriate air pollution control devices, which comply with emission standards. Such incineration may only be done in places where adequate facilities and security arrangements exist. In order to ensure that such incineration may not be a health hazard or polluting, consent of the State Pollution Control Board or Pollution Control Committee, as the case may be, should be obtained. Destruction shall be carried out at the presence of the Members of the Drug Disposal Committee. 4.4 Certificate of destruction. A certificate of destruction (in triplicate) containing all the relevant data like godown entry number, gross and net weight of the drugs seized, etc., shall be prepared and signed by the chairman and members of the Drug Disposal Committee as per format at Annexure 3. The original copy shall be pasted in the godown register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Drug Disposal Committee. Details of disposal of drugs shall be reported to the Narcotics Control Bureau in the Monthly Master Reports." 16. Having thus heard counsel for the parties at length and gone through the material available on record including the judgment impugned and also taken note of the judicial pronouncements referred to above, this Court has no hesitation to say that the prosecution has not led the evidence which could conclusively lead to the conviction of the accused / appellants under the provisions of NDPS Act. The mandatory legal requirement as is contemplated under Section 52-A of the NDPS Act which requires sampling of the contraband being done, inventory being prepared, photographs being taken etc. The mandatory legal requirement as is contemplated under Section 52-A of the NDPS Act which requires sampling of the contraband being done, inventory being prepared, photographs being taken etc. in the presence of the Magistrate have not been taken care of by the prosecution in the course of investigation. As has already been discussed herein above that the non-compliance of the legal requirement under Section 52-A of the NDPS Act can ipso facto result in trial being vitiated resulting in acquittal of the accused/appellants. Thus, the Court below has also fallen in a serious legal error in ignoring the manifest legal error which is mandatory in character, crept in this case on the part of the prosecution. In this view of the matter, the judgment impugned has no legs to stand and therefore, it is hereby set aside. 17. Appeals are thus allowed, judgment impugned is set aside and the accused / appellants are hereby acquitted of the charge leveled against them. They shall be set at liberty forthwith if not required in any other case. 18. The appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 19. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. 20. Before parting, we would like to observe that this Court has come across many cases in which proper compliance of mandatory provisions of NDPS Act is not done by the investigating officer. The directions have already been issued to DGP and other investigating officers to issue advisories in this regard vide judgment dated 02.01.2024 passed in CRA No. 718 of 2022 and CRA No. 1310 of 2023. It appears that in spite of such direction issued it fall on deaf ears. We again expect that the State would make all endeavour to sensitize the investigating agency with regard to compliance of mandatory provisions of NDPS Act during the course of investigation for the offences under the NDPS Act. 21. The Registrar (Judicial) of this Court is directed to send a copy of this judgment to the Director General of Police, Raipur, Chhattisgarh forthwith for necessary information and further compliance.