JUDGMENT : Subhash Chand, J. 1. This Criminal Appeal has been preferred against the judgment of conviction dated 25.04.2018 and the order of sentence dated 26.04.2018 passed by the learned Special Judge (NDPS), Khunti in N.D.P.S. Case No.10 of 2014(K)/ N.D.P.S. Case No. 09 of 2011(R), whereby the learned trial Court has convicted the appellant under Sections 18(b) of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for ten years along with fine of Rs.1,00,000/-under Section 18(b) of the N.D.P.S. Act. In case of default of payment of fine, the convict was directed to undergo imprisonment of one year. 2. The brief facts of the prosecution case leading to this Criminal Appeal are that the informant Pramod Kumar Mishra, Police Inspector of Khunti Circle had given the written statement to the effect that on 27.06.2011 at 13:30 pm, he received the information from the Superintendent of Police, Khunti that certain persons of Bazar Tanr are involved in smuggling of narcotic substance and the transaction of opium was likely to take place in Bazar Tanrof Khunti. On this written information, the informant along with police force reached to the indicated place and a person was apprehended containing six kilograms opium in five packet and the same was produced before the Gazetted Officer. The seizure memo of the recovered opium was prepared and all the five packets were marked as X-1, X-2, X-3, X-4 and X-5 in presence of independent witness and the apprehended person was identified as Jai Ram Munda who told that this opium was handed over to him by Jeet Munda, Kishun Munda, Mangra Munda, Magan Munda and Ranjeet and the same was to be delivered to Md. Sirazudin of U.P. in Khunti Bazar Tand. It was also told by Jai Ram Munda that these persons used to cultivate opium and prepared opium from poppy. On the basis of fardbeyan, the formal FIR was registered as Khunti P.S. Case No.102 of 2011 under Sections 17, 18 and 20 of the N.D.P.S. Act against five accused persons, namely, Jai Ram Munda, Jeet Munda, Kishun Munda, Mangra Munda and Ranjeet. 3. The Investigating Officer after having concluded the investigation, filed charge-sheet against the accused Jai Ram Munda under Sections 17, 18 and 20 of the N.D.P.S. Act and the investigation against rest of the accused persons remained pending. 4. 3. The Investigating Officer after having concluded the investigation, filed charge-sheet against the accused Jai Ram Munda under Sections 17, 18 and 20 of the N.D.P.S. Act and the investigation against rest of the accused persons remained pending. 4. The Court of learned Special Judge-cum-Judicial Commissioner took cognizance on the charge-sheet and framed the charge against the accused Jai Ram Munda under Section 18(b) of the N.D.P.S. Act. The charge was read over and explained to him, he denied the charge and claimed to face the trial. 5. On behalf of the prosecution to prove the charge against the accused in oral evidence examined altogether ten witnesses i.e. P.W.-1, Vishal Kumar Pandey; P.W.-2, Ravi Kumar Pandey; P.W.-3, Chandra Bhan Ram; P.W.-4, Sujit Kumar; P.W.-5, Ritesh Kumar Sharma; P.W.-6, Anil Shankar; P.W.-7, Birendra Prasad Singh; P.W.-8, Pramod Kumar Mishra; P.W.-9, Md. Mahtab Alam and; P.W.-10, Kiran Kumari and in documentary evidence the prosecution has adduced Exhibit-1, Signature of Vishal Kumar Pandey on seizure list; Exhibit-1/1, signature of Ravi Kumar Pandey on seizure list; Exhibit-1/2, Signature of Anil Shankar on seizure list; Exhibit-2, endorsement on fardbeyan; Exhibit-2/1, self-recorded statement of informant Pramod Kumar Mishra; Exhibit-3, formal FIR; Exhibit-4, report of State Forensic Science Laboratory Ranchi and Exhibit-5, Memo of arrest of accused Jai Ram Munda. 6. The statement of the accused was recorded under Section 313 of Code of Criminal Procedure, in which, he denied the incriminating circumstances in evidence against him and stated himself to be innocent. 7. On behalf of the accused Jai Ram Munda, no defence evidence was adduced. 8. The learned trial Court after hearing the rival submissions of the learned counsel for the accused and learned counsel for the State, passed the impugned judgment of conviction dated 25.04.2018 and the order of sentence dated 26.04.2018 holding the accused guilty for the offence under Section 18(b) of the N.D.P.S. Act and sentenced as stated hereinabove. 9. Aggrieved from the impugned judgment of conviction dated 25.04.2018 and the order of sentence dated 26.04.2018, this Criminal Appeal has been preferred on behalf of the appellant on the ground that the impugned judgment of conviction and the order of sentence is based on the wrong appreciation of evidence. The learned Trial Court has not appreciated the evidence on record in proper perspective. The learned Trial Court has not appreciated the evidence on record in proper perspective. In view of the above, prayed to allow this Criminal Appeal and set aside the impugned judgment of conviction and the order of sentence. 10. We have heard the rival submissions of the learned counsel for the appellant and learned Spl.PP for the State and perused the materials available on record. 11. In order to decide the legality and propriety of the impugned judgment of conviction and the order of sentence passed by the learned Trial Court, we scrutinize the evidence oral as well as documentary adduced on behalf of the parties on record, which are reproduced hereinbelow: 11.1 P.W.-1, Vishal Kumar Pandey, who is the witness of seizure memo. He identifies his signature on the seizure memo and marks Exhibit-1. In cross-examination, this witness says that he put his signature on the seizure memo but no contraband was seized in his presence and his signature was taken on plain paper. 11.2 P.W.-2, Ravi Kumar Pandey, in his examination-in-chief, identifies his signature on the seizure memo, which is marked Exhibit-1/1. In cross-examination, this witness says that no seizure-memo was prepared in his presence. The search of Jai Ram Munda was not made in his presence. His signature was taken on the seizure memo by the police, what was mentioned therein, he is not aware. 11.3 P.W.-3, Chandra Bhan Ram, in his examination-in-chief, says the occurrence is of 26.06.2011. It was 01:30 O’clock of day time. Place of occurrence was of Bazar Tanrof Khunti. Pramod Kumar Mishra, the Inspector of Police had informed him to accompany in the raiding party. He along with armed force, reached at indicated place with Pramod Kumar Mishra. One person was apprehended with the help of two independent witnesses i.e. Vishal Kumar Pandey and Ravi Kumar Pandey. Mr. Anil Shankar, the Sub-Divisional Police Officer were also informed and reached there, in his presence, the search of apprehended person was made and five packets in a bag were recovered from his possession containing therein six kilograms opium. The seizure memo was prepared in presence of the independent witnesses and the apprehended person was identified as Jit Munda, Kishun Munda, Mangra Munda, Gudu Munda and Ranjit, who had to deliver the opium to Md. Sirazuddin in Bazar Tand. The seizure memo was prepared in presence of the independent witnesses and the apprehended person was identified as Jit Munda, Kishun Munda, Mangra Munda, Gudu Munda and Ranjit, who had to deliver the opium to Md. Sirazuddin in Bazar Tand. This witness identifies the signature of Pramod Kumar Mishra, the then Police Inspector on the self-recorded statement and the endorsement made by him. The investigation was handed over to Birendra Kumar Singh, which is marked Exhibit-2. The formal FIR was prepared by the Constable, Shyam Sundar Singh and the same is marked Exhibit-3. In cross-examination, this witness says that he cannot say the exact rate of the five packets, which were recovered. The weight was done at the shop, whose name he does not remember rather the recovered poppy was sealed, he cannot say what was recovered from the said bag marked X1, X2, X3, X4 and X5 and how much quantity for sampling was taken from each bag he is also not aware. He is in-charge of Malkhana. On 27.06.2011, the contraband was placed in Malkhana. It was withdrawn only once from Malkhana but date of withdrawal of the same, he does not know and when it was sent to FSL for examination after permission of the Special Judge (NDPS) Act, he is also not aware. The recovered contraband was handed over to him by the Police Inspector, Pramod Kumar Mishra. He did not give any receipt in lieu thereof to the Police Inspector. 11.4 P.W.-4, Sujit Kumar, in his examination-in-chief, says that on 27.06.2011, he was working as Bodyguard of Circle Inspector. On that day, along with Pramod Kumar Mishra, Inspector of Police; Ritesh Kumar Sharma, Constable and; Md. Mahtab Alam, he reached at Bazar Tanrand one person was apprehended, from whose possession after search, six kilograms opium was recovered in presence of two independent witnesses. The apprehended person was identified as Jai Ram Munda. In cross-examination, this witness says that the recovered bag was opened by them, which was transparent. On reaching the police station, he saw the packet containing opium. 11.5 P.W.-5, Ritesh Kumar Sharma, who is the Bodyguard of Pramod Kumar Mishra, Police Inspector, in his examination-in-chief, corroborates the prosecution story. In cross-examination, this witness says that the opium, which was in polythene the same was not opened. On reaching the police station, he saw the packet containing opium. 11.5 P.W.-5, Ritesh Kumar Sharma, who is the Bodyguard of Pramod Kumar Mishra, Police Inspector, in his examination-in-chief, corroborates the prosecution story. In cross-examination, this witness says that the opium, which was in polythene the same was not opened. There were five to six polythene packets, by whom the seizure memo was prepared, he is not aware. 11.6 P.W.-6, Anil Shankar, in his examination-in-chief, says that on 27.06.2011, he was posted as Sub-Divisional Police Officer, Khunti. On telephone, he received information that in Bazar Tand, the accused was apprehended with opium and the search of apprehended person was made in his presence, from whose possession, in five packets six kilograms of opium was recovered. The seizure memo was prepared by Pramod Kumar Mishra, the Police Inspector, on which, he put his signature as Gazetted Officer. He identifies his signature marked Exhibit-1/2. In cross-examination, this witness says that when he reached to the place of occurrence, he found the apprehended person in custody of the police personnel. 11.7 P.W.-7, Birendra Prasad Singh, in his examination-in-chief, says that he was posted as Circle Inspector, Torpa. He identifies the signature of Pramod Kumar Mishra on the self-statement. He also identifies the endorsement to register the case as of Chandra Bhan Ram marked Exhibit-2/1. The seizure-memo is in handwriting of Pramod Kumar Mishra marked Exhibit-1/3. The investigation of this case crime was handed over to him by Chandra Bhan Ram, the Station In-charge Officer. He recorded the restatement of Pramod Kumar Mishra. He inspected the place of occurrence. The place of occurrence is one and half kilometer away from South Khunti, Chaibasa Road in Bazar Tand. He recorded the statement of Anil Shankar, Constable; Sujit Kumar, Constable; Ritesh Kumar Sharma and; Md. Mahtab Alam. He also recorded the statement of seizure-memo witnesses i.e. Vishal Kumar Pandey and Ravi Kumar Pandey. The FSL report was received by him from the Director of Forensic Science Laboratory, in which, X1, X2, X3, X4 and X5 were found to be opium and the same is marked as Exhibit-4 and, thereafter, he filed the charge-sheet. In cross-examination, this witness says that from all the five packets, some of quantity was taken and sent to FSL for examination. The recovered contraband was in powder. He is not aware that the same was in which colour. In cross-examination, this witness says that from all the five packets, some of quantity was taken and sent to FSL for examination. The recovered contraband was in powder. He is not aware that the same was in which colour. 11.8 P.W.-8, Pramod Kumar Mishra, in his examination-in-chief, says that on 27.06.2011, he was posted as Police Inspector, Khunti Circle. At 13:30 O’clock, he received the information from Superintendent of Police, Khunti and a team was constituted to conduct the raid comprising therein Chandra Bhan Ram, Sujeet Kumar, Ritesh Kumar Sharma and they reached at indicated place at Bazar Tanrof Khunti. One person was apprehended. The search was made in presence of Amit Sharma, Circle Officer, Khunti in presence of two independent witnesses i.e. Vishal Kumar Pandey and Ravi Kumar Pandey. From the possession of the accused, opium was recovered in polythene packet and all the recovered articles were handed over to Chandra Bhan Ram, Station In-charge. 11.9 P.W.-9, Md. Mahtab Alam, who is the member of raiding team, in his examination-in-chief, corroborates the prosecution story. In cross-examination, this witness says that the opium was in polythene packet, which was in bag. He does not remember the colour of bag. 11.10 P.W.-10, Dr. Kiran Kumari, in her examination-in-chief, says that the Director of State Forensic Science Laboratory vide letter No.650/Go. dated 15.02.2017 had directed her to give evidence in Khunti P.S. Case No.102 of 2011 for examination of contraband. She had helped Dr. A.K. Bapuli. She identifies the signature of Dr. A.K. Bapuli, the Director on the said letter marked Exhibit-6. The FSL report is signed by Dr. A.K. Bapuli, which was also assisted by her. On the basis of chemical and instrumental (GC-MS) examination, Morphine, Codeine and Thebaine were detected in the contents of all the five polythene packets, marked X-1, X-2, X-3, X-4 and X-5 described above. It is, therefore, concluded that all the five polythene packets, marked X-1, X-2, X-3, X-4 and X-5 described above contain opium. Opium is highly addictive narcotic substance. This report is of Dr. A.K. Bapuly that is already exhibited as Exhibit-4. In cross-examination, this witness says that the box containing therein opium was handed over to her in sealed condition by the order of the Dr. A.K. Bapuly. 12. Learned counsel for the appellant has submitted that the seizure memo of the contraband opium is not proved by the evidence of independent witnesses. A.K. Bapuly that is already exhibited as Exhibit-4. In cross-examination, this witness says that the box containing therein opium was handed over to her in sealed condition by the order of the Dr. A.K. Bapuly. 12. Learned counsel for the appellant has submitted that the seizure memo of the contraband opium is not proved by the evidence of independent witnesses. Further, the opium which is alleged to have been recovered from the possession of the appellant the same was never produced before the learned Trial Court during examination. 13. Per contra, the learned Spl.PP appearing on behalf of the State opposed the contentions made by the learned counsel for the appellant and contended that though the opium was not produced before the learned trial Court by the prosecution; yet the same is not fatal the case, the seizure memo is well proved by the prosecution witnesses and as per the FSL report the sampling was also found to be opium. As such, the impugned judgment of conviction and the order of sentence does not bear any infirmity and needs no interference. 14. P.W.8, Pramod Kumar Mishra is the informant of the prosecution case. This witness has stated that on 27.06.2011 at 13:30 O’clock, he had received the information from Superintendent of Police, Khunti in regard to smuggling of opium and, consequently, a team was constituted to conduct the raid and raid was carried out at the Bazar Tanr of Kunti. A person was apprehended and Mr. Anil Shankar, the Sub Divisional Police Officer was apprised over on phone and he came there, in his presence, and in presence of the independent witnesses i.e. Vishal Kumar Pandey and Ravi Kumar Pandey, the search of apprehended person was made. A bag was recovered from him containing therein five packets and in all the packets there was contraband, which was recovered and the same was identified as opium. The sampling was also made from each packet the small quantity, the same was sent for examination to FSL which were marked X-1, X-2, X-3, X-4 and X-5. 14.1 This witness has proved the seizure memo, which he has stated was prepared by him in his handwriting and signed by him. He also says that it was also signed by Anil Shankar and two independent witnesses i.e. Vishal Kumar Pandey and Ravi Kumar Pandey. 14.1 This witness has proved the seizure memo, which he has stated was prepared by him in his handwriting and signed by him. He also says that it was also signed by Anil Shankar and two independent witnesses i.e. Vishal Kumar Pandey and Ravi Kumar Pandey. He has also stated that the recovered contraband was handed over by him to the Chandra Bhan Ram, the Station In-charge of Police Station concerned. 14.2 So far as the seizure memo of the recovered opium is concerned, though the same is proved by P.W.-8 Pramod Kumar Mishra (the informant) and P.W.-6, Anil Shankar, the Circle Officer, in whose presence, the search was made and in five packets, 6 kg opium was recovered. P.W.-6, Anil Shankar has also put his signature as a Gazetted Officer in the recovery memo. 14.3 But this seizure memo is not proved by the independent witnesses. P.W.-1. Vishal Kumar Pandey and P.W.-2, Ravi Kumar Pandey, these two witnesses of public and are independent person. They have categorically stated that their signatures were taken in the Police Station on the plain paper. Nothing was recovered in their presence from the possession of the accused Jai Ram Munda. Therefore, the seizure memo Exhibit-1 itself becomes doubtful. 15. The recovered contraband is the opium which is alleged to be 6 kg. From the evidence of all the prosecution witnesses, it nowhere came that the recovered opium was weighed by whom. There is no evidence that what was the weight of each packet out of five packets. There is no evidence how much quantity was taken from each packet for sampling. There being no evidence in regard to weight of the recovered contraband opium, which also strikes at the very root of the prosecution case in regard to quantity of the recovered opium whether it was commercial or not is found fatal to prosecution case. 16. The opium, which is alleged to be recovered from the possession of the appellant-convict was handed over by P.W.-8, Pramod Kumar Mishra (the informant) to P.W.-3, Chandra Bhan Ram i.e. the Station Officer In-charge of Police Station concerned. There is no evidence whether the recovered contraband i.e. opium was in sealed condition or not and the same was placed in Malkhana of the Police Station concerned. There is no evidence whether the recovered contraband i.e. opium was in sealed condition or not and the same was placed in Malkhana of the Police Station concerned. 16.1 On behalf of the prosecution P.W.-3, Chandra Bhan Ram, the Station In-Charge Officer of the Police Station concerned has been examined, he is also a member of raiding party. In cross-examination this witness says that five packets, which were recovered, how much quantity was in one packet, he cannot say. In which shop the opium was weighed, he does not know the name of shopkeeper and by whom the recovered opium was sealed, he cannot say. Out of all packets in each packet, how much quantity of the opium was taken out, he cannot say. He also says that he is the in-charge of the Malkhana. This seized opium was placed in Malkhana on 27.06.2011. It was withdrawn from Malkhand only once on which date, he cannot say on what date the sampling of opium was taken from the Malkhana, he does not remember. From the testimony of this witness, it is found that the recovered opium was never weighed and it was also not sealed. 16.2 Moreover, the Malkhana register was also not produced to prove when the recovered opium was withdrawn from the Malkhana to produce for sampling before the Magistrate. 16.3 The Hon’ble Supreme Court in the case of Simranjit Singh Vs. The State of Telangana reported in (2023) LiveLaw (SC) 570 held that the conviction under N.D.P.S. Act is liable to be set aside if the samples were not withdrawn in presence of the Magistrate as per Section 52A. The entire exercise of collection of the sample must be certified by the Magistrate to be correct. Paragraph No. 8 reads as under: “8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus: ………………….. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. Paragraph No. 8 reads as under: “8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus: ………………….. 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 subsections (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.” 16.4 In this case, there being no evidence in regard to the sampling being done in presence of the Magistrate. In view of the Section 52A, even if FSL report confirms the result of the contraband to be positive, the same cannot be read in evidence. 16.5 The Hon’ble Apex Court in the case of Md. Khalid & Anr. Vs. the State of Telangana passed in Criminal Appeal No(S). 1610 of 2023 dated 01.03.2024 held that when the samples are not drawn following search under Section 52A of the N.D.P.S. Act, FSL report is waste paper and cannot be read in evidence. Paragraph No.22 reads as under: “22. Khalid & Anr. Vs. the State of Telangana passed in Criminal Appeal No(S). 1610 of 2023 dated 01.03.2024 held that when the samples are not drawn following search under Section 52A of the N.D.P.S. Act, FSL report is waste paper and cannot be read in evidence. Paragraph No.22 reads as under: “22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence………………………………….." 16.6 The Hon’ble Supreme Court in the case of State of Gujarat v. Ismail U Haji Patel, reported in (2003) 12 SCC 291 held at paragraph Nos.5 and 6, which read as under: 5. We find that there was really no material brought on record to show as to where the seized articles were kept. The High Court after analysing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the articles seized were in fact sent for chemical examination. In view of the judgment of this Court in Valsala v. State of Kerala 1993 Supp (3) SCC 665 the view of the High Court is in order. It is not the delay in sending the samples which is material. What has to be established is that the seized articles were in proper custody, in proper form and the samples sent to the Chemical Analyst related to the seized articles. 6. Further, there was nothing brought on record to show as to under whose directions the samples were sent for chemical examination. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. The High Court relied on Section 55 of the Act to hold that the absence of such information also vitiates the proceedings. Section 55 of the Act provides that the officer in charge of the police station has to take charge of and keep in safe custody the seized articles pending orders of the Magistrate. Since there is no material to show that there was any order of the Magistrate as to where the seized articles were to be kept, and there was no material to show that there was safe custody as is required under Section 55 of the Act, the view of the High Court is in order. Judgment of the High Court does not warrant any interference in our hands and the appeal is dismissed. 17. Although, as per the testimony of P.W.-10, Dr. Kiran Kumari and as per the F.S.L. report, the sampling of the opium which was sent to F.S.L. for examination marked X-1, X-2, X-3, X-4 and X-5 were found to be opium, yet the opium which is alleged to have been recovered from the possession of the appellant-convict Jairam Munda, the same was never produced before the Trial Court during examination neither by the Investigating Officer nor by any other prosecution witness, who were the members of raiding team. Admittedly, the recovered opium was never produced before the learned Trial Court on behalf of the prosecution. 18. The learned A.P.P. has contended that the same was weeded out of in view of the Section 52-A of the NDPS Act. This contention of the learned A.P.P. for the State is not found tenable because no one prosecution witness has stated that the opium which was recovered from the possession of the appellant-convict was ever disposed of or weeded out in view of Section 52A of the NDPS Act. Firstly, the prosecution has to prove the disposal i.e. weed out of the contraband opium under Section 52-A of the NDPS Act and after weed out of the same, the prosecution has to adduce evidence in regard to the inventory, photograph, quantity, mode of packing etc. in compliance of Section 52-A, (2) and (3) of the N.D.P.S. Act. Therefore, this contention made by learned Spl.PP on behalf of the State is not found tenable. 19. Lastly, non-production of the opium before the learned Trial Court becomes fatal to the prosecution case. in compliance of Section 52-A, (2) and (3) of the N.D.P.S. Act. Therefore, this contention made by learned Spl.PP on behalf of the State is not found tenable. 19. Lastly, non-production of the opium before the learned Trial Court becomes fatal to the prosecution case. 19.1 The Hon’ble Supreme Court in the case of Jitendra Vs. State of M.P. reported in (2004) 10 SCC 562 held at paragraph No.6, which reads as under: “6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. 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. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.” 19.2 The Hon’ble Supreme Court in the case of Vijay Jain v. State of M.P., reported in (2013) 14 SCC 527 held at paragraph Nos.10 and 12, which read as under: 10. On the other hand, on a reading of this Court’s judgment in Jitendra case (2004) 10 SCC 562 , we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok vs State of MP (2004) 10 SCC 562 this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant. 12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable. 20. In view of the critical appraisal of the evidence on record, we are of the considered view that there being no evidence in regard to sealing the recovered opium from the possession of the appellant-convict and further there being no compliance of Section 52(a) of the N.D.P.S. Act in regard to sampling of the opium, which was recovered in five packets from the possession of the appellant-convict and lastly not least the non-production of the contraband before the learned Trial Court during examination. The prosecution case is not found proved beyond reasonable doubt. Therefore, the judgment of conviction and the order of sentence passed by the learned Trial Court needs interference and this Criminal Appeal deserves to be allowed. 21. Accordingly, this Criminal Appeal is allowed and the impugned judgment of conviction dated 25.04.2018 and the order of sentence dated 26.04.2018 by the learned Special Judge (NDPS), Khunti in N.D.P.S. Case No.10 of 2014(K)/ N.D.P.S. Case No. 09 of 2011(R) are set-aside. 22. The appellant is acquitted from the charges levelled against him and he is directed to be released forthwith, if not wanted in any other case. 23. Let a copy of this judgment be communicated to the learned Trial Court.