JUDGMENT : G.BASAVARAJA, J. The appellant has preferred this appeal against the judgment of acquittal passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS), Bangalore CCH-33 in Spl.C.C.No.68/2006 dated 22.02.2010. The Complainant Intelligence Officer NCB, Chennai has submitted the charge sheet against accused Nos.1 to 4 and absconding accused No.5 for the Commission of Offence under Section 8(c) r/w Sections 21, 25, 28 and 29 under Section 21C of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short, 'NDPS Act'). 2. It is alleged by the prosecution that accused No.1 is the resident of Silegarh, Jalwar District, Rajasthan State. Accused No.2 is the resident of Manasa Village, Neemach District, Madhya Pradesh. Accused No.2 is just by the side of the place of accused No.1. Accused No.3, though originally is resident of Vijayawada, has shifted and is residing at Chennai at room No.36, Nateshan Street New No.18. Accused No.4-Gopal is from the place of accused No.2 and is absconding. Accused No.5-Sulthan Singh is from the place of accused No.1 and the house of accused No.5 is about the distance of 300-400 feet away from the house of accused No.1. Accused No.1 has studied upto 8 th Standard and for the last 4 years he has learnt to make heroin. The heroin was prepared by accused No.1 along with his friends and neighbours Shankarlal Paridar, Gab Singh, Balu and Anil Jain. Accused No.1 and his companions had earlier prepared 20 kgs of heroin and sold it for Rs.1,50,000/- to Rs.2,00,000/- per kg and distributed among themselves. 3. Accused No.1 has also known the absconding accused No.5 for the past 7 years, and accused No.5 knows how to prepare heroin. Accused Nos.1 and 5 both are running shop under the name of Paridar Borewell at Silegarh bus stand and distributed the business profits among themselves. Three months prior to the date of incident, accused No.5, stating that he would supply 6 kg of heroin to Sony, who is a Rajasthani, residing in Chennai, had taken Rs.6,00,000/- from him, but had not supplied the same to Sony. 4. It is alleged by the prosecution that respondent No.1 is the resident of Silegarh, Jalwar District, Rajasthan State, respondent No.2 is the resident of Manasa Village, Neemach District, Madhya Pradesh. The village of Respondent No.2 is just adjacent to the place of respondent No.1. 4. It is alleged by the prosecution that respondent No.1 is the resident of Silegarh, Jalwar District, Rajasthan State, respondent No.2 is the resident of Manasa Village, Neemach District, Madhya Pradesh. The village of Respondent No.2 is just adjacent to the place of respondent No.1. Respondent No.3 originally he is the resident of Vijayawada and has shifted to Chennai. The Respondent No. 4 and Respondent No. 2 are from the same place, and Respondent No. 5, the absconding accused, is from the same place as that of Respondent No.1. 5. On 29-09-2005, at about 10:30 a.m., when the PW 1-Thirumalai Sridhar, Intelligence Officer, NCB, Chennai was in his Office, he received an information stating that the Respondent No.1 is indulging in narcotic drug trafficking between Madhya Pradesh and Tamil Nadu via Bangalore, and that he has arranged/procured 11kgs of heroin through Respondent No. 2, who owns a truck/lorry bearing registration No.MP 44/J 0341. They were delivering the same to a party in Bangalore, and they had planned to deliver the cargo today, i.e., on 29-09-2005 evening and thereafter to hand over the heroin to the Respondent No. 1, near Mahaveer Roadlines, Madanayakanahalli on Bangalore-Tumkur NH Road between 7- 30 p.m. and 8.30 p.m. The Respondent No. 1 had reached Bangalore and was staying in a hotel, he came to the said place and after receiving the heroin, he would deliver it to his contacts from Tamil Nadu for onward smuggling out to Sri Lanka. 6. PW 1 passed on this information to PW 5-the Superintendent who was on a tour and PW.5 has recorded this information u/s 41(2) of N.D.P.S. Act as per Ex.P. 41 on 29-09- 2005 at 11-15 a.m. in Bangalore because at that time he was in Bangalore along with PW 2, CW 3, PW 3. PW 5 conveyed the information to the said officers and discussed the plan of action. On 29-09-2005, the above said Officers went near Mahaveer Roadlines, Madanayakanahalli, at about 7:00 p.m., and they were watching on mounted surveillance at Tumkur- Bangalore NH Road for the arrival of the said lorry. Respondent No. 2 was driving the said lorry and Respondent No. 4 was sitting in the cleaner seat. On 29-09-2005, at about 8-00 p.m., the lorry came from Tumkur side and parked in front of Mahaveer Roadlines, Madanayakanahalli on NH Road towards Bangalore. Respondent Nos. Respondent No. 2 was driving the said lorry and Respondent No. 4 was sitting in the cleaner seat. On 29-09-2005, at about 8-00 p.m., the lorry came from Tumkur side and parked in front of Mahaveer Roadlines, Madanayakanahalli on NH Road towards Bangalore. Respondent Nos. 1 and 3 went to the place and Respondent No. 1 had collected the Rexine Bag (MO.13) and gave it to Respondent No. 3 who was standing on the road near the lorry and Respondent No. 3 kept that bag on his shoulder. The Officers who were watching the said movements, confirmed the description and the activities tallied with the information received. Later, the officers surrounded the lorry, introduced themselves and after explaining the provisions of the NDPS Act, and on enquiry, the Respondents have admitted the fact that they have entered into conspiracy between themselves and 5th Respondent procured 11.355 kgs of heroin by manufacturing the same at their place. The possessed heroin was being smuggled to Sri Lanka via Chennai through their known contacts for illegal financial benefit and thereby, they have committed the offences punishable u/s 8 (C) read with sections 21, 25, 28, and 29 punishable under sections 21 (C), 25, 27-A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act. 7. Charges were framed against the accused for the commission of alleged Offences. Having understood the same, accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, prosecution has examined five witnesses as PW.1 to PW.5 and 53 documents were marked as Exs.P1 to P53. 42 material objects were marked as MOs.1 to MO.42. After closing the prosecution evidence, statements of accused Nos.1 to 4 were recorded under Section 313 of Cr.P.C. Accused have denied the evidence adduced against them, but they have not chosen to lead any defence evidence on their behalf. 8. Having heard the arguments of the learned counsel for the respondent/accused, the trial Court has acquitted the accused. 9. Being aggrieved by the judgment of acquittal, the State has preferred this appeal. The learned Counsel for the appellant would submit the arguments by reiterating the averments made in the memorandum of appeal. 10. I have examined the materials placed before this Court. 9. Being aggrieved by the judgment of acquittal, the State has preferred this appeal. The learned Counsel for the appellant would submit the arguments by reiterating the averments made in the memorandum of appeal. 10. I have examined the materials placed before this Court. The trial Court has elaborately discussed the evidence of prosecution witnesses and came to the conclusion that, the Investigating Officer has failed to comply with the mandatory provisions of Section 50 and Section 42 of NDPS Act 11. In paragraphs Nos.64 and 65 of the Judgment, the trial Court has observed as under: "64. The assessment of evidence of C.W 7 N.Manoharan, Assistant Chemical Examiner and his report not marked. According to the prosecution case, PW2 through forwarding memo dated 3/10/2005 per EP28 has submitted M.Os.31 Laboratory, Customs House, Chennai along with Test memo Ex.P.29 for chemical analysis and they were received by C.W.7 N.Manoharan on 3/10/2005 itself. There is test report given by N.Manoharan, Assistant Chemical Examiner, Customs House Laboratory, Chennai and in his report he has stated that the samples found in M.Os.31 to 42 answered tests for the presence of Diacetyl Morphine (heroin) covered under the N.D.P.S. Act and also has noted the percentage of Diacetyl Morphine (heroin) in each samples could not be determined as the Gas Chromatography instrument is presently not in working condition. Therefore it reveals that firstly test report given by C.W.7-N.Manoharan has not been marked on the side of the prosecution and further more CE has not given the presence of percentage of Diacetyl Morphine (heroin) in the samples. Therefore now it is not known what percentage of presence of heroin is in the contraband of 11.355 kgs said to have been seized from the possession of accused Nos.1 to 4. By perusing the order sheet dated 12/10/2009 it reveals that evidence of C.W.7 was dropped. The application filed by Spl.P.P. for recalling and examining the witness C.Ws.3, 4, 6 and 7 was dismissed by me by the orders dated 7/12/2009. Against the orders of this Court dated 7/12/2009 Spl.P.P. went in Crl. Petition No.6659/2009 before the Hon'ble High Court therein Hon'ble High Court by the orders dated 19/1/2010 has ordered that the application filed by the NCB ordered under Section 313 Cr. PC is allowed permitting the examination of C.Ws.3, 4, 6 and 7 and the evidence shall be completed in between 21/1/2010 and 31/1/2010. Petition No.6659/2009 before the Hon'ble High Court therein Hon'ble High Court by the orders dated 19/1/2010 has ordered that the application filed by the NCB ordered under Section 313 Cr. PC is allowed permitting the examination of C.Ws.3, 4, 6 and 7 and the evidence shall be completed in between 21/1/2010 and 31/1/2010. By perusing the order sheet dated 30/1/2010 C.Ws.3 and 7 were present and when the evidence of P.W.5 was closed it was 4-50 p.m. and I noted Spl. P.P. can avail till 5-30 p.m., Spl.P.P. submitted that there is no sufficient time left now to examine-in-chief either C.W.3 or C.W.7 therefore he is unable to examine either C.W.3 or C.W.7 who were present before court. 31/1/2010 was Sunday. In these circumstances prosecution could not examine both C.W.3 R. Murugan and C.W.7 N.Manoharan. The prosecution failed to prove the seizure of contraband from the alleged possession of accused is heroin. When the Chemical examiner C.W.7 is not examined and his report dated 10/3/2006 is not marked, then there is no evidence at all before the court that the contraband seized is heroin or Diacetyl Morphine. Even for an argument sake I will go to this extent if C.W.7 would have been examined and got marked the test report dated 10/3/2006, even then prosecution was not able to prove before the court about the presence of percentage of heroin in M.Os.31 to 42. In the report dated 10/3/2006 as already stated supra the presence of percentage of Diacetyl Morphine cannot be determined as GC instrument is presently is not in working condition. In 2008 AIR SCW 2365 (E.Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau) 2008 Cri.L.J.2250 in the Head Note (A) it has been stated: "In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug and psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant of the purposes of determining whether it would constitute small quantity or commercial quantity." In 2009 AIR SCW 1621 (State of NCT of Delhi Vs. It is only the actual content by weight of the narcotic drug which is relevant of the purposes of determining whether it would constitute small quantity or commercial quantity." In 2009 AIR SCW 1621 (State of NCT of Delhi Vs. Ashif Khan (@ Kalu) = (2009) 2 Supreme Court Cases (Cri) 54 in the Head Note it has been stated: "Narcotic Drugs and Substances Act (61 of 1985), S.21 Charge of Psychotropic possession of narcotic drug - "Small quantity" or "commercial quantity Determination Weight of drug recovered from accused - Note relevant It is actual contents by weight of narcotic drug or psychotropic substance that is found in substance recovered that is relevant. 65. In heroin neutral substances will be mixed. Therefore it is for the chemical examiner to state about the presence of percentage of heroin. Only from the presence of percentage of heroin one could know the possession of contraband whether it comes under small quantity or in between small quantity and commercial quantity or it comes under commercial quantity, as the contraband said to have been seized 11.355 kgs is not heroin in its total weight. From the above said decisions it reveals that weight of the drug recovered is not relevant and it is only actual content of weight of narcotic drug or psychotropic substance that is found in the substance is relevant. Therefore presence of percentage of heroin is important. In the test report it has not been mentioned the presence of percentage of heroin. For an argument sake I will go to the extent if the accused are going to be convicted whether the accused have to be punished for the small quantity or for in between small quantity and commercial quantity for commercial quantity. Different types of punishments are prescribed for small quantity, punishment in case of in between small quantity and commercial quantity and for the punishment of commercial quantity. If such type of report without presence of percentage of heroin is mentioned, then it is very difficult to give what type of punishment has to be levied to the accused. Even on this count also prosecution case is pale and insignificant. When the test report dated 10/3/2006 is not marked and the chemical examiner-C.W.7 is not examined, there is no proof or evidence to that effect before the court." 12. Even on this count also prosecution case is pale and insignificant. When the test report dated 10/3/2006 is not marked and the chemical examiner-C.W.7 is not examined, there is no proof or evidence to that effect before the court." 12. On careful examination of the entire evidence on record and also impugned judgment passed by the trial Court, I do not find any error/illegalities in the impugned judgment passed by the trial Court. Hence, I proceed to pass the following: ORDER i) Appeal is dismissed as devoid of merits. ii) Registry is directed to send the copy of this judgment to the trial Court.