JUDGMENT : YARENJUNGLA LONGKUMER, J. 1. Heard learned counsel for the appellant Ms. Khriekethonuo. Also heard the learned Public Prosecutor for the State of Nagaland, Mr. K. Angami. 2. The instant appeal is directed against the Judgment and Order dated 18.03.2020 passed by the learned Special Judge NDPS Phek, Nagaland in Sessions Special Case No. 08/19 in GR Case No. 29/19 arising out of Pfutsero P.S Case No. 08/19 whereby the appellant has been convicted under Section 20(b)(ii)(C) NDPS Act for a period of 10 years with fine of Rs. 1 Lakh and in default to undergo RI for one year. 3. The prosecution case in brief is that on 25.06.2019, at around 0145 Hrs, a written FIR was received at the Pfutsero Police Station from Naik Subedar D.D. Joshi of 14 th Assam Rifles stating that on 24.06.2019 at around 2100 Hrs while conducting surprise MVCP one suspected driver of Maruti Alto bearing Registration No. NL-01T-9577 fled from the scene to avert apprehension, leaving the vehicle behind. Upon search of the vehicle, 50 Kgs of suspected Marijuana (Ganja) in 5 sealed black poly bags were recovered. The vehicle and the seized contraband were produced at the Pfutsero Police Station and re-seized by the police under proper seizure memos. On receipt of the FIR, the case was taken up for investigation. 4. During the investigation the owner of the seized vehicle was summoned and upon examination it was revealed that his friend, Weshete Lohe/accused had borrowed his vehicle on the pretext of visiting an ailing relative at Pfutsero Town. The accused/appellant surrendered before the police and admitted his crime. The complainant and one witness were examined along with the accused person. The seized articles were brought before the S.D.O.(C) Pfutsero, sealed and packed and samples of the contraband articles were drawn and sent for forensic examination. The FSL Report confirmed that the samples tested positive for Cannabis/Ganja. Having found a prima facie case against the appellant under Section 20(b) (ii) (C) of the NDPS Act the I.O submitted the Chargesheet. Charge was framed against the appellant/accused under Section 20(b)(ii)(C) NDPS Act on 20.11.2019. Charge was read over and explained to the accused/appellant and he pleaded not guilty and claimed to be tried. The matter, accordingly, went up for trial. 5. In order to bring home the charge against the accused/appellant the prosecution side examined 5 witnesses and exhibited 7 documents. Charge was framed against the appellant/accused under Section 20(b)(ii)(C) NDPS Act on 20.11.2019. Charge was read over and explained to the accused/appellant and he pleaded not guilty and claimed to be tried. The matter, accordingly, went up for trial. 5. In order to bring home the charge against the accused/appellant the prosecution side examined 5 witnesses and exhibited 7 documents. The defence did not adduce any evidence. 6. Upon examining the evidence available on record, the learned Trial Court was of the view that the presumption of culpable mental state can be made against the accused and that the prosecution has succeeded in establishing the case against the appellant/accused and proved the charges brought against the appellant under Section 20(b)(ii)(C) NDPS Act beyond reasonable doubt and, accordingly, convicted and sentenced the appellant by the impugned Judgment and order dated 18.03.2020. 7. Assailing the impugned Judgment and Sentence dated 18.03.2020, the learned counsel for the appellant has submitted that there is no independent witness to the seizure. All the prosecution witnesses are Police personnel and Assam Rifles personnel except for the owner of the seized vehicle. Nothing was seized from the possession of the accused/appellant and the possession was not proved by cogent and reliable evidence. There was no evidence that the accused/appellant was travelling in the seized vehicle or that he was the one who was carrying the seized contraband items in the seized vehicle, except for the deposition of PW/4 who deposed that the accused borrowed his vehicle on 24.06.2019. Beside this statement PW/4 did not know anything. 8. The learned counsel submits that as per Section 2.3 of the Standing Order, i.e., S.O. No. 1/89 dated 13.06.1989 as well as Notification No. G.S.R. 899(E) dated 23.12.2022, the specified quantity to be drawn in each sample for Opium, Ganja and Charas is 24 gms. Failure to adhere to these guidelines renders the forensic analysis unreliable. In the instant case, as per the Letter dated 26.06.2019, written by the Investigating Officer of the case to the Superintendent of Police, Phek forwarding the samples to be tested the three samples were of 30 gms, 25 gms and 15 gms respectively. And again the FSL Report dated 29.07.2019 shows that the samples received weighed 27 gms, 26 gms and 18 gms respectively. And again the FSL Report dated 29.07.2019 shows that the samples received weighed 27 gms, 26 gms and 18 gms respectively. Not only was the weight of samples contradictory to the standing instructions but there is also discrepancy in weight in the various communications regarding the samples. As such, the learned Trial Court could not have relied on the Forensic Report dated 25.02.2022. 9. Learned counsel for the appellant further submits that the chain of custody in respect of the seized articles from the stage of seizure till the production before the Magistrate has not been proved and, further, there is no inventory list as mandated under Section 52A of the NDPS Act. It is mandatory on the part of the investigating authority to certify the correctness of the inventory by a Magistrate and to take photographs of such seized articles and to certify the photographs in the presence of such Magistrate and also to draw the representative samples of the seized articles in the presence of the Magistrate. The procedure under Section 52A of the NDPS Act has been given a total go by in the present case and on this ground alone the impugned Judgment and Order dated 18.03.2020 needs to be quashed and set aside. 10. The learned counsel for the appellant further submits that the learned Trial Court has convicted the accused/appellant solely on the basis of the Sec 161 CRPC statement of the accused, the Section 313 CRPC statement of the accused and the deposition of PW-4/owner of the seized vehicle. No other evidence has been adduced to corroborate the same as the confessional statement under Section 161 CrPC is not admissible in evidence. Further, the PW-4 only stated that the accused/appellant had asked for his vehicle on 24.06.2019 to carry a sick person for treatment. He deposed that on the next day he came to know about the seizure of his vehicle by the Assam Rifles. Learned counsel for the appellant, therefore, submits that there is no witness who has seen the accused keeping the seized articles inside the vehicle or there is also no witness who saw the accused/appellant driving the vehicle or even being near the vehicle when it was seized. Learned counsel, therefore, submits that the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. 11. Learned counsel, therefore, submits that the prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. 11. In view of the submissions made hereinabove, the learned counsel for the appellant submits that the impugned Judgment and Sentence dated 18.03.2020 may be quashed and set aside and the accused/appellant may be acquitted and set at liberty. 12. Learned Public Prosecutor, Mr. K. Angami submits that the prosecution has led sufficient evidence to establish the fact that the appellant had committed the offence under Section 20(b)(ii)(C) NDPS Act. He has submitted that the seizure of the contraband items has been proved by the PW-1 and 2 who are the Assam Rifles personnel who made the search and seizure from the seized vehicle. Learned Public Prosecutor also submits that the FSL Report dated 25.02.2022 has clearly proved that the seized items tested positive for cannabis/ganja. Learned Public prosecutor has, however, fairly submitted that there is no inventory list in the records. Learned Public Prosecutor, therefore, submits that all the procedural requirements have been carried out by the Investigating Agency and, therefore, the impugned Judgment and Sentence dated 18.03.2020 does not warrant the interference of this Court. 13. This Court has considered the arguments advanced by the learned counsel for both sides and have examined the evidence available on record. As noted above, there are 5 prosecution witnesses. The defence has not adduced any evidence. 14. PW-1 is Naik Subedar D.D. Joshi of the 14 th Assam Rifles. He deposed that on 24.06.2018, at around 8:15 PM he along with 10 other jawans was on MVCP duty near Pfutsero. They were checking the vehicles and at that time one Maruti Alto vehicle was parked along with two vehicles in the front. However, the particular Alto vehicle was left abandoned and upon checking they found ganja packets inside the vehicle. They took the vehicle and the contraband ganja and submitted the same at the Pfutsero Police Station. PW-1 deposed that he is the complainant and he submitted the FIR. Upon lodging the FIR the contraband ganja was weighed and it was a total of 50 kgs, each packet weighing 10 kgs. On being cross-examined, PW-1 stated that he did not see anyone fleeing from the scene to evade apprehension by leaving the vehicle behind. He also stated that he cannot identify the accused. 15. Upon lodging the FIR the contraband ganja was weighed and it was a total of 50 kgs, each packet weighing 10 kgs. On being cross-examined, PW-1 stated that he did not see anyone fleeing from the scene to evade apprehension by leaving the vehicle behind. He also stated that he cannot identify the accused. 15. PW-2 is O.D. Singh of the 14 th Assam Rifles. His deposition was the same as that of PW-1 and in his cross-examination he also deposed that there was no person inside the Alto vehicle which was abandoned near the MVCP area. PW-2 also could not identify the accused person in the Court. PW-2 stated that there was no public witness during the seizure of the consignment. 16. PW-3 is a police personnel posted at the Pfutsero Police Station. He deposed that the seized article was produced in the Police Station when he was on duty. He stated that the contraband ganja was weighed in his presence and there were 5 packets of 10 kgs each. On being cross- examined, PW-3 stated that he was not at the place of occurrence when the incident took place. 17. PW-4/Meyielo Losou is the owner of the seized vehicle. He deposed that the accused person had asked for his vehicle to carry a sick person for treatment on 24.06.2019. He gave the vehicle to the accused/appellant in good faith but later on he got information that his vehicle was seized by the Assam Rifles. In his cross-examination the PW-4 stated that he saw the contraband ganja only at the Police Station when he went to find out about his vehicle. He also stated that he was informed about the seizure of the vehicle by the accused person and not by the police. 18. PW-5 is the Investigating Officer of the case. He deposed that on 24.06.2019, an Alto vehicle was seized by the Assam Rifles at Razeba Junction. The vehicle was left abandoned and the Assam Rifles on searching the vehicle found 50 kgs of ganja in 5 packets. The vehicle along with the seized ganja was produced at the Police Station the following day. He deposed that on 24.06.2019, an Alto vehicle was seized by the Assam Rifles at Razeba Junction. The vehicle was left abandoned and the Assam Rifles on searching the vehicle found 50 kgs of ganja in 5 packets. The vehicle along with the seized ganja was produced at the Police Station the following day. They searched for the owner of the seized vehicle and one Meyielo surrendered himself at the Police Station and stated that his friend, Weshete/accused took his vehicle on the pretext of carrying a sick person for treatment and that he did not know that his vehicle was used for illegal transaction. After some time the accused surrendered himself before the Police Station and stated that he had asked for his friend’s vehicle and used it for carrying the contraband ganja but on seeing the Assam Rifles checking the vehicles at Razeba Junction he fled from the place leaving the vehicle behind. PW-5 also stated that the contraband ganja was in 5 packets of 10 kgs each and the ganja was produced before the Magistrate/S.D.O.(C) Pfutsero and it was packed and sealed in his presence. The Report of the FSL was received which stated that the samples tested positive for cannabis/ganja. Accordingly, he submitted the Charge-Sheet which he proved as Exhibit-P3. In his cross-examination, PW-5 admitted that there is no independent witness in the present case. He also stated that the seized ganja was sent to the FSL in 3 packets of 30 gms each. 19. In the case of Noor Aga Versus State of Punjab reported in (2008) 16 SCC 417 , the Supreme Court has held that the initial burden to establish the foundational facts lies squarely on the prosecution. In Mohan Lal vrs State of Punjab reported in (2018) 17 SCC 627 , the Hon’ble Supreme Court held as follows: “Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the FIR recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. But that cannot be understood to mean that the moment an allegation is made and the FIR recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability . The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities.” The presumption under Section 35 of the NDPS Act is an evidentiary inference and cannot be invoked in a vacuum. The prosecution has to first establish the basic facts, i.e, possession/seizure, identification of the substance, proper seizure procedure, etc. Only after such burden is discharged the onus shifts to the accused. 20. This Court, upon going through the evidence in the present case is of the view that the prosecution has not been able to prove the foundational fact regarding the seizure and possession in respect of the appellant/accused and further the conscious possession of the seized article has not been proved. For the conviction of a person under NDPS Act it must be shown that the possession was conscious and not accidental or without knowledge. The accused must know that he/she is in possession of the contraband and have control over the same. In the present case, another important factor to be considered is that the Assam Rifles personnel from the rank of Sub-Inspector and above have been empowered under Section 42 and 67 of the NDPS Act only by a Notification No. S.O.5064 (E) dated 08.12.2021. Therefore, before 08.12.2021 the Assam Rifles personnel cannot be termed as empowered officers. The complainant/seizing officer D.D Joshi and PW-2/O.D. Singh were neither gazetted officers nor empowered officers. There were also no empowered police or Excise officers with them during the search. Therefore, before 08.12.2021 the Assam Rifles personnel cannot be termed as empowered officers. The complainant/seizing officer D.D Joshi and PW-2/O.D. Singh were neither gazetted officers nor empowered officers. There were also no empowered police or Excise officers with them during the search. Because of this lack of statutory power the search and seizure by the Assam Rifles personnel has vitiated the seizure in this case. The hon’ble Supreme Court in State of Punjab Versus Balbir Singh reported in 1994 SCC (3) 299 made the following observations,…….”In Bhajan Singh Vrs State of Haryana , it was observed that only officers empowered under the Act can take steps regarding entry, search, seizure and arrest and that the relevant provisions of the Act are mandatory. In Umrao Vrs. State of Rajasthan, it was held that the search made by a police constable without jurisdiction and investigation made by an officer not empowered, vitiates the trial. In Shanti Lal vrs. State of Rajasthan, it was similarly held that search and seizure made by SHO who was not authorized under the Act were illegal………..Therefore, if an arrest or search contemplated under Section 41 and 42 is made under a warrant issued by any other magistrate or is made by any officer not empowered or authorized, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial.” Admittedly, there were no independent witnesses to the seizure and the seizure was made from an abandoned vehicle. Further, no evidence has been adduced by the prosecution to connect the seizure with the accused/appellant. 21. The law is settled that only when the prosecution is able to prove the possession, the burden shifts to the accused to rebut the presumption of knowledge under Section 35 and 54 of the NDPS Act. It must be borne in mind that the more severe the punishment, the greater has to be the case taken to see that all the safeguards provided in a statute are scrupulously followed. 22. It must be borne in mind that the more severe the punishment, the greater has to be the case taken to see that all the safeguards provided in a statute are scrupulously followed. 22. Even assuming but not admitting that the foundational facts had been proved, there are glaring violations of statutory provisions of the NDPS Act in the prosecution case as far as the chain of custody in respect of the seized articles is concerned in as much as there is no inventory list nor any certification of photographs by the Magistrate nor production of any Malkhana register to show the safekeeping of the seized items. No evidence has been produced by the prosecution to prove the safe keeping of the contraband till they were placed before the Magistrate for being certified and sent to the FSL for being tested. If at all entries were made, the Malkhana register could have been very easily produced by the prosecution showing entry therein of the articles having been deposited there but this has not been done. The sample of the seal used for packing the samples has also neither been produced before Court nor was it sent to FSL for comparison. This creates a doubt as to whether the said articles were actually kept in safe condition or whether such kind of recovery has been made from the seized vehicle at all. 23 . There is also irregularity in the weight of the samples sent to the FSL as it was not done in accordance with the Standing Orders dated 13.06.1989 or 23.12.2022. As submitted by the learned counsel for the appellant the accused’s statement under Section 161 CrPC is not admissible in evidence and the Section 313 CrPC statement can be used only for corroboration but it is not substantive evidence as it is not a statement under oath and without cogent and reliable evidence being adduced conviction cannot be made solely on the basis of such statements. More so in the present case where there is no evidence at all adduced by the prosecution to connect the accused/appellant with the seizure or the possession of the seized articles. 24. As the foundational facts have not been established by the prosecution in the present case, this Court does not find it necessary to go into the other grounds put forward by the appellant. 24. As the foundational facts have not been established by the prosecution in the present case, this Court does not find it necessary to go into the other grounds put forward by the appellant. Since the foundational facts of (i) proper and lawful search and seizure and (ii) recovery of contraband from the conscious possession of the accused are not proved, the accused cannot be called upon to rebut any presumption and acquittal must follow. On this ground alone, the Judgment and Sentence dated 18.03.2020 is liable to be interfered with. 25. In the result, the appeal is allowed. The impugned Judgment and Sentence dated 18.03.2020 in Sessions Special Case No. 08/19 in GR Case No. 29/19 arising out of Pfutsero P.S Case No. 08/19 is quashed and set aside. As the accused/appellant is stated to be on bail no order is passed for his release. 26. Appeal stands disposed. The Registry is directed to send back the Trial Court Records.