JUDGMENT : JOHNSON JOHN, J. 1. The appellants are accused Nos. 1 and 2 in S.C. (NDPS) No. 4 of 2007 on the file of the Special Judge for NDPS Act Cases, Thodupuzha and they are challenging the conviction and sentence imposed on them for the offence under Section 20 (a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act” for short). 2. The prosecution case is that on 23.02.1998, while the Excise Circle Inspector of Narcotic Enforcement Squad, Adimaly was checking the vehicles at Top Station Kovilloor road, he got information about ganja cultivation in the Government forest area near Vadavari and accordingly, after recording the information and forwarding the same to the higher officials, he proceeded to the forest area along with the excise party by walking and when they reached the place of occurrence, they saw two persons engaged in nursing the ganja cultivation. They saw a shed covered by plastic sheet at a distance of 100 metres from the ganja cultivation. 3. The Circle Inspector arrested the accused persons and out of the ganja plants numbering 2280, three plants were taken as sample and the remaining ganja plants were destroyed. Thereafter, the shed was searched in the presence of the accused persons and implements for cultivation, utensils for manufacturing food etc. were recovered. It is stated that they also recovered a country-made gun and 4 bullets from the shed. The Excise Circle Inspector of the Narcotic Enforcement Squad, Adimaly conducted the investigation and filed final report against the accused persons for the offence under Section 20 (a)(i) of the NDPS Act. 4. When the accused persons appeared before the trial court, after hearing both sides, charge was framed under Section 20 (a)(i) of the NDPS Act and when the accused persons pleaded not guilty, PWs 1 to 7 were examined and Exhibits P1 to P13 and MOs 1 to 4 series were marked from the side of the prosecution. From the side of the accused, Exhibits D1 and D2 were marked. 5. From the side of the accused, Exhibits D1 and D2 were marked. 5. After hearing both sides and considering the oral and documentary evidence on record, the learned Special Judge, as per the impugned judgment dated 07.02.2008, convicted and sentenced the accused persons to undergo rigorous imprisonment for four years and to pay a fine of Rs.50,000/- each and in default of payment of fine, to undergo simple imprisonment for six months each for the offence under Section 20 (a)(i) of the NDPS Act. 6. Heard Sri. George Vinci Jose, the learned counsel representing the learned counsel for the appellant on record and Sri. Alex M. Thombra, the learned Senior Public Prosecutor for the State and perused the records. 7. The point that arise for consideration is whether the conviction and sentence passed against the accused are legally sustainable. 8. The main contentions raised on behalf of the appellants are the following: I. The prosecution has not produced any notification under Section 53 of the NDPS Act empowering the Circle Inspector of the Narcotic Special Squad, Adimaly with the powers of an officer in charge of a Police Station for the investigation of the offences under the Act. II. The prosecution has not explained the delay in producing the sample before the court. III. The prosecution has not explained the inordinate delay in producing the sample in the Chemical Examiner's Laboratory. IV. There is non compliance of Sections 42 and 57 of the NDPS Act and the same caused prejudice to the accused and resulted in failure of justice. V. No satisfactory evidence is adduced to prove the manner of sampling as well as its safe custody in tamper free condition. VI. There is no satisfactory explanation as to why the Excise Circle Inspector has not reported the seizure of the country-made gun and cartridges to the police for registering a crime under the relevant provisions of the Indian Arms Act. 9. PW1 was the Circle Inspector of Narcotic Special Squad, Adimaly who detected this case and conducted investigation. The evidence of PW1 and Exhibit P3 mahazar dated 23.02.1998 shows that on getting information about the cultivation of ganja plants in the forest area, in order to avoid leak of information regarding the raid, he proceeded to the place of occurrence along with excise party without informing the forest officials. 10. The evidence of PW1 and Exhibit P3 mahazar dated 23.02.1998 shows that on getting information about the cultivation of ganja plants in the forest area, in order to avoid leak of information regarding the raid, he proceeded to the place of occurrence along with excise party without informing the forest officials. 10. The evidence of PW1 shows that at the time of search, he was not accompanied by any independent witness from the locality. According to PW1, he forwarded a report under Section 42 (2) of the NDPS Act to the Assistant Excise Commissioner; but, it is not seen produced before the court. PW1 deposed that out of the total 2280 ganja plants, he took three plants as sample and after packing and affixing seal, he also affixed a label marked ‘A’ in the sample with his signature and the signature of the accused persons. 11. In cross examination, PW1 stated that the accused were spreading fertilizer in the ganja plantation. PW1 would say that they were in uniform; but, there was no attempt on the part of the accused to run away on seeing the excise party. PW1 admitted that on the same day, he detected another case of ganja plantation; but, he cannot remember the number of the said case or whether the accused were acquitted in that case. 12. PW2 is the Excise Preventive Officer who accompanied PW1 and he also admitted that they have not informed the forest officials about the raid and they have not reported the seizure of the country-made gun and cartridges to the police. 13. PW3 is the Assistant Excise Commissioner who obtained plan and certificate from the Village Officer. The evidence of PW6, Village Officer, and Exhibit P12, possession certificate, and Exhibit P13, site plan, would show that the place of occurrence is a Government waste land comprised in survey No. 183 of Block No. 62 in Vattavada Village in the possession of the Forest Department. From Exhibit P12, certificate, and Exhibit P13, site plan, it is clear that the place of occurrence is not forest as deposed by PWs 1 and 2. 14. PW5 was the Assistant Excise Commissioner of Thodupuzha on 23.2.1998 and he deposed that Exhibits P10 and P11 are the copies of the information and grounds of information received from PW1 and that Exhibit P7 is the report received by him regarding the registration of the crime. 14. PW5 was the Assistant Excise Commissioner of Thodupuzha on 23.2.1998 and he deposed that Exhibits P10 and P11 are the copies of the information and grounds of information received from PW1 and that Exhibit P7 is the report received by him regarding the registration of the crime. In cross examination, PW5 admitted that he has not produced the original of Exhibits P10 and P11 in the court and there is also no endorsement in Exhibits P10 and P11 to indicate that he received the original of the same. In cross examination, PW5 categorically admitted that at the time of receiving the original, he used to endorse in the copy regarding the receipt of the original and there is no such endorsement in Exhibits P10 and P11. 15. PW7 deposed that he was working as Circle Inspector in the Narcotic Enforcement Squad, Adimaly from August, 2001 to July, 2002 and during that period, he recorded the statement of the Detecting Officer and the Range Officer. But, he would say that further investigation was conducted by his successor in office. In cross examination, when a specific question was put to PW7, as to whether any offence under the Arms Act was detected in this case, the witness stated that he has not conducted any investigation regarding the same. 16. In Varinder Kumar v. State of H.P. (2020) 3 SCC 321 , a three-Judge Bench of the Honourable Supreme Court held that all pending criminal prosecution, trials and appeals prior to the law laid down in Mohan Lal v. State of Punjab [ (2018) 17 SCC 627 ] shall continue to be governed by the individual facts of the case. It is not in dispute that in this case, the alleged occurrence was on 23.02.1998 and therefore, the law laid down in Mohan Lal ’s case (supra) is not applicable. 17. The decision of the Honourable Supreme Court in Mukesh Singh v. State (NCT of Delhi) , (2020) 10 SCC 120 shows that in a case where the informant himself is the investigator, by that itself, it cannot be said that the investigation is vitiated on the ground of bias or prejudice and that the question of bias or prejudice would depend upon the facts and circumstances of each case. In Mukesh Singh (supra), it was further held that the contrary view in Mohan Lal (supra) that the informant cannot be the investigator and in such a case, the accused is entitled to acquittal is not good law and the same is over ruled. 18. The learned counsel for the appellant pointed out that the prosecution has not produced any notification under Section 53 of the NDPS Act empowering PW1 or any other Inspector of the Narcotic Enforcement Squad, Adimaly investing with powers of an officer-in-charge of a Police Station. of the NDPS Act reads thus: “53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station .— (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.” 19. In this case, PW1, Circle Inspector of Narcotic Enforcement Squad, Adimaly, has not handed over the accused and properties to the Excise Range Office, Adimaly and the evidence of PW1 shows that he registered the crime and conducted the investigation. It is true that Section 53 of the NDPS Act does not say that all those officers to be authorized to exercise the powers of an officer in charge of Police Station for the investigation of the offences under the NDPS Act, shall be other than those officers authorised under Sections 41 to 44 of the NDPS Act. But, in the absence of a notification under of the NDPS Act, it cannot be held that PW1 was having the powers of an officer-in-charge of a Police Station for the investigation of the offences under the NDPS Act as on 23.02.1998, the alleged date of occurrence in this case. 20. But, in the absence of a notification under of the NDPS Act, it cannot be held that PW1 was having the powers of an officer-in-charge of a Police Station for the investigation of the offences under the NDPS Act as on 23.02.1998, the alleged date of occurrence in this case. 20. The decision of the Honourable Supreme Court in Mukesh Singh (supra) would show that in a case where the informant himself is the investigator, by that itself it cannot be said that the investigation is vitiated on the ground of bias or prejudice and that the matter has to be decided on a case-to-case basis. 21. Exhibit D1, certified copy of the judgment in CC No. 6 of 2003 of the Special Judge for NDPS Act cases, Thodupuzha and Exhibit D2, copy of the deposition of PW1 in that case, would show that the allegation in the said case is that on 23.02.1998, the Excise Circle Inspector attached to Narcotic Enforcement Squad, Adimaly detected ganja cultivation in the forest area near Top Station, Kovilloor road and arrested two accused persons from the spot. The learned counsel for the appellant pointed out that Exhibit D1 judgment would show that the allegations in the said case are similar to the allegations in this case and the very same Circle Inspector of Narcotic Enforcement Squad, Adimaly detected both these cases on the same day and the allegations against the accused in both the cases are almost similar. 22. Exhibit P3 mahazar, Exhibit P5 property list and Exhibit P4 search list in this case reached the court only on 26.02.1998 and there is no explanation from the side of the prosecution regarding the delay in producing the said documents and properties before the court. 23. Exhibit P9, certificate of chemical analysis dated 27.11.1998, shows that the sample forwarded from the Sessions Judge, Thodupuzha, as per letter dated 26.02.1998 through the excise guard, Baby Thomas, was produced in the Chemical Examiner's Laboratory only on 19.03.1998. In this case, the prosecution has not examined the property clerk of the court or the excise guard with whom the sample was entrusted for producing in the laboratory to explain the reason for the delay in producing the sample in the Chemical Examiner's Laboratory. In this case, the prosecution has not examined the property clerk of the court or the excise guard with whom the sample was entrusted for producing in the laboratory to explain the reason for the delay in producing the sample in the Chemical Examiner's Laboratory. In this connection the learned counsel for the appellant also pointed out that the evidence of PW1 and Exhibit P3, mahazar, would show that PW1 affixed a label marked ‘A’ in the sample with his signature and the signature of the accused persons and there is nothing in Exhibit P9, chemical analysis report, to show that the sample packet contained any label marked ‘A’ with the signature of the Detecting Officer and the accused persons. 24. The evidence of PW5 in cross examination would clearly show that he is not sure, whether he received the original of Exhibits P10 and P11 and there is also no satisfactory explanation as to why the seizure of the country-made gun and cartridges were not reported to the police for registering the crime under the relevant provisions of the Indian Arms Act and therefore, I find merit in the argument of the learned counsel for the appellants that there are significant procedural violations. 25. In the absence of satisfactory evidence to show as to how and in what condition the articles were preserved by PW1 before the same was produced in the court along with Exhibit P5, property list, on 26.02.1998 and as to how safely the sample was taken by the excise guard, Baby Thomas, from the court to the Chemical Examiner's Laboratory, I find merit in the argument of the learned counsel for the appellant that there is a strong circumstance to doubt the genuineness of the sample and the credibility of the prosecution case. 26. The decision of the Honourable Supreme Court in State of U.P. v. Hansraj , (2018) 18 SCC 355 and the decisions of this Court in Faijas v. State of Kerala , 2020 Cri. L.J. 4758 and Renjith v. State of Kerala , 2024 KHC OnLine 7030 : 2024 KER 76032 would show that unexplained delay in producing the contraband before the court and the sample before the Chemical Examiner's Laboratory are strong circumstances affecting the credibility of the prosecution case. L.J. 4758 and Renjith v. State of Kerala , 2024 KHC OnLine 7030 : 2024 KER 76032 would show that unexplained delay in producing the contraband before the court and the sample before the Chemical Examiner's Laboratory are strong circumstances affecting the credibility of the prosecution case. It is also pertinent to note that PW1 has not affixed the specimen impression of the seal on Exhibit P3 seizure mahazar and therefore, considering the entire facts and circumstances of the case, this court finds that the accused are entitled for the benefit of reasonable doubt and the impugned judgment is liable to be set aside. In the result, the appeal is allowed and the impugned judgment is set aside and the accused/appellants are acquitted of the offence under 20(a)(i) of the NDPS Act. The bail bond executed by the appellants/accused shall stand cancelled and they are set at liberty forthwith.