JUDGMENT : Naresh Kumar Chandravanshi, J. 1. The present appeal has been preferred by the appellant under Section 374 (2) of the Criminal Procedure Code, 1973 against the impugned judgment of conviction and order of sentence dated 26.12.2022 passed by First Additional Sessions Judge/ Special Judge, NDPS Act, South Bastar – Dantewada (C.G.) in Special Criminal Case (NDPS Act) No. 33/2019, whereby appellant has been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth, 'NDPS Act') and sentenced him to undergo rigorous imprisonment for 10 years withfine of Rs.1,00,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for 500 days. 2. Case of the prosecution, in brief, is that on 21.06.2019, Station House Officer – Praveen Minj (PW-8) of Pushpal Police Station received information from an informant that a Truck bearing registration No. M.P. 09 H.G. 5134 is transporting contraband substance ganja from Padamgiri, Odisha to Sukuma unauthorizedly for sale. The said secret information was recorded in rojnamcha sanha. The intimation about secret information was sent to Senior Officers. Two independent witnesses were called. Necessary Rojnamcha Sanhas and Mukbir suchna panchnama were prepared. Above information was sent to Sub Divisional Officer (P), Tongpal. Subsequently, police party proceeded towards the place of occurrence and cordoned off at village Gumma, Main Road, under Police Station Pushpal. After reaching there, aforesaid Truck was stopped and the person, who was occupant of the said Truck, has informed his name as Ashish Kumar Pandey. Notice under Section 50 of NDPS Act was served to the appellant/accused. Necessary Panchnamas were prepared. After preparing necessary Panchnamas, they searched the aforesaid vehicle and found contraband substance ganja kept in 28 plastic bags/packets in separately built box in the carrier of the truck, which was recovered vide Ex.P-8. The said contraband substance was identified as Ganja by tasting, to which identification Panchnama (Ex.P-9) was prepared. After weighing the 28 plastic bags/packets of Ganja, the total weight was found to be 1215.295 kilograms. Thereafter, search of accused/appellant was started, in which, one mobile phone and Rs.4,050/- cash were found. The recovered ganja was homogenized, 2-2 samples of 50-50 gm from each packets, total 56 samples were prepared vide Samras Panchnama (Ex-P/13) and sample panchnama (Ex-P/14), aforesaid truck, documents in respect of the said truck, one mobile, Rs.4050 and contraband substance were seized from the appellant vide seizure memo Ex-P/15. The recovered ganja was homogenized, 2-2 samples of 50-50 gm from each packets, total 56 samples were prepared vide Samras Panchnama (Ex-P/13) and sample panchnama (Ex-P/14), aforesaid truck, documents in respect of the said truck, one mobile, Rs.4050 and contraband substance were seized from the appellant vide seizure memo Ex-P/15. Thereafter, notice under Section 67 of NDPS Act was given to the appellant, but he failed to produce any valid document for its transportation. Necessary Panchnamas were prepared and at the place of occurrence, unnumbered Dahati Nalishi (Ex.P-29) was registered under Section 20 (b) of the NDPS Act. Based on which, FIR (Ex-P/30) was registered against the appellant. Seized/recovered contraband substance and articles were deposited in Malkhana of the concerned police station and receipt thereof was obtained. Statement of the witnesses were recorded. Spot map were prepared by the Police vide Ex.P-26. Samples marked as Ex. 01-1 to 28-1 of seized contraband was sent to FSL, Raipur, to which vide its report Ex. 33-A, the FSL reported that samples Ex. 01-1 to P-28-1 is Ganja. Physical verification of aforesaid contraband substance was got done vide Ex.P/35 from Executive Magistrate. 3. After completion of usual investigation, a charge-sheet was filed before the learned Special Court for the offence under Section 20(b)) of the NDPS Act. 4. Learned Special Judge framed charge against the appellant/accused under Section 20(b)(ii)(C) of the NDPS Act. He abjured the guilt and claimed trial. 5. In order to establish the charge against the appellant, the prosecution has examined following witnesses and exhibited following documents :- WITNESSES PW 1 Sanjay Sethia P.W. 5 Ayal Ram Mourya PW 2 Constable Munna Netam P.W. 6 Prakash Kumar Verma PW 3 Mongraj Baghel P.W. 7 Gulab Ram Mandavi PW 4 Daud Kashyap P.W. 8 Praveen Minj EXHIBITS 1. Ex. P-1 Notice to Dawood Kashyap & Sanjay Sethia under Section 160 Cr.P.C. 28. Ex. P-13 Samras Panchnama 2. Ex. P-2 Informant’s Information Panchnama 29. Ex. P-14 Sample Panchnama 3. Ex. P-3 Notice to the suspect regarding search, Panchnama under Section 50 of the NDPS Act. 30. Ex. P-15 Property seizure report of appellant/ accused. 4. Ex. P-4 Search panchnama of the vehicle of the suspect/accused. 31. Ex. P-16 Arrest warrant of appellant. 5. Ex. P-5 Consent panchnama for search. 32. Ex. P-17 Police statement of Sanjay Sethia. 6. Ex. P-6 Search panchnama of witnesses. 33. Ex. P-18 Notice for weighing. 7. Ex. 30. Ex. P-15 Property seizure report of appellant/ accused. 4. Ex. P-4 Search panchnama of the vehicle of the suspect/accused. 31. Ex. P-16 Arrest warrant of appellant. 5. Ex. P-5 Consent panchnama for search. 32. Ex. P-17 Police statement of Sanjay Sethia. 6. Ex. P-6 Search panchnama of witnesses. 33. Ex. P-18 Notice for weighing. 7. Ex. P-7 Search Panchnama of himself & police party. 34. Ex. P-19 Police statement by Bauy Kashyap. 8. Ex. P-8 Recovery Panchnama 35. Ex. P-20 Duty Certificate of Aaytu Ram. 9. Ex. P-9 Identification panchnama of narcotic substance 36. Ex. P-21 Acknowledgment of seized goods. 10. Ex. P-10 Physical verification of Panchnama weighing scale. 37. Ex. P-22 Non-receipt of informant’s information and search warrant. 11. Ex. P-11 Weighing Panchnama 38. Ex. P-23 Panchnama for not obtaining search warrant 12. Ex. P-12 Sample seal panchnama. 39. Ex. P-24 Notice under Section 67 of the NDPS Act. 40. Ex.P-25 Search Panchnama of Weigher 41. Ex.P-26 Spot map 42. Ex.P-27 Duty Certfificate of Nand Kumar Netam 43. Ex.P-28 Duty Certificate of Prakash Saha 44. Ex.P-29 Dehati Nalishi 45. Ex.P-30 FIR 46. Ex.P-31 Memo to Tahsildar for preparing Spot Map 47. Ex.P-32 Receipt of sending the seized items to FSL 48. Ex.P-33 FSL Report 49 Ex.P-34 Memo to Magistrate, Sukuma for physical verification of seized material 50. Ex.P-35 Physical verification Panchnama 6. After appreciation of the evidence adduced by the prosecution, the Special court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant submits that in all three documents i.e. Taul Panchnama (Ex.P-11), Samrash panchnama (Ex.P-13) and Sample panchnama (Ex.P-14), it has been mentioned that 56 samples of each plastic bag/packet were prepared, but Samras panchnama (Ex.P-13) was prepared after ½ hour from preparation of Taul panchnama (Ex.P-11) and Sample panchnama was prepared after 20 minutes from preparation of Samras panchnama (Ex.P-13), then how in all three occasions, sample could have been prepared. It is also argued that Ex.P-14 is said to be the Sample panchnama but it does not bear the signature of the officer, who prepared the sample, nor it has been mentioned in Ex. P-14 that after collection of samples, those samples were sealed. Sample of seal put in alleged sample has also not been affixed in Namuna Seal panchnama (Ex.P-12). P-14 that after collection of samples, those samples were sealed. Sample of seal put in alleged sample has also not been affixed in Namuna Seal panchnama (Ex.P-12). It is further contended that Head Constable – Gulab Ram Mandavi (PW-7) had allegedly received seized contraband substance alongwith samples vide Ex.P-21, but he has admitted in paragraph 6 of his cross-examination that he was not incharge of Malkhana of Police Station – Pushpal. Malkhana register has also not been proved by the prosecution to demonstrate the fact that when and in which circumstances, alleged contraband substance was kept in Malkhana and when it was taken out for sending to FSL. He further submits that compliance of provisions contained in Section 57 of the NDPS Act has also not been proved, which has also been admitted by Praveen Minj, Investigating Officer (PW-8) in paragraph 30 of his cross-examination. Investigating Officer (PW-8) himself has admitted in paragraph 31 of his cross-examination that after depositing alleged contraband substance in Malkhana on 21.06.2019, he had not taken out the same from it. Thus, since the sanctity of collection of the sample has not been proved by the prosecution, it has also not been proved as to whether it was kept in a sealed condition, whether it was deposited in Malkhana and if it is so, then when it was taken out from Malkhana, and FSL report has not been proved. Therefore, the FSL report (Ex.P-33) declaring the alleged sample to be ganja is useless and cannot be relied upon, but learned Special Court without considering aforesaid fact, has mechanically convicted the appellant, which is perverse and illegal. Hence, it is prayed that the appeal be allowed that appellant may be acquitted of the alleged charge. 8. Per contra, learned counsel for the State/respondent would submit that though Sample panchnama (Ex.P-14) does not contain signature of officer, who prepared the same, but Investigating Officer (PW-8) has stated in his deposition that sample was collected and it was kept in sealed condition. He further submits that the impugned judgment passed by Special Court is based on well appreciation of evidence available on record, which does not call for any interference in the instant appeal. 9. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record of court below at length. 10. He further submits that the impugned judgment passed by Special Court is based on well appreciation of evidence available on record, which does not call for any interference in the instant appeal. 9. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record of court below at length. 10. In the present case, Inspector Praveen Minj (PW-8) is the investigating Officer, who conducted the raid and all the proceedings. Constable Munna Netam (PW-2), Head Constable Prakash Kumar Verma (PW-6) and Head Constable Gulab Ram Mandavi (PW-7) were his accompanying police personals. 11. Investigating Officer (PW-8) has stated in his deposition that upon being received secret information pertaining to transportation of ganja in a truck from the informer, he reduced the same in writing, prepared Mukhbir panchnama (Ex-P/2) and sent the information to Sub Divisional Officer (P), Sukma in this regard. The aforesaid information was served to SDO (P), Sukma by him vide lettera Ex-P/22 & P/23, which were served in the Office of SDO (P) through Constable Ayal Ram Mourya (PW-5), who has also supported aforesaid facts. Thus, compliance of provisions of Section 42(1) and 42(2) of the NDPS Act, has been proved by the prosecution. 12. It is the case of the prosecution that 28 plastic bags/packets, each containing different quantity of alleged contraband substance, total weight of 1215.295 Kg were recovered from the truck, bearing registration No. MP 09 HG 5134 driven by the appellant. The Investigating Officer (PW-8) has stated in his deposition that after recovery of alleged contraband substance vide recovery memo (Ex-P/8), on being identification, it was found to be Ganja. But it has not been mentioned in Madakdravya pahchan Panchnama (Ex-P/9) as to whether, for identifying the alleged substance, all the plastic bags/packets were opened or not. PW-8 has also not stated anything on this count in his deposition, rather in a mechanical manner, he has only marked/exhibited documents Ex-P/4 to Ex-P/11. 13. Sanjay Sethia (PW-1) and Daud Kashyap (PW-4) are said to be search and seizure witnesses, Mongraj Baghel (PW-3) is weigher. But they have not supported the case of the prosecution, except their signature in the documents. They have completely turned hostile. Therefore, whole case of the prosecution rests on the evidence of departmental witnesses. 14. 13. Sanjay Sethia (PW-1) and Daud Kashyap (PW-4) are said to be search and seizure witnesses, Mongraj Baghel (PW-3) is weigher. But they have not supported the case of the prosecution, except their signature in the documents. They have completely turned hostile. Therefore, whole case of the prosecution rests on the evidence of departmental witnesses. 14. Perusal of the deposition of the IO (PW-8) shows that his statement has been recorded in mechanical manner, detailed facts pertaining to the raid, search and seizure has not been made by him. Rather, he has only exhibited documents, whereas when the independent witnesses have not supported the case of the prosecution, then, he ought to have stated detailed facts relating to the raid, search and seizure, absence thereof damages the case of the prosecution. 15. Head Constable Prakash Kumar Verma (PW-6) has stated detailed facts than IO (PW-8). PW-6 has stated in his deposition that upon receiving secret information from the informer, PW-8, who was the incharge of the Police Station, he along accompanying police personals reached at Gumma Main road for conducting MCP and while checking the vehicle, the truck driven by the appellant was stopped and on being search, it was found that separate box was prepared in the Dalla of the truck in which 28 plastic bags/packets containing ganja were kept, which were recovered and seized from the appellant and on being weighed, total weight was found to be 2115.295Kg (It was wrongly mentioned, as per case of the prosecution its total weight was 1215.295 kg). In the cross-examination also he has stated that alleged contraband substance was kept in a box/cabin specially prepared in the Dalla. Aforesaid facts somehow has also been supported by HC PW-7, though Constable Muna Netam (PW-2) has supported in his examination-in- chief the raid conducted by PW-8, but has denied various facts in his cross- examination. 16. Ex-P/11 is Tol panchnama of contraband substance prepared at 16.50 hours. Ex-P/13 is Samras panchnama prepared at 17.20 hours Ex-P/14 is Sample panchnama prepared at 17.40 hours. As per aforesaid documents, on being weighed, alleged contraband substance ganja kept in 28 plastic bags/packets, its total weight was found 1215.295 kg. 16. Ex-P/11 is Tol panchnama of contraband substance prepared at 16.50 hours. Ex-P/13 is Samras panchnama prepared at 17.20 hours Ex-P/14 is Sample panchnama prepared at 17.40 hours. As per aforesaid documents, on being weighed, alleged contraband substance ganja kept in 28 plastic bags/packets, its total weight was found 1215.295 kg. It also revealed from aforesaid documents that all the contraband substances of 28 plastic bags/packets were homogenized thereafter 2-2 samples each containing 50-50 gm, total 56 packets of samples were prepared, but at what time those samples were prepared, is highly contradictory, as in all the three documents i.e. Ex-P/11, P/13 and P/14 , preparation 56 samples has been mentioned. Therefore, facts remains as to exactly when or at what time those samples were prepared. 17 . As per Ex-P/13 Samras panchnama, all the contraband substance of 28 plastic bags/packets were homogenized, thereafter 56 samples, each containing 50 gm total 2.800 kg were prepared. But it has not been mentioned that after homogenization and collecting samples, remaining contraband substance were kept in which vessel or packets or plastic bags etc. Ex-P/12 is said to be Namuna seal panchnama, which was affixed in the sample packets, but sample of that seal has not been affixed in Ex-P/12. 18. IO (PW-8) has stated in his deposition para 10 that Ex-P/21 is receipt of the handing over the seized articles. HC PW-7 has stated in his deposition that he had received contraband substance and other articles to keep it in the safe custody in Malkhana. In this regard he gave receipt Ex-P/21. Both the witnesses have admitted their signature in the aforesaid documents. But HC (PW-7) has admitted in his cross-examination that he was not incharge of the Malkhana on the date of incident. Though he has stated in his cross-examination para 7 that he received 1215.295 kg ganja including 56 sample packets to be kept in the Malkhana, but neither he has stated in his deposition that after receiving it he had kept alleged contraband substance in the Malkhana. Malkhana register has also not been proved by the prosecution in this regard. Though he has stated in his cross-examination para 7 that he received 1215.295 kg ganja including 56 sample packets to be kept in the Malkhana, but neither he has stated in his deposition that after receiving it he had kept alleged contraband substance in the Malkhana. Malkhana register has also not been proved by the prosecution in this regard. On the other hand, PW-8 has stated in his cross-examination para 30 that seized contraband substance and other articles were kept by himself on 21.6.2019 in the Malkhana whereas, in the cross-examination in para 31 he has admitted that after depositing seized materials in the Malkhana on 26.6.2019, those material were not taken out from the Malkhana. HC PW-7 has also admitted in his cross-examination para 8 that the alleged samples of contraband substance ganja was not taken out in front of him or under his knowledge to send it to FSL. Then question arose that which samples were sent to FSL on 24.6.2019 . 19. Aforesaid contradictory statement of PW-7 and PW-8, particularly in absence of proof of Malkhana register, creates doubt as to whether alleged seized contraband substance after its seizure on 21.02.2019 were kept in Malkhana or not and if it was kept in Malkhana, then whether it was taken out from the Malkhana for sending it for chemical examination or not. Though in the FSL report (Ex-P/33), material sent in the sample packets 01-1 to 28-1 have been reported to be ganja, but since the prosecution has failed to prove beyond reasonable doubt trustworthiness of the collection of the alleged 28 samples, keeping it in safe custody of Malkhana till sending the same to the FSL on 24.6.2019, therefore, neither it can be held beyond reasonable doubt that the alleged contraband substance recovered and seized from the possession of the appellant from the truck was ganja nor FSL report Ex-P/33 can be connected with alleged contraband substance seized from the custody of the appellant. 20. In the case of Bharat Aambale Vs. The State of Chhattisgarh , 2025 (8) SCC 452 their Lordship of the Supreme Court has held that mere delay or non- compliance of the provisions contained in Sections 42 to 57, would not vitiate the entire case of prosecution. Relevant paragraph 26 is reproduced below :- “26. 20. In the case of Bharat Aambale Vs. The State of Chhattisgarh , 2025 (8) SCC 452 their Lordship of the Supreme Court has held that mere delay or non- compliance of the provisions contained in Sections 42 to 57, would not vitiate the entire case of prosecution. Relevant paragraph 26 is reproduced below :- “26. Although it is true that Chapter V of the NDPS Act more particularly, Section (s) 42 to 57 form a unique scheme of provisions that prescribe several procedural safeguards and conditions that have to be mandatorily adhered to, right from the process of conducting search till the seizure and recovery of the contraband, its safe-keep and handling, yet it does not mean that a mere delay or non-compliance of the same, would result in the trial being vitiated, or the entire case of the prosecution crumbling.” 21. In instant case, not only non-compliance of provisions of Section 57 of the NDPS Act is found, rather sanctity of collection of sample right from the seizure of alleged contraband substance, till sending the sample to FSL has also not been proved beyond reasonable doubt, therefore, non- compliance of provisions contained in Section 57 also heavily goes against the trustworthiness of the case of the prosecution. 22. In the case of Mohammad Khalid and another Vs. State of Telangana , 2024 (5) SCC 393 , finding various discrepancies regarding actual weight of seized Ganja, changing the original 3 packets from 7 new bags of Ganja, the property deposited in the court was not having any official seal, provisions of Section 52-A of NDPS Act was also not complied with. Therefore, Hon’ble Supreme Court held that, these glaring loop holes in the prosecution case give rise to an inescapable inference that the prosecution has miserably failed to prove the required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of seizure till the same reached the FSL. 23. In the case of Surepalli Srinivas Vs. 23. In the case of Surepalli Srinivas Vs. State of Andhra Pradesh (Now State of Telangana) (2025 SCC OnLine 683), the prosecution failed to prove that, seized contraband was properly sealed, it was produced before the trial Court belatedly and seized contraband was kept in separate room of P.W. 3 for 15 days, having considered aforesaid facts, Hon’ble Supreme Court allowed the appeal and extended benefit of doubt to the appellants by setting aside judgment of conviction of appellant. 24 . As has been discussed in the preceding paragraph, in the case in hand, there are number of material discrepancies and lacuna in the physical evidence, as at what time the alleged samples were collected is contradictory, after collecting samples those were kept in the Malkhana or not, if those samples were kept in the Malkhana, then PW-7 & PW-8 themselves have stated that those samples were not taken out from Malkhana to send the same to the FSL. If those samples were not kept in Malkhana, then where it were kept from 21.6.2019 to 24.6.2019. Malkhana register has also not been proved by the prosecution. Therefore, FSL report remains to be waste paper for the instant case. Hence, conviction of the appellant/accused, as recorded by learned Special Court is found to be illegal on the face of the record as it suffers from grave perversity. 25. It is also apt to be noted here that there are various discrepancies in the investigation of the case as also recording of the statement of the prosecution witnesses by the Special Public Prosecutor/ Prosecutor, who represented the State. 26. Resultantly, the impugned judgment passed by the Special Judge, convicting and sentencing the appellant for the offence under Section 20(b)(ii)(C) of the NDPS Act is quashed/set aside. The appellant is acquitted of the said charge levelled against him. 27. The appellant is in jail, he be set free forthwith, if not warranted in any other case, subject to compliance of Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023 before concerned Special Court in its satisfaction. 28 . Record of the concerned Special Court along with a copy of this judgment be sent back forthwith for compliance and necessary action.