IMPORTANT POINT
Bulk remaining contraband cannot be disposed/destroyed without order of competent Magistrate.

JUDGMENT :

N.V. RAMANA, J.

1. At the outset, it may be noted that Criminal Appeal No. 742 of 2011 has already been dismissed as abated by this Court's order dated 11th April, 2016 passed by the Hon'ble Judge in Chamber. We are now called upon to deal with Criminal Appeal No. 741 of 2011 only which is directed against the Judgment and Order dated 23rd February, 2010 passed by the High Court of Madhya Pradesh, Bench at Indore in Criminal Appeal No. 621 of 2008. By the said judgment, the High Court allowed the appeal of the respondent herein and acquitted him of the charges leveled against him under Section 8/18 (B) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').

2. Brief history of the case as emanated from the prosecution story is that upon receiving information from an informant on 11th May, 2004 PW7-P.K. Sinha (Inspector) laid a trap and intercepted three accused persons including the respondent herein at Bhilkhanda Square and found 7.2 kg of contraband material (opium) in the possession of the accused-respondent. Two samples were then prepared weighing 30 grams each and marked as 'A1' and 'A2' and the remaining material was sealed and marked as 'A'. The accused confessed to have committed the offence and after recording his statement a report has been submitted to the Superintendent who appointed Harvindar Singh (PW 6) as Investigating Officer. After depositing the seized contraband at Malkhana, the samples were sent for chemical examination and a complaint under Sections 8/18 and 29 of the Act against the accused has been filed. Taking cognizance of the Complaint, the Special Judge, Neemuch by his judgment dated 21st April, 2008 convicted the accused and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-.

3. Agitating the judgment of the learned trial Judge, the accused filed appeal before the High Court. By the impugned judgment, the High Court observed that the bulk quantity of the seized case property was not disposed of by the Executive Magistrate, the statement of the accused under Section 67 of the Act was recorded when the accused was in police custody after arrest and the signature of the accused were falsely obtained on blank papers and hence his statement cannot be taken as that of voluntarily made under the provisions of the Act. Therefore, the High Court allowed the appeal of the accused and acquitted him of the charges. The aggrieved State is in appeal before us.

4. We have heard learned senior counsel appearing for the State and learned counsel for the accused-appellant as well, and carefully gone through the material on record.

5. Learned senior counsel for the State centered his arguments on the provisions of Section 52A of the Act to submit that on 14th October, 2004 after submitting the seized case contraband property to the Executive Magistrate, it was found that two polythene packets contained 4 kg and 3.2 kg of opium respectively and from them 30-30 grams each of two packets have been prepared and marked as A3 and A4 and sealed. Before opening the seized stuff and after preparing the samples, photographs were taken and the Executive Magistrate has duly signed with seal on all the sealed packets and samples. The case property was accordingly destroyed under the provisions of the Act and the inventory and photographs were submitted during trial which form primary evidence under the Act, but the High Court failed to consider them to be under the provisions of law. Learned senior counsel further submitted that the High Court committed serious error by simply believing the testimony of the accused that his signatures were obtained on blank papers forcibly, though there was enormous evidence in support of the prosecution case.

6. Learned counsel for the accused, on the other hand, supported the impugned judgment and submitted that the High Court considered all aspects of the case in a pru