The appellants were tried for offence punishable under Section 20(b)(ii)(c) read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

2. The allegation is that they were found in possession of Ganja weighing 51 kgs., and 700 grams without any permit, licence etc.

3. The prosecution examined in all six witnesses to prove the charge.

4. Learned Special Judge of NDPS, Court, Nagpur has ordered conviction under Section 20(b)(ii)(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and directed sentence of ten years' Rigorous Imprisonment, fine of Rs.1 ,00,000-00, default sentence for one year, and permitted set off.

5. Heard learned Advocate Mr. R.M. Daga for the appellants and learned APP Mrs. Khade for the respondent.

6. Learned Advocate for the appellants has argued the appeal on sole ground that only samples of Ganja sent for analysis were produced and the entire Muddemal, which was seized by the police, was not produced.

7. Admittedly, the Memorandum, as contemplated by Section 52-A of the said Act was not prepared, and in absence thereof, the prosecution was not exempted from producing the material. On this sole ground, according to learned Advocate Mr. Daga, the conviction was vitiated and was liable to be set aside.

8. Learned Advocate Mr. Daga has placed reliance on following reported judgments to substantiate his contention:-

[l] Jitendra & another Vs. State of M.P. [(2004)10 SCC 562),

[2J Vinod @ Vinya @ Bhokanya son of Patiram Gaidhane & anr. Vs. State of Maharashtra [2006 ALL MR (Cri) 53], and

[3} Mohan son of Ganesh Kristaiyya & anr. Vs. State of Maharashtra [2007 ALL MR (Cri) 367].

9. It is seen from para 6 of the Judgment of Bon'ble Supreme Court in case of Jitendra Vs. State of M.P. [cited supra at Sr. No.1} that production of contraband •material before the Court is mandatory. Their Lordships of Supreme Court held in the said Judgment as follows:-

"6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of Charas and Ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act."

10. Two other judgments of this Court relied upon by the appellants are based on earlier various judgments of this Court and the case of Jitendra & another Vs. State of M.P. referred to and quoted above.

11. In these premises, it is liable to be held that the Judgment and order of conviction has been rendered in total disregard of Sections 52 and 51-A of the NDPS Act. Thus, the judgment and order of conviction is liable to be set aside.

12. At this stage, a question arose as to a peculiar situation, namely, apart from the appellants, one more accused, i.e., Accused No.1 - Rarndayal son of Himmat Rajak, was also tried and convicted. The said convict had not preferred an appeal.

13. The learned Advocate for the appellants was called upon to address the Court on this issue.

14. It is seen from following three reported Judgments:-

[l] Pawan Kumar Vs. State of Haryana [(2003)11 SCC 241],

[2J Vajrapu Sambayya Naidu & ors. Vs. State of A.P. & ors. [2004 see (Cri.) 1768), and

2008 ALL MR (Cri) - Sept.

[3] Anjlus Dungdung Vs. State of Jharkhand [2004(4) Crimes 136 (SC)] : [2004 ALL MR (Cri) 3448 (S.C.)], that a similar treatment is required to be given to all the accused. If a judgment convicting the accused persons is unsustainable, there cannot be a ground as to why a person, who has not preferred appeal, should suffer loss of liberties, because he has not preferred app