IMPORTANT POINT
Failure to comply with mandatory procedures under the NDPS Act vitiates conviction, necessitating primary evidence for a valid trial.

JUDGMENT :

1. Challenge in this criminal appeal is to impugned judgment of conviction and sentence dated 17.09.2018 passed by learned Special Judge, (NDPS Act), Bilaspur, (CG) in Special Criminal Case (NDPS Act) No.03/2017, whereby the appellant stands convicted and sentence as under:

2. Case of the prosecution, in brief, is that on 04.08.2016 the Police of Police Station -Pendra received information that some persons are carrying illegal contraband (ganja) and are going towards bhadi on white Xylo vehicle without number for selling it. On receiving said information, they intercepted the said vehicle on which appellant alongwith two other persons were travelling. During course of search, 200 kg illicit contraband (ganja) was seized from the said vehicle. On the basis of seizure, appellant was arrested. After completion of other necessary formalities, the police returned to the Police Station and deposited the seized contraband in the Malkhana and lodged FIR against the appellant. Statements of witnesses were recorded under Section 161 of Cr.P.C.

3. After completion of investigation, charge-sheet/challan was filed against the appellant for offence punishable under Section Section 20(B) of the NDPS Act.

4. In order to prove guilt of appellant, prosecution examined total 13 witnesses and their statements were recorded. However, no defence witnesses was examined. Statement of appellant (accused) was recorded under Section 313 CrPC in which he pleaded innocence and false implication.

5. After completion of trial, trial Court convicted and sentenced the appellant as mentioned in paragraph -1 of this judgment. Hence, this appeal.

6. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record, hence liable to be set aside. Appellant is in jail since 05.08.2016 and thereby has already served more than 08 years of jail jail sentence. Seizure witness have not support the case of prosecution and turned hostile. Apart from this, general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. Learned Counsel further submits that the Investigating Officer received prior information but she has not complied with provision of Section 42(2) of the NDPS Act. There are major contradictions and omissions in her statement, which cannot be relied upon. Trial Court has wrongly appreciated that the investigation has been done properly and mandatory provisions of the NDPS Act have been complied with. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. There is serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. The learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provides for the procedure and manner of seizing, preparing inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged in the NDPS Act. In the present case, it is evident from evidence of Investigating Officer that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act