MANGILALversusTHE STATE OF MADHYA PRADESH

              [2023] 10 S.C.R. 517 : 2023 INSC 634                        517


                            MANGILAL                                      A
                                  v.
              THE STATE OF MADHYA PRADESH
                 (Criminal Appeal No. 1651 of 2023)
                           JULY 12, 2023                                  B
        [A. S. BOPANNA AND M. M. SUNDRESH, JJ.]
       Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A
– Non-compliance of – Held: – In the present case, search warrant
under Exhibit P-4 acknowledged the fact that procedure
                                                                          C
contemplated under the NDPS Act was not followed – Also, one of
the witnesses to the seizure memo was not examined while the other
turned hostile – Both the witnesses to the arrest memo were not
examined – The record also indicates that an order was passed by
the trial Judge permitting the prosecution to keep the seized materials
within the police station, to be produced at a later point of time –      D
This itself is a sufficient indication that the mandate of s.52A was
not followed – There is no explanation either for non-production of
the seized materials or the manner in which they are disposed of –
No order passed by the Magistrate allowing the application, if any,
filed u/s.52A – There are too many material irregularities creating
                                                                          E
serious doubt on the very case of the prosecution – Hence, appellant
acquitted by rendering benefit of doubt – Impugned judgments set
aside.
      Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A
– Scope and objective of – Held: Sub-section (1) of s.52A facilitates
                                                                          F
the Central Government a mode to be prescribed to dispose of the
seized narcotic substance – Sub-section (2) thereof mandates a
competent officer to prepare an inventory of such narcotic drugs
with adequate particulars, followed through an appropriate
application to the Magistrate for the purpose of certifying the
correctness of inventory, taking relevant photographs in his presence     G
and certifying them as true or taking drawal of samples in his
presence with due certification – The objective is to have an element
of supervision by the magistrate over the disposal of seized
contraband as it constitutes a primary evidence – Such inventories,
photographs and list of samples drawn with certification by
                                                                          H
                                 517
518            SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A     Magistrates constitute as a primary evidence – Therefore, when
      there is non-compliance of s.52A, where a certification of a magistrate
      is lacking any inventory, photograph or list of samples would not
      constitute primary evidence would not constitute primary evidence
      – s.52A is a mandatory rule of evidence which requires the physical
      presence of a Magistrate followed by an order facilitating his
B
      approval either for certifying an inventory or for a photograph
      taken apart from list of samples drawn – Evidence.
             Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A
      – Evidence Act, 1872 – s.114(g) – Held: Before any proposed
      disposal/destruction mandate of s.52A, NPDS Act requires to be
C     duly complied with starting with an application to that effect – A
      Court should be satisfied with such compliance while deciding the
      case – The onus is entirely on the prosecution in a given case to
      satisfy the Court when such an issue arises for consideration –
      Production of seized material is a factor to establish seizure followed
D     by recovery – The provisions of the NDPS Act are both stringent
      and rigorous and therefore the burden heavily lies on the prosecution
      – Non-production of a physical evidence would lead to a negative
      inference within the meaning of s.114(g), Evidence Act – The
      procedure contemplated through the notification has an element of
      fair play such as the deposit of the seal, numbering the containers
E     in seriatim wise and keeping them in lots preceded by compliance
      of the procedure for drawing samples.
            Noor Aga v. State of Punjab (2008) 16 SCC 417 : [2008]
            10 SCR 379; Union of India v. Mohanlal (2016) 3 SCC
            379 : [2016] 1 SCR 651; Jitendra v. State of M.P., (2004)
F           10 SCC 562 : [2003] 3 Suppl. SCR 918; Union of India
            v. Jarooparam (2018) 4 SCC 334 : [2018] 1 SCR 618
            – relied on.
                             Case Law Reference

G     [2008] 10 SCR 379               relied on                Para 8
      [2016] 1 SCR 651                relied on                Para 9
      [2003] 3 Suppl. SCR 918         relied on                Para 11
      [2018] 1 SCR 618                relied on                Para 12
H
      MANGILAL v. THE STATE OF MADHYA PRADESH                               519


     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                      A
No.1651 of 2023.
     From the Judgment and Order dated 14.03.2019 of the High Court
of Madhya Pradesh at Indore in CRLA No.6163 of 2017.
       Rakesh Dahiya, Aditya Dahiya, Sunil Verma, Kapil Dahiya, Advs.
for the Appellant.                                                          B

       Nachiketa Joshi, AAG, Sunny Choudhary, Ms. Arushi Singh, Advs.
for the Respondent.
      The Judgment of the Court was delivered by
      M. M. SUNDRESH, J.                                                    C
      1. The appellant stood charged and convicted under Section 8(b)
read with Section 15(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). The
Additional Sessions Judge, Special Court NDPS, Jaora, District Ratlam,
Madhya Pradesh, convicted the appellant and sentenced him to undergo        D
rigorous imprisonment for 10 years. It was accordingly confirmed by
the High Court of Madhya Pradesh. Aggrieved, the present appeal is
      THE CASE OF THE PROSECUTION IN A NUTSHELL:
       2. The Assistant Sub Inspector, H.S. Sengar, posted at Police
Station Kalukheda received an information through a telephonic message      E
on 20.05.2010 that the appellant and co-accused Mathuralal against whom
the trial stood abated due to his death were in the process of supplying
narcotic substance in the nature of poppy straw. Upon registering the
information in the Daily Diary and without wasting time on the procedural
compliance, the police force stopped a tractor in which bags containing     F
the contraband were seized. The accused were told about the search
upon due compliance of Section 50 of the NDPS Act. A panchnama
was written at the place of occurrence. Samples were taken while the
accused were informed about the reason for the arrest. A First
Information Report was registered under Section 8(b) read with Section
15(c), Sections 25 and 29 of the NDPS Act in Crime No. 53/10. A final       G
report was filed before the jurisdictional Court on 13.09.2010. Before
the trial court 16 prosecution witnesses have been shown in the list of
witnesses to have been examined by the prosecution while marking 48
exhibits.
                                                                            H
520            SUPREME COURT REPORTS                            [2023] 10 S.C.R.


A           3. Of these witnesses, the public witnesses, namely, P.W.2, P.W.3,
      P.W.4 and P.W.6 turned hostile. Among them P.W.2 & P.W.6 were panch
      witnesses. These two witnesses signed majority of the exhibits. P.W.5
      though not declared hostile has deposed in clear term that the narcotic
      substance was in existence at the police station even before the alleged
      occurrence. This part of the testimony has not been questioned by the
B
      prosecution. Both the Courts placed reliance upon the FSL Report along
      with the police witnesses in rendering conviction. To be noted, two of
      the witnesses bearing testimony to the arrest memo have not been
      examined by the prosecution for the reasons best known to it.
            SCOPE OF SECTION 52A OF THE NDPS ACT, 1985:
C
            Section 52A of the NDPS Act
            “52A. Disposal of seized narcotic drugs and psychotropic
            substances.— (1) The Central Government may, having regard
            to the hazardous nature, vulnerability to theft, substitution, constraint
D           of proper storage space or any other relevant consideration, in
            respect of any narcotic drugs, psychotropic substances, controlled
            substances or conveyances, by notification in the Official Gazette,
            specify such narcotic drugs, psychotropic substances, controlled
            substances or conveyance or class of narcotic drugs, class of
            psychotropic substances, class of controlled substances or
E           conveyances, which shall, as soon as may be after their seizure,
            be disposed of by such officer and in such manner as that
            Government may, from time to time, determine after following
            the procedure hereinafter specified.
            (2) Where any narcotic drugs, psychotropic substances, controlled
F           substances or conveyances has been seized and forwarded to the
            officer-in-charge of the nearest police station or to the officer
            empowered under Section 53, the officer referred to in sub-section
            (1) shall prepare an inventory of such narcotic drugs, psychotropic
            substances, controlled substances or conveyances containing such
G           details relating to their description, quality, quantity, mode of
            packing, marks, numbers or such other identifying particulars of
            the narcotic drugs, psychotropic substances, controlled substances
            or conveyances or the packing in which they are packed, country
            of origin and other particulars as the officer referred to in sub-
            section (1) may consider relevant to the identity of the narcotic
H
      MANGILAL v. THE STATE OF MADHYA PRADESH                                521
                 [M. M. SUNDRESH, J.]

      drugs, psychotropic substances, controlled substances or               A
      conveyances in any proceedings under this Act and make an
      application, to any Magistrate for the purpose of—
      (a)    certifying the correctness of the inventory so prepared; or
      (b)    taking, in the presence of such Magistrate, photographs of
             such drugs, substances or conveyances and certifying such       B
             photographs as true; or
      (c)    allowing to draw representative samples of such drugs or
             substances, in the presence of such Magistrate and
             certifying the correctness of any list of samples so drawn.
                                                                             C
      (3) Where an application is made under sub-section (2), the
      Magistrate shall, as soon as may be, allow the application.
      (4) Notwithstanding anything contained in the Indian Evidence
      Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2
      of 1974), every court trying an offence under this Act, shall treat    D
      the inventory, the photographs of narcotic drugs, psychotropic
      substances, controlled substances or conveyances and any list of
      samples drawn under sub-section (2) and certified by the
      Magistrate, as primary evidence in respect of such offence.”
      4. Sub-section (1) of Section 52A of the NDPS Act facilitates the
                                                                             E
Central Government a mode to be prescribed to dispose of the seized
narcotic substance. The idea is to create a clear mechanism for such
disposal both for the purpose of dealing with the particular case and to
safeguard the contraband being used for any illegal purpose thereafter.
      5. Sub-section (2) of Section 52A of the NDPS Act mandates a
                                                                             F
competent officer to prepare an inventory of such narcotic drugs with
adequate particulars. This has to be followed through an appropriate
application to the Magistrate concerned for the purpose of certifying the
correctness of inventory, taking relevant photographs in his presence
and certifying them as true or taking drawal of samples in his presence
with due certification. Such an application can be filed for anyone of the   G
aforesaid three purposes. The objective behind this provision is to have
an element of supervision by the magistrate over the disposal of seized
contraband. Such inventories, photographs and list of samples drawn
with certification by Magistrates would constitute as a primary evidence.
Therefore, when there is non-compliance of Section 52A of the NDPS
                                                                             H
522                SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A     Act, where a certification of a magistrate is lacking any inventory,
      photograph or list of samples would not constitute primary evidence.
             6. The obvious reason behind this provision is to inject fair play in
      the process of investigation. Section 52A of the NDPS Act is a mandatory
      rule of evidence which requires the physical presence of a Magistrate
B     followed by an order facilitating his approval either for certifying an
      inventory or for a photograph taken apart from list of samples drawn. In
      due compliance of Section 52A(1) of the NDPS Act the Ministry of
      Finance (Department of Revenue) issued a Notification No. G.S.R.
      339(E) dated 10.05.2007 which furnishes an exhaustive manner and
      mode of disposal of drugs ending with a certificate of destruction:
C
            “4. Manner of disposal
            1)       Where any narcotic drug or psychotropic substances has
                     been seized and forwarded to the officer-in-charge of the
                     nearest police station or to the officer empowered under
D                    section 53, of the Act, or if it is seized by such an officer
                     himself, he shall prepare an inventory of such narcotic drugs
                     or psychotropic substances as per Annexure 1 to this
                     notification and apply to any Magistrate under sub-section
                     (2) of section 52A as per Annexure 2 to this notification.

E           2)       After the Magistrate allows the application under sub-
                     section (3) of section 52A, the officer mentioned in clause
                     (1) above shall preserve the certified inventory, photographs
                     and samples drawn in the presence of the Magistrate as
                     primary evidence for the case and submit details of the
                     drug consignments to the Chairman of the Drug Disposal
F                    Committee for a decision by the committee on the disposal.
                     The officer shall send a copy of the details along with the
                     drug consignments to the officer-in-charge of the godown.
                                XXX           XXX         XXX
            4.2 Mode of disposal of drugs.
G
            (i)      Opium, morphine, codeine and thebaine shall be disposed
                     of by transferring to the Government Opium and Alkaloid
                     Works under the Chief Controller of Factories.
            (ii)     In case of drugs other than the drugs mentioned in clause
H                    (i), the Chief Controller of Factories shall be intimated by
      MANGILAL v. THE STATE OF MADHYA PRADESH                                    523
                 [M. M. SUNDRESH, J.]

              the fastest means of communication available, details of           A
              drug consignments that are ready for disposal.
      (iii)   The Chief Controller of Factories shall indicate within 15
              days of the date of receipt of the communication, the
              quantities of drugs, if any, that are required by him to supply
              as samples under Rule 67B.                                         B
      (iv)    Such quantities of drugs, if any, as required by the Chief
              Controller of Factories under clause (iii) shall be transferred
              to him and the remaining quantities of drugs shall be
              destroyed as per the procedure outlined in para 4.1.2.
      (v)     Destruction shall be by incineration in incinerators fitted        C
              with appropriate air pollution control devices, which comply
              with emission standards. Such incineration may only be done
              in places where adequate facilities and security
              arrangements exist. In order to ensure that such incineration
              may not be a health hazard or polluting, consent of the State      D
              Pollution Control Board or Pollution Control Committee, as
              the case may be, should be obtained. Destruction shall be
              carried out at the presence of the Members of the Drug
              Disposal Committee.
                         XXX            XXX         XXX                          E
      4.4 Certificate of destruction.
      A certificate of destruction (in triplicate) containing all the relevant
      data like godown entry number, gross and net weight of the drugs
      seized, etc., shall be prepared and signed by the chairman and
      members of the Drug Disposal Committee as per format at                    F
      Annexure 3. The original copy shall be pasted in the godown
      register after making necessary entries to this effect, the duplicate
      to be retained in the seizure case file and the triplicate copy will
      be kept by the Drug Disposal Committee. Details of disposal of
      drugs shall be reported to the Narcotics Control Bureau in the
                                                                                 G
      Monthly Master Reports.”
      7. To be noted, the aforesaid notification was in existence at the
time of the commission of the offence alleged in the case on hand, stood
repealed with effect from 23.12.2022 vide Notification No. G.S.R.899(E).
In any case a notification issued in derogation of the powers conferred
                                                                                 H
524            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A     under sub-section (1) of Section 52A of the NDPS Act can never
      contradict the main provision, particularly sub-Section (2). However, any
      guideline issued by way of a notification in consonance with Section
      52A of the NDPS Act has to be followed mandatorily.
             8. Before any proposed disposal/destruction mandate of Section
B     52A of the NPDS Act requires to be duly complied with starting with an
      application to that effect. A Court should be satisfied with such
      compliance while deciding the case. The onus is entirely on the
      prosecution in a given case to satisfy the Court when such an issue
      arises for consideration. Production of seized material is a factor to
      establish seizure followed by recovery. One has to remember that the
C     provisions of the NDPS Act are both stringent and rigorous and therefore
      the burden heavily lies on the prosecution. Non-production of a physical
      evidence would lead to a negative inference within the meaning of Section
      114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the
      Evidence Act). The procedure contemplated through the notification has
D     an element of fair play such as the deposit of the seal, numbering the
      containers in seriatim wise and keeping them in lots preceded by
      compliance of the procedure for drawing samples. The afore-stated
      principles of law are dealt with in extenso in Noor Aga v. State of
      Punjab, (2008) 16 SCC 417:
E           “89. Guidelines issued should not only be substantially complied
            with, but also in a case involving penal proceedings, vis-à-vis a
            departmental proceeding, rigours of such guidelines may be insisted
            upon. Another important factor which must be borne in mind is as
            to whether such directions have been issued in terms of the
            provisions of the statute or not. When directions are issued by an
F           authority having the legal sanction granted therefor, it becomes
            obligatory on the part of the subordinate authorities to comply
            therewith.
            90. Recently, this Court in State of Kerala v. Kurian Abraham
            (P) Ltd. [(2008) 3 SCC 582] , following the earlier decision of this
G           Court in Union of India v. Azadi Bachao Andolan [(2004) 10
            SCC 1] held that statutory instructions are mandatory in nature.
            91. The logical corollary of these discussions is that the guidelines
            such as those present in the Standing Order cannot be blatantly
            flouted and substantial compliance therewith must be insisted upon
H
MANGILAL v. THE STATE OF MADHYA PRADESH                                525
           [M. M. SUNDRESH, J.]

for so that sanctity of physical evidence in such cases remains        A
intact. Clearly, there has been no substantial compliance with these
guidelines by the investigating authority which leads to drawing of
an adverse inference against them to the effect that had such
evidence been produced, the same would have gone against the
prosecution.
                                                                       B
92. Omission on the part of the prosecution to produce evidence
in this behalf must be linked with a second important piece of
physical evidence that the bulk quantity of heroin allegedly
recovered indisputably has also not been produced in court. The
respondents contended that the same had been destroyed.
However, on what authority it was done is not clear. Law requires      C
that such an authority must flow from an order passed by the
Magistrate. Such an order whereupon reliance has been placed is
Exhibit PJ; on a bare perusal whereof, it is apparent that at no
point of time had any prayer been made for destruction of the
said goods or disposal thereof otherwise. What was necessary           D
was a certificate envisaged under Section 110(1-B) of the 1962
Act. An order was required to be passed under the aforementioned
provision providing for authentication, inventory, etc. The same
does not contain within its mandate any direction as regards
destruction.
                                                                       E
                 XXX            XXX         XXX
95. The High Court proceeded on the basis that non-production
of physical evidence is not fatal to the prosecution case but the
fact remains that a cumulative view with respect to the
discrepancies in physical evidence creates an overarching              F
inference which dents the credibility of the prosecution. Even for
the said purpose the retracted confession on the part of the accused
could not have been taken recourse to.
96. Last but not the least, physical evidence relating to three
samples taken from the bulk amount of heroin was also not              G
produced. Even if it is accepted for the sake of argument that the
bulk quantity was destroyed, the samples were essential to be
produced and proved as primary evidence for the purpose of
establishing the fact of recovery of heroin as envisaged under
Section 52-A of the Act.
                                                                       H
526            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A                             XXX           XXX         XXX
            100. Physical evidence of a case of this nature being the property
            of the court should have been treated to be sacrosanct. Non-
            production thereof would warrant drawing of a negative inference
            within the meaning of Section 114(g) of the Evidence Act. While
B           there are such a large number of discrepancies, if a cumulative
            effect thereto is taken into consideration on the basis whereof the
            permissive inference would be that serious doubts are created
            with respect to the prosecution’s endeavour to prove the fact of
            possession of contraband by the appellant. This aspect of the
            matter has been considered by this Court in Jitendra v. State of
C           M.P. [(2004) 10 SCC 562 : 2004 SCC (Cri) 2028] in the following
            terms: (SCC p. 565, para 6)
               “6. … 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
D              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 panchnama does not discharge the
E              heavy burden which lies on the prosecution, particularly where
               the offence is punishable with a stringent sentence as under
               the NDPS Act.””
             9. On the issue of seizure in the presence of Magistrate, we wish
      to place reliance upon the decision of this Court in Union of India v.
F     Mohanlal, (2016) 3 SCC 379:
            “16. Sub-section (3) of Section 52-A requires that the Magistrate
            shall as soon as may be allow the application. This implies that no
            sooner the seizure is effected and the contraband forwarded to
            the officer-in-charge of the police station or the officer empowered,
G           the officer concerned is in law duty-bound to approach the
            Magistrate for the purposes mentioned above including grant of
            permission to draw representative samples in his presence, which
            samples will then be enlisted and the correctness of the list of
            samples so drawn certified by the Magistrate. In other words, the
            process of drawing of samples has to be in the presence and
H
      MANGILAL v. THE STATE OF MADHYA PRADESH                                  527
                 [M. M. SUNDRESH, J.]

      under the supervision of the Magistrate and the entire exercise          A
      has to be certified by him to be correct.
      17. The question of drawing of samples at the time of seizure
      which, more often than not, takes place in the absence of the
      Magistrate does not in the above scheme of things arise. This is
      so especially when according to Section 52-A(4) of the Act,              B
      samples drawn and certified by the Magistrate in compliance with
      sub-sections (2) and (3) of Section 52-A above constitute primary
      evidence for the purpose of the trial. Suffice it to say that there is
      no provision in the Act that mandates taking of samples at the
      time of seizure. That is perhaps why none of the States claim to
      be taking samples at the time of seizure.                                C

      18. Be that as it may, a conflict between the statutory provision
      governing taking of samples and the Standing Order issued by the
      Central Government is evident when the two are placed in
      juxtaposition. There is no gainsaid that such a conflict shall have
      to be resolved in favour of the statute on first principles of           D
      interpretation but the continuance of the statutory notification in
      its present form is bound to create confusion in the minds of the
      authorities concerned instead of helping them in the discharge of
      their duties. The Central Government would, therefore, do well,
      to re- examine the matter and take suitable steps in the above           E
      direction.”
      FACTS AND DISCUSSION:
      10. We have heard the arguments of learned counsel for the
appellant and the learned counsel appearing for the State. Incidentally
we perused the entire records.                                                 F
      11. The memorandum of informer’s information dated 20.05.2010
exhibited under P-3 indicates signature of two witnesses, P.W.2 and
P.W.6, both of them turned hostile. Though they admitted their signature
it was clearly deposed that they were not present at the scene of
occurrence. In our considered view the Court below have wrongly                G
construed the evidence, in fact these two witnesses were party to most
of the exhibits running upto 13. Search warrant under Exhibit P-4
acknowledge the fact that procedure contemplated under the NDPS
Act has not been followed. As noted, one of the witnesses to the seizure
memo has not been examined while the other turned hostile. Both the
                                                                               H
528            SUPREME COURT REPORTS                        [2023] 10 S.C.R.


A     witnesses to the arrest memo have not been examined. On the issue of
      non-production of narcotic substance and panch witnesses turning hostile
      we wish to reiterate the decision of this Court in Jitendra v. State of
      M.P., (2004) 10 SCC 562:
            “5. The evidence to prove that charas and ganja were recovered
B           from the possession of the accused consisted of the evidence of
            the police officers and the panch witnesses. The panch witnesses
            turned hostile. Thus, we find that apart from the testimony of
            Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector
            D.J. Rai (PW 6), there is no independent witness as to the recovery
            of the drugs from the possession of the accused. The charas and
C           ganja alleged to have been seized from the possession of the
            accused were not even produced before the trial court, so as to
            connect them with the samples sent to the Forensic Science
            Laboratory. There is no material produced in the trial, apart from
            the interested testimony of the police officers, to show that the
D           charas and ganja were seized from the possession of the accused
            or that the samples sent to the Forensic Science Laboratory were
            taken from the drugs seized from the possession of the accused.
            Although the High Court noticed the fact that the charas and
            ganja alleged to have been seized from the custody of the accused
            had neither been produced in the court, nor marked as articles,
E           which ought to have been done, the High Court brushed aside the
            contention by observing that it would not vitiate the conviction as
            it had been proved that the samples were sent to the Chemical
            Examiner in a properly sealed condition and those were found to
            be charas and ganja. The High Court observed, “non-production
F           of these commodities before the court is not fatal to the
            prosecution. The defence also did not insist during the trial that
            these commodities should be produced”. The High Court relied
            on Section 465 CrPC to hold that non-production of the material
            object was a mere procedural irregularity and did not cause
            prejudice to the accused.
G
            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
H
       MANGILAL v. THE STATE OF MADHYA PRADESH                                   529
                  [M. M. SUNDRESH, J.]

       been the seized materials which ought to have been                        A
       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
       panchnama does not discharge the heavy burden which lies
       on the prosecution, particularly where the offence is
                                                                                 B
       punishable with a stringent sentence as under the NDPS
       Act. In this case, we notice that panchas have turned hostile
       so the panchnama is nothing but a document written by the
       police officer concerned. The suggestion made by the defence
       in the cross- examination is worthy of notice. It was suggested to
       the prosecution witnesses that the landlady of the house in collusion     C
       with the police had lodged a false case only for evicting the accused
       from the house in which they were living. Finally, we notice that
       the investigating officer was also not examined. Against this
       background, to say that, despite the panch witnesses having turned
       hostile, the non-examination of the investigating officer and non-
                                                                                 D
       production of the seized drugs, the conviction under the NDPS
       Act can still be sustained, is far-fetched.”
                                                        (emphasis supplied)
       12. We further find that memorandum under Section 27 of the
Act, as witnessed by the two witnesses, P.W.3 and P.W.4 would be of              E
no value in evidence as there is no discovery of new fact involved. Be
that as it may, these witnesses also turned hostile. The record would
also indicate that an order was passed by the trial Judge permitting the
prosecution to keep the seized materials within the police station, to be
produced at a later point of time. This itself is a sufficient indication that
the mandate of Section 52A has not been followed. There is no explanation        F
either for non-production of the seized materials or the manner in which
they are disposed of. No order passed by the Magistrate allowing the
application, if any, filed under Section 52A of the NDPS Act. P.W.10,
Executive Magistrate has deposed to the fact that he did not pass any
order for the disposal of the narcotics substance allegedly seized. Similarly,   G
P.W.12 who is In-charge of Malkhana also did not remember any such
order having been passed. On the issue of disposing narcotic substance
in derogation of the compliance contained in Section 52A of the NDPS
Act, this Court in Union of India v. Jarooparam, (2018) 4 SCC 334
has held as follows:
                                                                                 H
530      SUPREME COURT REPORTS                       [2023] 10 S.C.R.


A     “8. What transpires from the abovequoted paragraph is that after
      taking out two samples of 30 gm each, the Executive Magistrate
      returned the entire remaining seized property to the investigating
      officer PW 6. To further ascertain the same, we have also
      carefully perused the exact content of the proceedings dated 14-
      10-2004 (Annexure P-5) recorded by the Executive Magistrate,
B
      Singoli Tappa. The proceedings recorded as far as the respondent
      herein is concerned, read thus:
      Proceedings
      14-10-2004: Case submitted. Shri Harvinder Singh, Inspector
C     (Investigating Officer), Narcotics Bureau, Singoli has submitted
      three sealed packets of seized stuff in Crime No. 1 of 2004 under
      Sections 8/18 and 8/29 of the NDPS Act, 1985. These packets
      were marked A, B and C and the details are given as under:
      1-A: On the packet marked “A” it was indicated that packet
D     contains 7.200 kg opium seized from Jaroopram, s/o Ganga Ram
      Bishnoi. On opening the packet, transparent polythene bag was
      found, in which again two polythene packets were found. One
      polythene indicated 4.000 kg and the second one 3.200 kg opium,
      respectively. A composite sample of 30-30 gm each have been
      taken from the two packets and kept in a small plastic polythene
E     and marked A-3 and A-4 and sealed. The remaining seized stuff
      and samples sealed as usual are handed over to the presenting
      officer Shri Harvinder Singh, Inspector.
      9. From the above proceedings, it is crystal clear that the
      remaining seized stuff was not disposed of by the Executive
F     Magistrate. The contraband stuff as also the samples sealed
      as usual were handed over physically to the Investigating
      Officer Harvinder Singh (PW 6). Also the trial court in its
      judgment specifically passed instructions to preserve the
      seized property and record of the case in safe custody, as
G     the co-accused Bhanwarlal was absconding. The trial court
      more specifically instructed to put a note with red ink on
      the front page of the record for its safe custody. In such a
      situation, it assumes importance that there was nothing on
      record to show as to what happened to the remaining bulk
      quantity of contraband. The absence of proper explanation
H
MANGILAL v. THE STATE OF MADHYA PRADESH                           531
           [M. M. SUNDRESH, J.]

from the prosecution significantly undermines its case and        A
reduces the evidentiary value of the statements made by
the witnesses.
10. Omission on the part of the prosecution to produce the
bulk quantity of seized opium would create a doubt in the
mind of the Court on the genuineness of the samples drawn         B
and marked as A, B, C, D, E, F from the allegedly seized
contraband. However, the simple argument that the same
had been destroyed, cannot be accepted as it is not clear
that on what authority it was done. Law requires that such
an authority must flow from an order passed by the
Magistrate. On a bare perusal of the record, it is apparent       C
that at no point of time any prayer had been made by the
prosecution for destruction of the said opium or disposal
thereof otherwise. The only course of action the
prosecution should have resorted to is for its disposal is to
obtain an order from the competent court of Magistrate as         D
envisaged under Section 52-A of the Act. It is explicitly
made under the Act that as and when such an application is
made, the Magistrate may, as soon as may be, allow the
application (see also Noor Aga v. State of Punjab, (2008) 16
SCC 417 : (2010) 3 SCC (Cri) 748).
                                                                  E
11. There is no denial of the fact that the prosecution has
not filed any such application for disposal/destruction of the
allegedly seized bulk quantity of contraband material nor
was any such order passed by the Magistrate. Even no
notice has been given to the accused before such alleged
destruction/disposal. It is also pertinent here to mention        F
that the trial court appears to have believed the prosecution
story in a haste and awarded conviction to the respondent
without warranting the production of bulk quantity of
contraband. But, the High Court committed no error in
dealing with this aspect of the case and disbelieving the         G
prosecution story by arriving at the conclusion that at the
trial, the bulk quantities of contraband were not exhibited
to the witnesses at the time of adducing evidence.
12. Turning to the other discrepancies in the prosecution case,
PWs 1 and 2 the independent witnesses portrayed by the            H
532              SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A            prosecution have turned hostile and did not support its case. It is
             manifest from the record that they had simply put their signatures
             on the papers at the whims of the investigating agency. Another
             aspect that goes in favour of the accused is that, the version of
             prosecution that the respondent voluntarily made the confessional
             statement cannot be believed in the light of admission by Narcotics
B
             Officer (PW 5), a key prosecution witness, that the statement of
             the respondent-accused under Section 67 of the Act was recorded
             while he was in his custody and the time was not mentioned on
             the statements. This fact further gets corroborated with the
             statement of PW 6 also that the statement of the accused was
C            recorded after arrest and while in custody. Thus, it cannot be said
             that the statement of the accused confessing the crime was
             voluntarily made under the provisions of the Act.”
                                                            (emphasis supplied)
            13. There is a serious doubt with respect to the seizure. P.W.5
D     who was a police officer himself had deposed on the existence of the
      very same seized materials even before the occurrence. This testimony
      which destroys the very basis of the prosecution case has not even been
      challenged.
             14. Both the Courts have mechanically placed reliance on the
E     FSL Report while taking the statement of P.W.11 as the gospel truth.
      The views expressed by him can at best be taken as opinion at least on
      certain aspects. There are too many material irregularities which create
      a serious doubt on the very case of the prosecution. On a proper analysis
      we have no hesitation in holding that the impugned judgments are liable
F     to be set aside and the appellant is to be acquitted by rendering the
      benefit of doubt.
             15. In the result, the appeal is allowed. The conviction and sentence
      rendered by the Additional Sessions Judge, Special Court NDPS, Jaora,
      District Ratlam, Madhya Pradesh in Special Sessions No. 19/2010 as
G     confirmed by the High Court of Madhya Pradesh in Criminal Appeal
      No. 6163 of 2017 stands set aside. The appellant is acquitted of all the
      charges. Bond, if any, shall stand discharged.

      Divya Pandey                                                  Appeal allowed.
      (Assisted by : Shevali Monga, LCRA)
H