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2. The facts giving rise to this appeal in short are that on dated 10.8.95 Shri Phool Singh Tekam, Sub Inspect of Police, being posted as Incharge of Social Security Scott (Samajik Suraksha Dasta) Satna, received information from the informer that some unknown person, in a attachi, carrying contraband substance the Ganja, is standing at Dhawari Square. He apprised such information through telephone to City Superintendent of Police Satna and also endorsed the same in the Rojnamcha Sanha Ex.P/10 at police station Kotwali. Subsequent to it, accompanied with the staff member ASI N.P.Shrivastav, Head Constable Ramdev and four constables proceeded towards the aforesaid square where near the Girls School, he found the appellant with a attachi. At the same time City Superintendent of Police also reached there. In presence of such senior police officer and the independent witnesses, namely, Munna Singh alias Gopal (PW 2) and Prem Lal (PW 3), he took the consent of the appellant to carry-out his search and pursuant to that the same was carried out. In such search from the possession of the appellant a key was found by which the attachi was opened in which two packets covered with paper were found. Out of them, in one packet one k.g and in another packet 950 gram of contraband substance the Ganja was found. The same was seized and out of aforesaid both the seized packets, the sample of 30 grams were taken out. The samples and the remaining substance was sealed, Dehati Nalishi was drawn-up and thereafter the appellant was arrested. Subsequent to the aforesaid proceedings, he accompanied with accused and alleged substance came to the Police Station Kotwali, Satna where he endorsed his arrival in the Rojnamcha Sanha of such Police Station. He also informed about the arrest of the appellant and the seizure of the substance and Dehati Nalishi to the City Kotwali, on which, the FIR for the offence of section 20 of the Act was registered against the appellant. Thereafter the aforesaid samples of the seized substance were sent to the FSL Sagar for its chemical examination from where the report was received according to which the same was found to be the contraband substance the Ganja. After holding the investigation on establishing the prima facie circumstance against the appellant for the aforesaid offence, he was charge sheeted for his prosecution under the aforesaid section.

3. On evaluation of the charge-sheet, the charge of section 20 of the Act was framed against the appellant. He abjured the guilt, on which, the trial was held, after recording the evidence of the prosecution as well as the defence, on appreciation, after holding guilty to the appellant, he was punished with the sentence as mentioned above. The same is under challenge in this appeal.

4. Shri Surendra Singh, learned Senior counsel of the appellant after taking me through the record of the trial court along with the impugned judgment said that the investigating agency had utterly failed to comply the mandatory provisions of sections 42 and 55 of the Act. In the lack of such mandatory compliance, the impugned conviction of the appellant is not sustainable. Besides this, he also assailed the impugned judgment on other grounds saying that from the place of seizure of the substance in which manner it was handled by the investigating officer and his companions upto the Police station and after reaching to the Police Station in which manner it was dealt with or was kept in whose safe custody, have not been proved. Even in this regard neither any Rojnamcha entry nor any register of Malkhana of the concerning Police station has either been produced or proved on the record. In the lack of it, it could not be deemed that after seizing the substance the same was properly handled and kept in some safe custody from where the sample was sent to the FSL for its chemical examination. According to him, unless the chain of keeping the seized substance and its sample in the safe custody and handled by the responsible person properly upto reaching the samples to the FSL is proved, the appellant could not be convicted mere on the basis of FSL report. Because in the lack of such material evidence it could not be assumed or deemed that the sample of the same substance, as alleged seized from the appellant, was sent to the FSL. He further said that except the Rojnamcha Sanha Ex.P/10 in which the entry regarding information of the informer was endorsed and the entry of the Rojnamcha (Ex.P/13) regarding arrival of said Police Officer from the place of seizure to the Police Station after seizing the substance, no other relevant Rojnamcha entries has neither been produced nor proved on the record. The entry in the Rojnamcha regarding departure of the aforesaid police officer Phool SinghTekam (PW 4) accompanied with the other police officials and the independent witnesses to the alleged place of the seizure, has neither been produced nor proved on the record. In the lack of it, it could not be assumed that on the date of the incident such police officials visited the place of incident shown by the informer. In continuation he said that the search memo of the appellant as well as the seizure memo of the alleged substance and the other papers, as alleged prepared during the course of investigation in presence of the witnesses, have not been supported by the alleged witnesses Munna alias Gopal (PW 2) and PremLal (PW 3). In the available scenario of the case, mere on the basis of the testimony of the Investigating Officer Phool SinghTekam (PW 4), the appellant could not be convicted. He also said that by which process and person the alleged substance was weighed on the spot, the same has not been stated in the seizure memo of the substance or the memo prepared for preparing the samples (Ex.P/5 and P/6). In addition it was also argued that the entire seized substance was neither produced before the trial court nor marked the articles and in the lack of it, in view of the principle laid down by the Apex Court in the matter of Ashok Vs. State of M.P- (2011) 5 SCC 123, the impugned conviction could not be sustained. With these submissions, he prayed for extending the acquittal to the appellant by setting aside the impugned judgment by allowing the appeal.

6. Having heard the counsel at length, keeping in view their arguments, after perusing the record, I am of the view that the impugned conviction of the appellant under the aforesaid section, due to following reasons, is not sustainable.

7. It is apparent on record that on receiving the information from the informer about having the possession of contraband substance Ganja with the appellant after recording the same in the Rojnamcha Sanha Ex.P/10 at P.S City Kotwali, Satna, its intimation in compliance of section 42 of the Act, was not sent to the senior police officials. Although, in this regard, an explanation has been putforth by the prosecution that such information was given through telephonic message from PS Kotwali to the office of City Superintendent of Police but in that regard the concerning Rojnamcha is neither produced nor proved on the record. In the lack of such Rojnamcha, it could not be assumed or deemed that such information was given to the City Superintendent of Police, Satna. It is also not proved that in which manner the independent witnesses were called at the Police Station before leaving the Police Station for the place of incident. In this regard neither any Rojnamcha nor the panchnama has been produced or proved on the record. This makes the presence of independent witnesses with the police party doubtful.

10. Besides the aforesaid after seizing the alleged substance and arresting of the appellant from the place of seizure upto the police station and further till sending the sample to the FSL Sagar, in which manner the seized substance and the samples were handled by the investigating agency, the same has neither been explained nor proved on the record by examining the concerning witnesses by whom the same was handled. In such circumstance, the inference could be drawn that from the place of incident the sample was handled by various persons at different places without preparing any panchnama or making any entry in the Rojnamcha or in other record kept for this purpose. In the lack of such material evidence and deposition of concerning witnesses, it could not be assumed that the sample and the seized substance was safely and properly handled by the prosecution agency till sending the sample to the FSL Sagar and also subsequently. The Rojnamcha entries in this regard have also neither been filed nor proved on the record. In such circumstances the possibility to temper the substance and its sample could not be ruled out. The benefit of this lacuna left by the prosecution should be given to the appellant as laid down by the Apex Court in the matter of The State ofRajasthan Vs. Daulat Ram-AIR 1980 SC 1314 in which it was held as under :-