P. C. NAIK, J. ( 1 ) BY judgment dated 19-11-1992 passed in S. T. No 108/92, the learned Sessions judge, Sundargarh has convicted the appellant under Sec 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short the NDPS Act) and sentenced him to undergo R. I. for five years and to pay a floe of Rs. 50,000/- and in default of payment of fine, to undergo further R. I for one year. Aggrieved by the conviction and sentence, the appellant has preferred this appeal. ( 2 ) ACCORDING to the prosecution, on the evening of 8th July 1992, Rabindranath Mohapatra (PW 5) S. I. of Police of Tangarpli P. S. was on patrol duty along with S. R. Mallik (PW 4) S. I. of Police, Havildar Amarendra Patnaik (PW 3) of Tarapur out-post. On receiving information that accused Baidyanath Panigrahi of Laxmi market was selling Ganja, he proceeded to the spot along with the police personnel. He called independent witnesses and after giving search of their persons to the witness, entered the house of the accused and recovered 250 grams of Ganja which was concealed under a cot. As the accused was not able to produce any permit/licence authorising him to possess Ganja, it was seized list Exi. 1. However, out of the seized Ganja, a quantity of 10 grams was kept apart as sample vide seizure-list Exi. 2. Both the seizure-lists were signed by the accused. These are Ext. 1/3 and Ext. 2/1 respectively. The seized Ganja was kept in separate packets and sealed in presence of witnesses. On these packets the signature of the witnesses and also the accused was taken. Thereafter, the accused was taken to the police-station along with the seized articles and was forwarded to the Court. ( 3 ) THE sample of seized Ganja was sent for chemical examination to the Regional Forensic Science Laboratory, Amthapaii, Sambalpur through the SDJM, Panposh. The report of the Chemical Examiner (Ext. 3) showed that the seized sample was Ganja. Initially a prosecution report was submitted under Sec. 47 (a) of the Bihar and Orissa Excise Act on the impression that Ganja was covered under that Act. But subsequently it was corrected, find a prosecution report was submitted under Sec. 20 (b) of the NDPS Act, 1985. The plea of the defence is one of denial. Initially a prosecution report was submitted under Sec. 47 (a) of the Bihar and Orissa Excise Act on the impression that Ganja was covered under that Act. But subsequently it was corrected, find a prosecution report was submitted under Sec. 20 (b) of the NDPS Act, 1985. The plea of the defence is one of denial. ( 4 ) IN support of its case, the prosecution examined five witnesses of which PW5 1 and 2 are independent witnesses, Havildar A. Patnaik is PW 3, Sri R. N. Mohapatra, S. I. is PW 5 and Sri S. R. Mallik, S. I. is PW 4. No witness was examined on behalf of the defence. ( 5 ) ON the material on record, in the opinion of the learned Sessions Judge, offence under Sec. 20 (b) of the NDPS Act was made out and as such the accused was convicted and sentenced accordingly. Hence this appeal. ( 6 ) SHRI S. S. Swain, learned counsel for the appellant strenuously argued that the conviction and sentence is bad in law because the learned trial court has committed gross error in not properly appreciating the evidence on record and drawing conclusions which cannot be supported. It is contended that the provisions contained in Sec. 42 of the NDPS Act have not been complied with, the ownership of the house had not been enquired into, there was non-compliance with the provisions of Sec. 55 of the NDPS Act which requires the seized articles to be kept in P. S. Malkhana till they are sent for chemical examination, which evidence is lacking in this case. The further contention of Shri Swain is that as independent witnesses (PW5 1 and 2) do not support the prosecution, the prosecution case ought to have been thrown out. ( 7 ) AS the prosecution story starts with receiving of information by the S. I. of Police, I will first consider his evidence and thereafter, consider the evidence of PW5 1 and 2 who are independent witnesses and are alleged to have witnessed the seizure. PW 5 states that while he was on patrol duty along with the Sub Inspector S. R. Mallik (PW 4), Havildar A. Patnaik (PW 3) and Havildar R. N. Naik (not examined), he received information that the accused was selling Ganja. PW 5 states that while he was on patrol duty along with the Sub Inspector S. R. Mallik (PW 4), Havildar A. Patnaik (PW 3) and Havildar R. N. Naik (not examined), he received information that the accused was selling Ganja. He states that on receiving this information, he, along with other police officers and independent witnesses, proceeded to Laxmi Bazar to search the house of the accused. He states that before entering the house, they gave personal search of their persons to the witnesses (not named ). He further states that 250 grams of Ganja was recovered from under a cot. According to this witness, Ganja was seized vide Ext. 1 and out of it, 10 grams of Ganja was taken out as sample. He further states that signature of the accused obtained on the seizure list and that the seized articles were kept in two separate packets which were sealed in the presence of the witnesses (not named ). He further states that the accused and the seized articles were taken to the Police Station from where the accused was forwarded to the Court along with the prosecution report. This witness states that he sent the sample for chemical examination through the SDJM, Panposh. In cross-examination, PW 5 admits that the information received by him was not reduced in writing. He also admits that he did not enquire about the ownership of the house. According to him, he had called the neighbouring shopkeepers as witnesses, but did not call any owner of the adjacent house. He also admits that he did not inform the accused that if he so desires, he could be searched in presence of a Magistrate. He also admits that he did not take assistance of any police officer at the time of seizure and the accused was not informed in writing as to why he was being arrested. The sub-Inspector of Police, S. R. Mallik was examined as PW 4. His statement is more or less on the same lines as that of PW 5. Havildar A. Patnaik who was attached to Tarapur out-post was examined as PW 3. He more or less repeats what has been stated by PW 4 and PW 5. The sub-Inspector of Police, S. R. Mallik was examined as PW 4. His statement is more or less on the same lines as that of PW 5. Havildar A. Patnaik who was attached to Tarapur out-post was examined as PW 3. He more or less repeats what has been stated by PW 4 and PW 5. ( 8 ) THUS, PW5 3,4 and 5 in substance, state that on receiving information they had gone to the house of the accused but do not state that the information they received was not reduced in writing. They state that before entering the house of the accused, they gave their personal search to two witnesses, but the names of these witnesses to whom their personal search was given, was not mentioned. It is also stated that the seizure was in presence of the witnesses whose names were again not mentioned. What is important to be noticed is the omission on the part of the official witnesses to state about the safe custody of the Ganja which was seized. Admittedly, Ganja was seized on 8-7-1992 and was sent for chemical examination vide memo No. 1114 dated 8- 91992 as it is clear from Ext. 3. There is no explanation as to where the seized Ganja was kept during this intervening period of about 2 months. This, in my opinion, is a vital omission on the part of the prosecution. In this case the search and seizure was admittedly after sunset. Sub-sec. (1) of Sec. 42 of the NDPS Act provides that if an officer empowered has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance is kept or concealed in building, conveyance or enclosed place between sunrise and sunset should search such building, conveyance or place and incase of resistance, break open any door and seize such drug or substance which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance and detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. Proviso to Sub-section (1) of Section 42 provides that if such officer has reason to believe that a search-warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or faculty for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (Emphasis supplied) Sub-sec. (2) of Sec. 42 provides that where an officer takes down any information in writing under Sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior official. ( 9 ) FROM the testimony of PW 5 it is apparent that the information received by him that Ganja was kept and concealed in the house of the accused was not taken down in writing. It is also apparent that the entry, search and seizure in the premises of the accused took place between sunset and sunrise without recording grounds of his belief that obtaining a search warrant or authorisation may result in concealment of evidence or give an opportunity to the offender to escape. This shows a clear non-compliance of the provisions contained in Sec. 42 of the Act. ( 10 ) I may also refer to provisions of Sec. 55 of the NDPS Act which provides that an officer-in- charge of a police-station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-incharge of the police-station. In the instant case, in the evidence of PW5 3,4 and 5, there is no mention about the safe custody of the seized articles. For the intervening period of about two months between the date of seizure and the date on which it was sent for chemical examination. In the instant case, in the evidence of PW5 3,4 and 5, there is no mention about the safe custody of the seized articles. For the intervening period of about two months between the date of seizure and the date on which it was sent for chemical examination. ( 11 ) ANOTHER thing to be noticed in this case is the admission or PW 5 that initially after seizing Ganja, a prosecution report under Sec. 47 (a) of the Bihar and Orissa Excise Act was filed in Court and it was much later when he came to know that the offence covered by Sec. 20 of the NDPS Act and that a prosecution report under Sec. 20 (b) (i) according to that Act was filed. It clearly indicates that PW 5 and others accompanying him had no knowledge about the provisions of the NDPS Act and probably, it is for this reason that there has been a non-compliance of the provisions contained in Sees. 42 and 55 of the Act. ( 12 ) HAVING considered the evidence of the official witnesses, I will proceed to consider the evidence of PW5 1 and 2 who are the only independent witnesses examined in this case. Though PW5 3,4 and 5 state that they had given search of their person to the witnesses who were not named and as PW5 1 and 2 are the only independent witnesses examined by the prosecution, we will assume for the moment that these are the witnesses to whom PW5 3,4 and 5 gave their personal search. ( 13 ) PANCHU Sethi, who is an employee under the Hindustan Steel Limited, Rourkela was examined as PW 1. He states that he had put his signature on the seizure-list on being asked to by a police Havildar. He admits that he signed the list after it was read over. But he clearly states that Ganja was not seized from the possession of the accused in his presence. In cross-examination, he specifically states that he was not present at the time of seizure and that he had signed the list on the public road. He also states that he has no knowledge about the contents of the packets. Sushil Kumar Dagara who is also an employee of Hindustan Steel Limited, Rourkela was examined as PW 2. In cross-examination, he specifically states that he was not present at the time of seizure and that he had signed the list on the public road. He also states that he has no knowledge about the contents of the packets. Sushil Kumar Dagara who is also an employee of Hindustan Steel Limited, Rourkela was examined as PW 2. He states that on being asked by the police, he had put his signature on a document. He further states that he heard that Ganja was seized, but what was seized, was not shown to him. In cross examination, he states that he signed the document on the public road. ( 14 ) THE prosecution has not brought out in the evidence of PW5 1 and 2 that PW5 3, 4 and 5, before entering the house of the accused, gave their personal search to these witnesses. Therefore, the self-serving statement of PW5 3, 4 and 5 that they had entered the house of the accused after giving their personal search to the witnesses does not appear to be correct. And this fact being correct, names of the persons to whom their personal search was given, would have been mentioned and if the search was given to PW5 1 and 2, this fact should have been brought out in their examination-in-chief. The testimony of these witnesses further discloses that they are not witnesses to the actual search nor were they present in the house of the accused where the search was made. On the contrary, their testimony dearly establishes that they had signed the list while they were on the public road. So, the independent witnesses do not support the case of seizure. Therefore, the only evidence on record is the self-serving statement of PW5 3, 4 and 5 that Ganja was seized from the house of the appellant. What is more important is that, neither PW 1 nor PW 2 was declared hostile. There is, therefore, no reason why their evidence should not be considered for what it is worth. ( 15 ) THE learned trial Court repealed the contention regarding non-compliance of the provisions of Sec. 55 of the Act regarding safe custody of seized Ganja on the ground that prosecution witnesses were not cross-examined and no question was put to them regarding safe custody of the seized Ganja during the period 8-7-1992 to 8-9-1992. ( 15 ) THE learned trial Court repealed the contention regarding non-compliance of the provisions of Sec. 55 of the Act regarding safe custody of seized Ganja on the ground that prosecution witnesses were not cross-examined and no question was put to them regarding safe custody of the seized Ganja during the period 8-7-1992 to 8-9-1992. In my opinion the view taken by the learned trial Court is not right. The burden to prove the safe custody of seized Ganja, is on the prosecution. A duty is cast on the Officer-in-charge of the Police-Station under Sec. 55 of the Act for safe custody. it is, therefore, incumbent on the prosecution to show safe custody of the seized articles. ( 16 ) BY drawing a presumption under Sec. 54 of the Act, it seems, the trial Court did not consider the fact that the independent witnesses PW5 1 and 2 do not support the prosecution, to be of any importance. The fact that these witnesses were not declared hostile seems to have been overlooked by the learned trial Judge. The conviction, therefore, is solely on the basis of the evidence of police officers PW5 3, 4 and 5 and the chemical report. The non-compliance with the provision of Secs. 42 and 55 has also been overlooked by the learned trial Court. ( 17 ) HAVING considered the matter, I am of the opinion that on the facts and circumstances of the case, the learned trial Court erred in convicting and sentencing the accused. In view of the evidence on record, the apparent non-compliance of the statutory provisions and, in the absence of any independent evidence, the accused ought not to have been convicted on the basis of presumption and parrot-like evidence of the official witnesses. ( 18 ) FOR the reasons aforesaid the appeal is allowed and the conviction and sentence is set aside. The accused be set at liberty forthwith. Appeal allowed. --- *** --- .