P. K. MISRA, J. ( 1 ) THE sole appellant has been convicted under Section 81 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'n. D. P. S. Act') and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh, in default, to undergo rigorous imprisonment for further period of one year. ( 2 ) THE prosecution case is as follows : On 15-8-1991, the Officer-In-Charge, Puri Town Police Station, got reliable information at about 6. 45 P. M. that brown sugar was being peddled near Gadanti Chhak. It is alleged that the O. I. C. (P. W. 5) made S. D. Entry No. 372 dated 15-8-1991 and proceeded towards the spot along with Sub-Inspector (P. W. 1), Shri N. N. Lanka, S. I. and two Havildars who have not been examined. It was found that the appellant was selling brown sugar. On seeing the raiding party, the buyers left the place, but the accused was apprehended. In presence of P. Ws. 2, 3 and 4, the accused was searched and brown sugar was seized which was kept in police malkhana till production in Court on 12-11-1991 on which date it was sent for chemical analysis. After receiving report from the Chemical Analyst that the articles seized were, in fact, brown sugar, charge sheet was filed and the accused person was prosecuted under Section 21 of the N. D. P. S. Act of selling/being in possession of brown sugar. ( 3 ) THE plea of the accused person was one of denial and it was claimed that he has been falsely implicated. ( 4 ) AS already indicated, P. W. 5 was the Officer-In-Charge, who seized the articles and subsequently investigated into the case and P. W. 1 was the accompanying police officer. The three witnesses to the seizure P. Ws. 2, 3 and 4, turned hostile and did not support the prosecution case. Relying upon the evidence of P. W. 5 as supported by the evidence of P. W. 1 and the report of the Criminal Analyst, the trial Court found that the accused was in possession of brown sugar and convicted him under Section 21 of the N. D. P. S. Act. Relying upon the evidence of P. W. 5 as supported by the evidence of P. W. 1 and the report of the Criminal Analyst, the trial Court found that the accused was in possession of brown sugar and convicted him under Section 21 of the N. D. P. S. Act. ( 5 ) IN this appeal, it is contended on behalf of the appellant that mandatory provisions of Section 42 and 50 of the N. D. P. S. Act have not been complied. It is further contended that the articles alleged to have been seized were not produced before the Court for a long period and the materials on record do not indicate that the articles seized had been properly sealed and kept in safe custody till their production in the Court on 12-11-1991. It is also contended that in the absence of any independent corroboration regarding the seizure, the order of conviction cannot be sustained. The learned Standing Counsel has supported the order of conviction. ( 6 ) AS per the prosecution case, the search and seizure were effected pursuant to reliable information received at the police station at about 6. 45 P. M. on 10-8-1991. P. W. 5 claims that he had made station diary entry No. 372 dated 15-8-1991, but curiously enough the said station diary entry was neither produced nor proved. There is also no evidence whatsoever regarding sending the information which is alleged to have been entered in the station diary to the immediate superior officer. It is thus evident that in the absence of the station diary entry and in the absence of evidence as to whether copy of the information was sent to the superior officer, it is difficult to accept the mere ipso dixit of P. W. 5 that the reliable information alleged to have been received by him was, in fact, reduced into writing. It is evident that the requirement of Section 42 (1) regarding the prior information into writing has not been complied. Similarly, in the absence of any evidence regarding sending of the said information to the immediate superior officer, it is clear that Section 42 (2) has not been complied. It is evident that the requirement of Section 42 (1) regarding the prior information into writing has not been complied. Similarly, in the absence of any evidence regarding sending of the said information to the immediate superior officer, it is clear that Section 42 (2) has not been complied. It has been laid down by the Supreme Court in the case of State of Punjab v. Balbir Singh (1994)7 OCR (SC) 283 that prior information if received should be reduced into writing which is a mandatory requirement of the N. D. P. S. Act. Relying upon the aforesaid decision of the Supreme Court, similar view has been expressed by the Orissa High Court in Balbir Singh v. State of Orissa, (1996) 11 OCR 9 and Surendranath Mohanty v. State of Orissa, (1996) 11 OCR 130. In view of the aforesaid finding, it is clear that the trial as such was vitiated, as observed by the Supreme Court. ( 7 ) P. W. 5 and P. W. 1, the two police officials, claim that before searching, the accused person was offered as to whether he would like to be searched in presence of a magistrate or a gazetted officer, and he declined the offer and opted to be searched before P. W. 5. Such oral evidence of P. W. 5 and P. W. 1 does not find corroboration from any contemporaneous document. In the seizure-list (Ext. 1), it has not been indicated as to whether opportunity was offered to the accused person to be searched either in presence of a nearest magistrate or nearest gazetted officer. Similarly, in the F. I. R. (Ext. 4), which was drawn up by P. W. 5 himself just after the search and seizure, it has not been indicated that option was given to the accused person to be searched either in presence of magistrate or gazetted officer, as required under Section 80 of the N. D. P. S. Act. In the absence of any contemporaneous documentary evidence, it is hazardous to accept the mere statements of P. W. 6 and P. W. 1 who being the police officials were part of the raiding party. As such, it is clear that the materials on record do not establish beyond reasonable doubt regarding compliance of Section 50 of the N. D. P. S. Act. As such, it is clear that the materials on record do not establish beyond reasonable doubt regarding compliance of Section 50 of the N. D. P. S. Act. As has been held in the aforesaid decision of the Supreme Court and several other subsequent decisions of the Supreme Court as well as of the Orissa High Court, the requirement of giving option is mandatory and non-compliance thereof vitiates the trial. ( 8 ) IT has been also contended by the learned counsel for the appellant that the seized articles were belatedly produced before the Court after about three months on 12-11-1991 and the materials on record do not indicate that the articles had been properly sealed and had been kept in safe custody during the period from the date of seizure till production before the magistrate. It is claimed by P. W. 8 that he could not produce the seized articles before the Court as he was engaged in other duties such as Mandal Commission Agitation and V. I. P. duties. Such a plea is not acceptable in the face of it. In fact, when the accused was produced in Court on the next day, rothing prevented the Investigating Officer from producing the seized articles along with the accused person. It is claimed that the seized articles were kept in police malkhana under lock and key. There is no evidence that the seal was kept with any other person. Thus, it is clear that the seal as well as the seized articles continued throughout under the custody of P. W. 5. In such state of evidence, it is difficult to hold that the seized articles had been kept in safe custody till their belated production before the Magistrate. In similar facts and circumstances, in the case of Vaisala v. State of Kerala (1993)6 OCR (SC) 457, the prosecution case was doubted and the accused was acquitted. The said decision has been followed in several other decisions of this Court such as Laxmidhar Mohapatra v. State of Orissa (1994)7 OCR 108 and Ajay Kumar Dixit v. State of Orissa, (1994)7 OCR 445. ( 9 ) IN view of the aforesaid glaring defects and non-compliance with mandatory provisions of law, there is no other alternative than to set aside the conviction. In the result, the appeal is allowed and the order of conviction and sentence is set aside. ( 9 ) IN view of the aforesaid glaring defects and non-compliance with mandatory provisions of law, there is no other alternative than to set aside the conviction. In the result, the appeal is allowed and the order of conviction and sentence is set aside. The accused be set at liberty forthwith unless his detention is required in any other case. Appeal allowed.