M. P. BHATTACHARYYA, J. ( 1 ) BY this appeal the accused appellant has challenged the judgement of conviction and sentence under Section 21, 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and imposition of sentence of rigorous imprisonment for 20 years and to pay fine of Rs. 20 lakhs, in default, for another 5 years more for the offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. ( 2 ) HE also suffered a sentence of rigorous imprisonment for 20 years and to pay fine of Rs. 20 lakhs, in default, rigorous imprisonment for another 5 years more for the offence under Section 23 of the Narcotic Drugs and Psychotropic Substances Act. No sentence was imposed separately for the offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act. The sentences were ordered to run concurrently with an order of set off of the period, the accused has undergone in detention. ( 3 ) THE said judgement of conviction and sentence was passed in Sessions Trial No. 8 (5) of 1992, by the Additional Sessions Judge, 2nd Court, Barasat, 24-Paraganas (N) dated 18-3-1994. ( 4 ) THE prosecution case, as indicated in the petition of complaint and also introduced by the prosecution in the evidence through witnesses is that the preventive officers being headed by the Superintendent, Sri Durga Pada Nath, Preventive Officer of Customs, Calcutta were keeping watch at Calcutta Airport on 28-4-1990 as Air Intelligence Unit of the Customs Department upon the passengers both in coming and outgoing. ( 5 ) ON that date at about 5. 30 or 6 p. m. on the eve of department of Air India Flight for Bombay an African National, whose name subsequently transpired as Antony Okoye, having Nigerian nationality reported at the Customs Declaration Counter. He came to India on 6-4-1990 via Delhi Air Port and he had declared that he was in possession of 10,000 U. S. Dollars. After such declaration in the Counter his passport was checked along with other documents and it was found that he was travelling to Lagoes via Bombay and Geneva by Swiss Air having as a connecting flight of Air India. After such declaration in the Counter his passport was checked along with other documents and it was found that he was travelling to Lagoes via Bombay and Geneva by Swiss Air having as a connecting flight of Air India. ( 6 ) HIS declaration was taken by the said team of preventive officers regarding the baggage in Domestic Declaration from wherein he declared that he was not in possession of any narcotic drugs. He had three registered baggages with him. On examination of the two Zipper bags his personal effects were found and the third baggage was a card board box containing ceramic articles like dinner sets, Ashtrays and Tea Sets. On search of his person two cash memos and packing list were found and it was noticed by the said team of officers that some manipulations were made in the cash memos. Though it was mentioned that there were 40 pieces of Ashtrays in the cash memos but on checking of the card board 75 pieces of Ashtrays were found in which evoked suspicion in the mind of the preventive officers. ( 7 ) ON examination of the ashtrays two small holes were detected on the bottom side of the ashtrays and those holes were seated with gum like substance and it was covered with sticker which was again painted with some substance similar in colour with that of the ashtrays. The suspicion of the preventive officers were further deepened and under the direction of Sri Durgapada Nath, those ashrays were broken by the preventive officers including Sri Sanjib Aich, P. W. 8 and under the supervision of Sri Durgapada Nath. Sri Aich P. W. 8 entered into the process of seizure. ( 8 ) FROM the evidence of P. W. 8 Sri Sanjib Aich, Preventive Officer, it appears that Sri D. P. Nath (P. W. 2) directed to break one ashtray to ascertain the exact nature of the ashtray. On breaking the ashtray some coloured powder was found within the hollowspace of the ashtrays and it was further found that the bottom of the ashtray had two lower layers with a hollowspace in between. On breaking the ashtray some coloured powder was found within the hollowspace of the ashtrays and it was further found that the bottom of the ashtray had two lower layers with a hollowspace in between. The brown coloured powder was put to preliminary test on the spot with the help of Narcotic Test Kit and such test was made by another preventive officer Sri P. R. Bhuyan as stated by P. W. 11, Sri Prohlad Kumar Das, another preventive officer. ( 9 ) THEREAFTER all the remaining pieces of ashtrays were broken on the spot and from each one of them the brown coloured powder of similar type was found from the hollow space in each of the trays and on weighing the entire substance of brown coloured powder weighed about 6. 89 Kg. of heroin valued at Rs. 10,43,500/- in Indian value and about Rs. 6 crores in international value. ( 10 ) ON demand no valid document could be produced by the said Antony Okoye for acquisition possession and/or exportation of the recovered narcotic drugs. The case was departmentally registered by Sri Aich under No. ASA 812/90 dated 28-4-1990. The said preventive officer Sri Sanjib Aich seized those materials of brown sugar together with broken ashtrays, air ticket boarding car, card board box, packing slip, cash memo etc. under a seizure list prepared by him showing details of the seizure. ( 11 ) THE seizure list was prepared under the direction and supervision of Sri D. P. Nath. A copy of the seizure list was handed over to the accused under proper receipt which was also signed by the accused and the independent witnesses. ( 12 ) THE seized articles were kept under Detention Receipt (D. R.) at Airport. Before being placed under D. R. the seized ashtrays were packed in a gunny bag which was sealed with D. R. I. seal and labelled with Serial No. and signature of the witnesses and the accused. The narcotics were kept in six packets and samples were drawn from each of the said packet. ( 13 ) THEN Sri D. P. Nath issued a summon on 29-4-1990 Ext. 1, 2 and in answer to that summon the accused appeared before the said officer, P. W. 2 and made a voluntary statement with his own hand writing Ext. The narcotics were kept in six packets and samples were drawn from each of the said packet. ( 13 ) THEN Sri D. P. Nath issued a summon on 29-4-1990 Ext. 1, 2 and in answer to that summon the accused appeared before the said officer, P. W. 2 and made a voluntary statement with his own hand writing Ext. 4 and on that night of 29-4-1990 he was arrested and on the following day he was produced before the Court of the learned Chief Judicial Magistrate, Barasat, 24 Parganas (N ). ( 14 ) THE further case of the prosecution is that the samples taken out of 6 packets were sent to chemical Examiners for chemical test and the test came positive. ( 15 ) ON 5-6-1991 another Superintendent of Customs Shri Nisith Kumar Sarkar, P. W. 1 lodged a complaint in writing on the basis of the record before the Court of the Chief Judicial Magistrate, Barasat and he did not claim any personal knowledge in this matter. ( 16 ) THE matter culminated in a sessions trial being Trial No. 8 (5) of 1992 in the Court of the Additional Sessions Judge 2nd Court, Barasat, 24 Parganas (N ). Charge was framed against the accused for committing an offence under Section 135 (1) (a) (b) (i) of the Customs Act and also for the offence under Sections 21, 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act. ( 17 ) THE learned Sessions Judge acquitted the accused from the charge under Ss. 135 (1) (a) (b) (i) of the Customs Act for want of sanction but found the accused guilty of the offence under Sections 21, 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and convicted him thereunder and sentenced him as above. ( 18 ) THE prosecution in order to bring home the charge against the accused laid evidence through 4 sets of witnesses. The first set is the preventive officers who conducted search and was keeping watch on the date of incident in the Airport over the passengers. The 2nd set is the seizure list witnesses. The 3rd set is the Chemical Examiners. The 4th set and the last set is the preventive officers in charge of the godowns. The first set is the preventive officers who conducted search and was keeping watch on the date of incident in the Airport over the passengers. The 2nd set is the seizure list witnesses. The 3rd set is the Chemical Examiners. The 4th set and the last set is the preventive officers in charge of the godowns. ( 19 ) THE first set i. e. the preventive officers are D. P. Nath, P. W. 2, the Superintendent who was posted on the date of the incident in the Calcutta Airport for watching the passengers. The other members of the team who were also the preventive officers kept watch under the supervision of Sri D. P. Nath, P. W. 2, are Shri Dilip Kumar Saha, P. W. 3, Duti Patar, P. W. 4, Sanjib Aich, P. W. 8, who actually seized the materials, Ganesh Chandra Dey, P. W. 9, G. S. Grewal, P. W. 10, Prohlad Kumar Das, P. W. 11 and T. Singh P. W. 12. ( 20 ) DEBO Jyoti Chakraborty, P. W. 14, a contractor in the Calcutta Airport and P. W. 16, Gopal Krishna Sarbabaidya, a porter of Ex-Servicemen Air Line Transport Service in the Calcutta Airport are the seizure list witnesses. ( 21 ) DILIP Kumar Kayal, P. W. 13 is also the preventive officer attached to the Customs Department, Calcutta and was posted at the Arms Godown of Customs House at 15/1 Strand Road, Calcutta as Arms Godown Officer. He proved the godown register of Narcotic Drugs and Psychotropic Substances Act maintained from 26-12-1988 till the date of his deposition i. e. 18th June, 1993. He also proved the entry under Serial No. 1/90 in that register dated 18-5-1990 which was in the handwriting of former godown Officer Sri Dinu Das, (Exbt. 2/72 ). ( 22 ) BIBHUTI Bhushan Swain, P. W. 15 is another preventive officer who was posted as Asstt. Shed Officer, Customs at Seizure Shed No. 2 Preventive on 23rd June, 1993. He proved Serial No. 171 in the master register of that shed from the period from 5-2-1985 to 17-12-1990 with all the entries in that serial which was made by Sri S. K. Jha on 22-6-90. The register according to him, is maintained in their office in usual course of official transaction. (Exbt. 11/1 ). He proved Serial No. 171 in the master register of that shed from the period from 5-2-1985 to 17-12-1990 with all the entries in that serial which was made by Sri S. K. Jha on 22-6-90. The register according to him, is maintained in their office in usual course of official transaction. (Exbt. 11/1 ). ( 23 ) ACCORDING to him Item No. 1 and 2 i. e. broken ashtray and damage card board are in that down shed which was received in that godown in a sealed gunny bag with DRI seal (AIV) containing in Item No. 1 and 2 on 22-6-1990, in connection with D/r-128/90 AIV---------------dated 28-4-1990. ASA 812/90 AIV SI (VII) - 94/90p ( 24 ) THE Chemical Examiners who held the test are P. W. 5, 6 and 7. P. W. 15 Dilip Kumar Roy an Asstt. Chemical Examiner attached to Chemical Laboratory, Customs House, Calcutta deposed that on 1-6-1990 he received two samples in two packets being sealed with D. R. I. seal some marking of such as lot Numbers 1/sample 66-S-ASA-812/90 (AIU)/dr/128/90/aiu and some signatures of accused A. Okoye and others on the seal packet in official course of usual transaction from his chemical examiner for analysis. ( 25 ) AFTER examining the substance he submitted his report on 7-8-1990. He found the substance in the samples are light brown coloured powder and responded to the test for heroin (Di Acetyl Morhine ). One of the samples contained powder weighing 8. 1 Gram and the other 7. 4 Gram. He proved the two sealed remnant samples submitted along with his test report (Mat. Exhbts. I and I/1 ). He also proved the report Exbt. 6 and his signature on it Exbt. 2/9. ( 26 ) P. W. 6 Binayak Das Gupta is another Asstt. Chemical Examiner attached to the Chemical Laboratory Customs House, Calcutta. According to his deposition on 1-6-1990 he received two sealed sample packets having been sealed with D. R. I. seals in usual course of official transaction with the markings as Lot No. 3/54-S-ASA-812/90 (AIU)/dlr 128/90 AIU and Lot No. 4/69-S-ASA-812/90 (AIU)/d. R. 128/90 AIU with signatures of A. Okoye and others on both the packets. He further deposed that on receipt of the packets he broke the D. R. I. seals and in both the packets he found Polythene packs containing light brown coloured powder. He further deposed that on receipt of the packets he broke the D. R. I. seals and in both the packets he found Polythene packs containing light brown coloured powder. On weighment of the samples, he found the same weight (1) SZD (9)/1-6-90 weighed 5. 63 Grams and (2) SZD (10)/1-6-1990 weighted 6. 01 Grams and on analysis of both the samples he found that the same responded to the test for heroin (Dy. Accetyl Morphine ). He submitted the report to the Chemical Examiner with the remnants of the samples. He proved said two packets (Mat. Exbit. I/2 and I/3) and he also proved the report (Exbt 6/1) and his signature on it (Exbt. 2/14 ). He also roved the signature of the Chemical Examiner, Sri M. M. Srivastava (Exbt. 2/10 ). ( 27 ) P. W. 7, Ranajit Kumar Adhikhari is another Asstt. Chemical Examiner to the Govt. of India posted at Chemical Laboratory, Customs House, Calcutta. On 7-8-1990 he held the said post in that laboratory. On that date he examined two samples of Lot No. 5 and 6 corresponding to the Laboratory Registration No. SZD (N)11-12/1-6-90 which was allotted to him by the Sample Section of the Laboratory for analysis. He received it in his usual course of official transaction in two sealed envelopes sealed with the seal of D. R. I. Calcutta. Those two packets are formerly sealed with the seal of D. R. I. and he found it in broken condition but sealed anew with seal of Chemical Examiner No. 1. He proved the covers (Mat. Exbts. I/4 and I/5 ). He also received the samples with a test memo. He compared the particulars on the Test Memo with the sample packets and found both of them agreed. Then he broke open the sealed packets and examined the contents. He proved the Test Memo (Exbit. 7 ). ( 28 ) ON examination of the contents of the two packets, which are light brown coloured powder, he found that those responds to the tests for heroin (Diacetyl Morphin ). ( 29 ) FROM the evidence of P. W. 8 Sri Sanjib Aich, we have already pointed out, he conducted search under the direction and supervision of the Supdt. Sri D. P. Nath in presence of the independent witnesses and he prepared the seizure list (Exbt. ( 29 ) FROM the evidence of P. W. 8 Sri Sanjib Aich, we have already pointed out, he conducted search under the direction and supervision of the Supdt. Sri D. P. Nath in presence of the independent witnesses and he prepared the seizure list (Exbt. 10) having the signature of the said two witnesses Debojyoti Chakraborty, P. W. 14 and Gopal Krishna Sarbabaidya, P. W. 16, on 28-4-1990. ( 30 ) ON the point of search and seizure his evidence has been corroborated by the other preventive officers namely the Supdt. D. P. Nath, P. W. 2, Dilip Kumar Saha, P. W. 3, Duti Patan, P. W. 4, Ganesh Chandra Dey, P. W. 9, G. S. Grewal, P. W. 10 Prohlad Kumar Das, P. W. 11 and T. Singh, P. W. 12. ( 31 ) HOW the search of persons to be conducted is envisaged in Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. ( 32 ) THE Supreme Court in the case of State of Punjab v. Balbir Singh reported in AIR 1994 SC 1872 : (1994 Cri LJ 3702) had held in paragraphs 17, 21 and 26 that it is an imperative requirement on part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a Magistrate. Thus the provision of Sections 50 are mandatory. Similar view has been expressed by the Apex Court in the case of Ali Mustafa Abdul Rahaman Moosa v. State of Kerala reported in 1995 Cal Cr LR (SC) 1 : ( AIR 1995 SC 244 ), by Bombay High Court in the case of Daniel Odemenam v. R. Ramesh reported in 1995 Cri LJ 1134 and also by Calcutta High Court by 3 Division Bench Judgements in the case of Mona Das v. State of West Bengal reported in (1995) 1 Cal HN 130 : (1995 Cri LJ 2990), Ali Hossain alias Dulal v. State of West Bengal reported in (1995) 2 Cal HN 448 and Md. Aslam Khan v. State of West Bengal reported in (1995) 2 Cal HN 377. ( 33 ) THE evidence of P. W. 8, Sanib Aich, P. W. 2, D. P. Nath and other corroborating witnesses is eloquently silent on this point. Aslam Khan v. State of West Bengal reported in (1995) 2 Cal HN 377. ( 33 ) THE evidence of P. W. 8, Sanib Aich, P. W. 2, D. P. Nath and other corroborating witnesses is eloquently silent on this point. It has not been stated by any of the witnesses that at any point of time the accused was informed of his right that if he so chooses he will be searched in the presence of a gazetted officer or the Magistrate in terms of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (which term will be REFERRED TO hereinafter as "the Act. ") ( 34 ) IT was contended by the State Advocate Mr. Sasanka Kumar Ghosh that as the entire search was made in presence of Mr. D. P. Nath, who is a Gazetted Officer, the mandatory part of searching the accused in presence of a Gazetted Officer had been complied with. ( 35 ) WE are unable to appreciate the argument of Mr. Ghosh in this respect because Mr. Nath was a member of the search and seizure party as would be evident from the evidence of Mr. Nath, PW. 2, Mr. Dilip Kumar Saha, P. W. 3, Mr. Sanjib Aich, PW. 8. According to them search and seizure was made under the direction and supervision of Mr. Nath. So, it is not a case that actually search was made in presence of Gazetted Officer. Mr. Nath, though a Gazetted Officer, he was a party to the search and seizure. That apart, accused Antony Okoye was not apprised of his right by Mr. Aich, PW. 8 that he has the right to be searched if he so chooses in the presence of a Gazetted Officer or a Magistrate. We have already pointed out that the Supreme Court and the different High Courts have already held that Section 50 is a mandatory provision and any violation of that will render the proceeding illegal. ( 36 ) FROM the evidence of P. W. 8 we have already pointed out that in paragraph 11 at page 46 of his evidence in the paper book he has stated that the said articles viz. Card board box, ceramic articles and the narcotics were kept under detention receipt (D. R.) at the Airport on 28-4-1990. ( 36 ) FROM the evidence of P. W. 8 we have already pointed out that in paragraph 11 at page 46 of his evidence in the paper book he has stated that the said articles viz. Card board box, ceramic articles and the narcotics were kept under detention receipt (D. R.) at the Airport on 28-4-1990. It has not been specified by any of the witnesses of the prosecution as where in the Airport those materials were kept. No register has been produced, no witness has come forward to say where in the Airport it was kept. ( 37 ) P. W. 13, Dilip Kumar Kayal, Arms Godown Officer of the Arms Godown, Customs House at 15/1, Strand Road, Calcutta proved Serial No. 1/90 from the Register of the godown meant only for Narcotic Drugs and Psychotropic Substances, dated 18-5-1990. (Exbit. 11 ). On that date one Dinu Das received one sealed gunny bag sealed with D. R. I. Seal, one poly packet containing samples in 18 sealed packets (6 lots of 3 samples each) with total gross weight of 6. 89 Kgs. approximately and kept it in the godown. He further deposed that entry in column 3 of that register showed that those were brown coloured powder believed to be Heroin. He further deposed that as per the entry in the register those materials were deposited by Sri S. Aich, Intelligence Officer, and as per entry one Mr. Antony Okoye was the person from whom these articles were seized. ( 38 ) HIS evidence shows that those were deposited by Sri Aich in the godown of the Customs on 18-5-1990. So there is no evidence regarding the whereabouts of the material from 28-4-1990 till it was deposited on 18-5-1990. The prosecution could not explain wherefrom the materials were taken, by whom it was taken and when it was taken. ( 39 ) FROM the deposition of P. W. 13 it is available that it was received in the godown only on 18-5-1990 though the seizure was made on 28-4-1990. Then again from the deposition of P. W. 5 the Chemical Examiner, Sri Dilip Kumar Roy it is seen that he received the two samples on 1-6-1990. That is also the deposition of PW 6 another Chemical Examiner Mr. Binayak Das Gupta. Then again from the deposition of P. W. 5 the Chemical Examiner, Sri Dilip Kumar Roy it is seen that he received the two samples on 1-6-1990. That is also the deposition of PW 6 another Chemical Examiner Mr. Binayak Das Gupta. ( 40 ) THERE is no evidence on record about the date on which the alleged Heroin was taken out from the Customs Godown and by whom it was taken out. If it was taken out on 1-6-1990 for Chemical Examination then there was no point of taking out further material of Heroin from the said godown for sample testing on 2-4-1993, 5-4-1990 and 10-5-1993 as was deposed by PW. 13, Dilip Kumar Kayal in para 6 of his deposition in the paper book. He further deposed that on 17-5-1993 the remaining portion of the seized materials were taken out from the godown for production before the Court. But he has also stated that the said seized Heroin is still lying in his custody except that part which has been used for analysis. There is no evidence on record to indicate that the seized Heroin was ever produced before the learned Chief Judicial Magistrate, Barasat or before any other Magistrate. That part remain unexplained by the prosecution. ( 41 ) PW. 15, Sri Bibhuti Bhusan Swain from the master register for the period from 5-2-1985 to 17-12-1990 deposed that on 22-6-1990 Shri S. Jha, another Preventive Officer, received two sealed gunny bags with D. R. I. seal at seizure shed No. 2 and entered the same in the master register under Entry No. 171. The entry is Ext. 11/1. The said entry shows that the articles received were broken ceramic ashtray with label and other things in one bag and damaged card board in another box. If those materials were deposited in the shed No. 2 on 22-6-1990, then where those materials were lying from 28-4-1990 till it was deposited then on 22-6-1990. No explanation is forthcoming from the prosecution. ( 42 ) WE have already pointed out from evidence of PW. 13 Shri Dilip Kumar Kayal that still the remaining portion of the Heroin was lying in the Customs Godown and it had never been produced before the Magistrate for destruction as is required under the law. No explanation is forthcoming from the prosecution. ( 42 ) WE have already pointed out from evidence of PW. 13 Shri Dilip Kumar Kayal that still the remaining portion of the Heroin was lying in the Customs Godown and it had never been produced before the Magistrate for destruction as is required under the law. ( 43 ) SUPREME Court in the case of Valsala v. State of Kerala reported in 1994 Cal Cr LR (SC) 4 : (1994 Cri LJ 1) has held that in a case where the seized article was produced in Court after a period of more than 3 months and there is no evidence whatsoever at all to show with whom the seized article was lying the seized article appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. No doubt the trafficking in narcotic drugs is a menace to the society but in absence of satisfactory proof in view of this State of evidence the Court cannot convict. ( 44 ) IN that given case the position was better than this case. There the seized article was not produced in Court after a period of more than three months but in this case till the conclusion of the trial before the trial Judge the material was kept in the godown of the Customs House and it was never been produced before the Court. No explanation has been given about the whereabouts of the material from 28-4-1990 till 18-5-1990. No explanation has been given as to when the material was taken for Chemical Examination. From the evidence of PWs. 5 and 6 it is available that they received the materials for examination on 1-6-1990. If it was taken out for Chemical Examination then there was no further necessity for further test but P. W. 13 in his evidence has stated that for sample test material was taken on 2-4-1993, 5-4-1993 and 10-5-1993. If the materials were already chemically examined then further examination of the same is a futile exercise and an otiose. If it was taken out for Chemical Examination then there was no further necessity for further test but P. W. 13 in his evidence has stated that for sample test material was taken on 2-4-1993, 5-4-1993 and 10-5-1993. If the materials were already chemically examined then further examination of the same is a futile exercise and an otiose. From his evidence we also find that the remaining portion of the seized materials was taken out on 17-5-1990 for production before the Court but in the next breath he has stated that remaining part of the materials except those part which were taken out, were in the Customs Godown. How that was possible ? That has not been explane by the prosecution. Those are missing links and as those missing links have not been properly explained, it cannot be stated with certainly that the material that was seized and the material that was sent for Chemical Examination was the same. No doubt the trafficking in narcotic drugs is a perilous act affecting not only an individual but a menace for the society. But conviction cannot be secured unless a case is proved to the hilt and by this evidence the prosecution could not offer any satisfactory evidence explaining the missing link. ( 45 ) UNDER these circumstances, the Court cannot convict the accused appellant. We accordingly, set aside the conviction and sentence of the accused and allowed the appeal. The accused as in Jail be released forthwith. Department is directed to do the needful immediately. An advance copy of this judgement be sent to the trial Court and to the Superintendent of Jail. ( 46 ) VIDYA NAND, J. :- I agree. Appeal allowed. .