P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 28-2-1994 passed by Shri B. K. Patel, 2nd Additional Sessions Judge, Puri in S. T. No. 32/273 of 1992convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. 00 in default, to undergo rigorous imprisonment for a further period of one year. ( 2 ) PROSECUTION case runs as follows :on 19-4-92 the Sub-Inspector of Excise (Mobile), Bhubaneswar (P. W. 3) was performing patrol duty with A. S. I. of Excise (P. W. 2) and some excise constables in Banpur area and received information that the appellant was selling opium in the market area. Therefore, he waited in the market area. At 4. 45 p. m. the appellant came to Bisarapatna crossing and purchased betel from a betel shop and stood there. P. W. 3 interrogated the appellant and observing formalities of search, he took personal search of the appellant and recovered from his shirt pocket 35 small paper packets kept in a big paper packet. It is alleged that each small packet contains one gram of opium. Besides cash of Rs. 1873/- was also recovered from another pocket of the appellant. The opium and cash were seized under the seizure list Ext. 1. Before the search, the appellant was given option to be searched in presence of a Magistrate but he denied. P. W. 3 took 10 grams of opium as sample and sealed the sample packet and the other packet containing balance quantity of opium. P. W. 3 arrested the appellant and took him along with the seized articles to his office at Bhubaneswar. On the next day, i. e. , 20-4-92 he produced the appellant along with the seized articles before the Judicial Magistrate, First Class, Banpur and prayed for sending the sample opium for chemical analysis. The J. M. F. C. , Banpur sent the sample for chemical analysis vide his forwarding letter (Ext. 5 ). The Chemical examination report (Ext. 7) dated 23-10-92 confirmed that the sample was opium. Hence after completion of enquiry P. W. 3 submitted prosecution report under Section 18 of the Act and the appellant stood his trial. ( 3 ) THE defence plea is one of denial. 5 ). The Chemical examination report (Ext. 7) dated 23-10-92 confirmed that the sample was opium. Hence after completion of enquiry P. W. 3 submitted prosecution report under Section 18 of the Act and the appellant stood his trial. ( 3 ) THE defence plea is one of denial. ( 4 ) IN order to bring home the charge against the appellant prosecution has examined three witnesses, out of whom P. W. 3 is the S. I. of Excise who detected the case and P. W. 2 is the A. S. I. of Excise who had accompanied P. W. 3 on patrol duty. P. W. 1 is an independent witness to the seizure. Defence has examined none. ( 5 ) RELYING on the statements of the prosecution witnesses, learned Additional Sessions Judge has come to the conclusion that the appellant was in conscious possession of the opium without authority and convicted him. He has rejected the contention of the defence that the appellant was entitled to an acquittal for non-compliance of the mandatory provisions of the Act. ( 6 ) MR. Mohanty, learned counsel for the appellant and Mr. Patnaik, learned Addl. Standing Counsel for the State were heard at length. Mr. Mohanty assailed the judgment of the trial Court contending that he has failed to properly appreciate the evidence on record and has erred in law in rejecting the defence contention regarding non-compliance of the mandatory provisions of the Act. Sri Patnaik, learned Addl. Standing counsel supported the impugned judgment, refuting the contentions of the learned counsel for the appellant. Rival contentions require careful consideration. ( 7 ) P. W. 1, the only independent witness to the seizure, examined in this case, has admitted in his statement in cross-examination that he has been convicted in a case under the Act for his illegal possession of opium and sentenced to undergo rigorous imprisonment for ten years and to pay fine and that a person from village Sunakera where the appellant resides, was a witness against him in that case. Hence his statement requires careful scrutiny before placing reliance on him. Hence his statement requires careful scrutiny before placing reliance on him. He has stated that while he was standing near the betel shop of Braja Sahoo, the other witness to the seizure who has been withheld from the witness box, the appellant was also present there and the excise officials reached there and interrogated the appellant and after observing formalities of search, P. W. 3 seized the opium and cash from the pockets of the appellant under the seizure list Ext. 1 in which he and the other witness-Braja Sahoo, have signed. In his statement in cross-examination P. W. 1 has stated that the appellant is a resident of village Sunakera which is at a distance of one and half kilometres from his village-Bhimpur. It is suggested to him that the distance between the two villages will be about 7 kilometres which he has denied. It is difficult to believe that P. W. 1 had gone to a betel shop situated at a distance of aboutone and half kilometres from his village, to take betel, as P. W. 1 has stated that he had placed order for betels to the shop-keeper and was waiting there. According to P. W. 1 there were many persons present at the betel shop but it is not known why a person convicted under the Act had been picked up as a witness to the seizure when others were available on the spot. It is suggested to this witness that since he had been implicated in that case at the instance of the appellant, he has foisted this false case against the appellant to wreck vengeance. Further P. W. 1 has stated that the S. I. of Excise with four excise constables came in a jeep whereas P. Ws. 2 and 3 have stated that the S. I. of Excise (P. W. 3), A. S. I. of Excise (P. W. 2) and three constables were on patrol duty and according to P. W. 2 they had been to Banpur on mobile duty from Bhubaneswar in a jeep arranged by P. W. 3 and according to P.W.3, P.W.2 had stated before him that they went to Banpur in a Tempo from Chandpur after getting down from a bus. In his statement in cross-examination P.W.3 has stated that they returned from the spot to Balugaon which is at a distance of about 5 to 10 kilometres from the spot, in an autorickshaw, which indicates that the patrol party had not taken any jeep and had travelled in a bus up to Chandpur. Thus it is found that the statement of P. W. 1 is not credible and no reliance can be placed on him, inasmuch as he appears to be a got-up witness and his presence on the spot at the time of alleged seizure is doubtful and his statement is not consistent with the statements of P. Ws. 2 and 3. So also it is found that the statements of the two official witnesses (P. Ws. 2 and 3) are bristled with contradictions and infirmities. As stated earlier, P. W. 2 has stated that the patrol party went in a jeep arranged by P. W. 3 from Bhubaneswar to Banpur but he has stated before P. W. 3 that they went in an autorickshaw to the spot from Chandpur where they got down from a bus, whereas P. W. 3 has stated that they returned to Balugaon in an autorickshaw which excludes the movement of the patrol party in a jeep. Further it is stated by P. W. 2 that the appellant was found standing at the betel shop when the patrol party arrived there and that the appellant tried to leave the place but was obstructed by P. W. 3. But P. W. 3 has stated that the patrol party waited for about 25 minutes after which the appellant came to the betel shop and placed orders for betels and that the appellant did not try to escape. These are material contradictions in the statements of P. Ws. 2 and 3 which coupled with the withholding of betel shop-keeper from the witness box, would cast grave doubt on the prosecution case regarding the recovery of contraband opium from the possession of the appellant and hence it will not be safe to place reliance on the statements of P. Ws. 2 and 3. ( 8 ) BESIDES the above, as stated by P. Ws. 2 and 3, the sample packet of opium (M. O. II), the packet containing balance quantity of opium (M. O. I) and the packet containing cash of Rs. 2 and 3. ( 8 ) BESIDES the above, as stated by P. Ws. 2 and 3, the sample packet of opium (M. O. II), the packet containing balance quantity of opium (M. O. I) and the packet containing cash of Rs. 1873/- (M. O. III) were sealed in paper packets containing the signatures of the witnesses but no brass/metal seal was used to seal the packets which were taken to the office of P. W. 3 at Bhubaneswar and kept during the night and were produced in Court of J. M. F. C. , Banpur on the next date. They have not stated that the seized articles and sample were kept in the safe custody in the official excise Malkhana. So the chances of tampering with the packets cannot be overruled. That apart, P. W. 3 has not taken down information regarding illegal selling of opium by the appellant in writing and he had not reduced to writing the option of the appellant to be searched by P. W. 3 himself, waiving his right to be searched in presence of a Magistrate or a Gazetted Officer. He has also not stated that he submitted a full report of the particulars of arrest and seizure to his immediate official superior. Thus it is found that there is non-compliance of mandatory provisions under Sections 42 (2), 50, 55 and 57 of the Act. ( 9 ) THE learned counsel for the appellant placed reliance on decisions in Thandi Ram v. State of Haryana, (1999) 3 JT (SC) 231 : (2000 Cri LJ 588) in which the Apex Court referred to the earlier decisions in Mohinder Kumar v. State, Panaji, Goa, AIR 1995 SC 1157 and State of Punjab v. Balbir Singh, (1994) 2 JT 108 : (1994 Cri LJ 3702) and held that when there was non-compliance of provisions under Sections 50, 52, 55 and 57 of the Act, the conviction of the appellant cannot be sustained. In Jadumani Sahu v. State, 1997 (3) Crimes 486 it has been held that when the search was effected after information was received and opium was recovered, it was obligatory for the officials to take down such information in writing before proceeding to search and when therewas breach of the mandatory provision under Section 42 (1) (2) of the Act, the trial was vitiated and conviction was unsustainable. In the said case it has been further held that when the sample of opium along with the seal remained with the seizing officer of excise staff for two weeks and he sent the sample for chemical analysis, without producing the same before the Magistrate and without keeping the same under the custody of the official-in-charge of nearest police station, the possibility of tampering with the seal could not be ruled out and conviction cannot be sustained. In Krushna Dora v. State, (1994) 7 OCR 590 it has been held that prosecution is obliged to establish by cogent and reliable evidence that the appellant was in exclusive and conscious possession of the contraband article in order to sustain conviction for the offence of illegal possession of the contraband article and when the prosecution evidence lacked in that respect the appellant would be entitled to acquittal. In Kanduri Sahu v. State of Orissa (1996) 11 OCR 469 it has been held that the onus is on the prosecution to prove that the article was in safe custody and the seized sample was kept in the official excise Malkhana and failure to do so would tantamount to breach of mandatory provision under Section 55 of the Act. In Raghu Sahu v. State, (1996) 11 OCR 472 it has been held that there will be non-compliance of mandatory provision under Section 50 of the Act when prosecution fails to produce any contemporaneous document to show that offer to be searched before a Gazetted Officer or a Magistrate had been made to the accused to exercise his right and that he waived his right. ( 10 ) KEEPING in view the decisions referred to above and on an analysis of the evidence on record, the inevitable conclusion would be that prosecution has failed to establish beyond reasonable doubt by adducing cogent and convincing evidence that the contraband opium was seized from the exclusive and conscious possession of the appellant and that there has been non-compliance of the mandatory provisions under Sections 42 (2), 50, 55 and 57 of the Act. Therefore, the appellant cannot be held guilty of the charge and his conviction cannot be sustained and he will be entitled to an acquittal. Hence the impugned judgment convicting the appellant is liable to be set aside. Therefore, the appellant cannot be held guilty of the charge and his conviction cannot be sustained and he will be entitled to an acquittal. Hence the impugned judgment convicting the appellant is liable to be set aside. ( 11 ) IN the result, the Criminal Appeal is allowed and the conviction and sentence passed against the appellant in the imugned judgment dated 28-2-1994 passed by the 2nd Additional Sessions Judge, Puri in S. T. No. 32/273 of 1992 are set aside. The appellant is found not guilty and is acquitted of the charge. He be set at liberty forthwith if his detention in any other case is not otherwise required. Appeal allowed.