P. K. PATRA, J. ( 1 ) THE appellant has challenged the judgment dated 18-1-1995 passed by Shri B. K. Patnaik, Sessions Judge, Balangir in Sessions Case No. 121 of 1994 convicting him under S. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of one lakh rupees, in default to undergo rigorous imprisonment for a further period of five years. ( 2 ) PROSECUTION case runs as follows :-ON 15-5-1994 at about 10 a. m. , P. W. 1, the S. I. of Excise, Tusura while performing patrol duty at Jarasingha along with an A. S. I. (P. W. 2) and Excise Constables, received information that the appellant and his father were illegally selling opium in their house in that village. Receiving the above information, P. W. 1 and his staff went to the house of the appellant and found the appellant and his father present in the house. They searched the house in presence of two local witnesses after observing the formalities of search. P. W. 1 recovered a small tin Diba wrapped with polythene from the waist of the appellant who had put on a Lungi and the tin Diba contained eleven opium tablets. P. W. 1 also recovered Rs. 64. 00 from the waist of the appellant but no incriminating article was recovered from the person of the father of the appellant or from the house. On weighment the opium tablets weighed 5 grams 500 milligrams each tablet weighing 0. 500 milligrams. The appellant could not produce any authority to possess the opium. P. W. 1 drew up two samples each weighing one gram (two tablets) and seized the entire 51/2 grams of opium under the seizure list Ext. 1. He sealed the sample packets and the packet containing the balance quantity of opium separately by using his own brass seal, arrested the appellant and his father and produced them before the S. D. J. M. , Balangir with a prayer to send the sample packets of opium for chemical examination. The S. D. J. M. sent the same for chemical examination vide his forwarding letter dated 18-6-1994. The chemical examiner's report (Ext. 4) confirmed that the samples were opium. The S. D. J. M. sent the same for chemical examination vide his forwarding letter dated 18-6-1994. The chemical examiner's report (Ext. 4) confirmed that the samples were opium. After completion of investigation, P. W. 1 submitted prosecution report against the appellant and his father who stood their trial. While the appellant was found guilty and convicted of the charge, his father was found not guilty and has been acquitted. ( 3 ) THE defence plea is one of denial. ( 4 ) IN order to bring home the charge against the appellant, prosecution has examined three witnesses only, of whom P. W. 1 is the S. I. of Excise who detected the case, P. W. 2 is the A. S. I. of Excise who had accompanied P. W. 1 on patrol duty and P. W. 3 is an independent witness to the seizure who did not support the prosecution case and having turned hostile has been cross-examined by the prosecution. The defence has examined none. ( 5 ) MR. S. K. Nayak, learned counsel for the appellant, and the learned Additional Government Advocate appearing for the State were heard at length. Mr. Nayak assailed the judgment of the learned Sessions Judge contending that he has failed to properly appreciate the evidence and has come to the erroneous conclusion that the opium was seized from the exclusive and conscious possession of the appellant and that rejection of the defence contention regarding non-compliance of the mandatory provisions of the Act was illegal. Learned Additionalgovernment Advocate supported the impugned judgment, refuting the contentions of the learned counsel for the appellant. The rival contentions require careful consideration. ( 6 ) LEARNED Sessions Judge relying on the statements of the two official witnesses (P. Ws. 1 and 2) reached the conclusion that the appellant was in possession of contraband opium and found him guilty of the charge and convicted him, while the father of the appellant from whom nothing had been seized was found not guilty and was acquitted. Since P. W. 3, the only independent witness to the seizure examined in this case has not supported the prosecution case, the statements of the two official witnesses (P. Ws. 1 and 2) are to be carefully scrutinised before placing any reliance on them to base a conviction of the appellant. Since P. W. 3, the only independent witness to the seizure examined in this case has not supported the prosecution case, the statements of the two official witnesses (P. Ws. 1 and 2) are to be carefully scrutinised before placing any reliance on them to base a conviction of the appellant. P. W. 1 has stated to have called two local witnesses before the search and seizure, but only one of them has been examined while the other has not been examined by the prosecution. P. W. 1 sent requisition (Ext. 5) to the Tahsildar for verification of the house in question who directed the Revenue Inspector, Jarasinga for the purpose and Ext. 6 is the report of the said Revenue Inspector which reveals that the house in question has been recorded in the name of Late Mukunda Patra, s/o Sobhaban Patra. No evidence has been led to establish that Kartik Patra, father of the appellant, or the appellant himself, was the owner in possession of the house in question. P. W. 3 has stated that Kartik Patra had other brothers and all of them were jointly residing in one house. Since it is alleged that opium tablets were seized from the waist of the appellant, it is not necessary to go into the ownership and possession of the house in question and the only point for determination in this case would be regarding the exclusive and conscious possession of the opium tablets by the appellant. Hence the statements of the two official witnesses (P. Ws. 1 and 2) require high test of scrutiny in view of the decision in the case of Md. Razzak Pathan v. State of Maharashtra, reported in (1995) 1 Crimes 207 , wherein it has been held that for offences under the N. D. P. S. Act when charges are serious and punishments are heavy, the degree of proof must necessarily pass a high test of scrutiny and must exclude all other possibilities. ( 7 ) P. WS. 1 and 2 have stated that they entered inside the house of the appellant with two witnesses and on personal search of the appellant, one tin Diba (M. O. II) containing eleven opium tablets, each weighing half gram was recovered from his waist. They have also stated to have recovered Rs. 64. 00 kept in a packet (M. O. I.) from the waist of the appellant. They have also stated to have recovered Rs. 64. 00 kept in a packet (M. O. I.) from the waist of the appellant. Although they have stated to have sealed the sample packets as also the balance quantity of opium kept in another packet, yet they have not stated the process of sealing the seized article and the sample. It is not known whether paper slips containing signatures of witnesses and the accused persons were affixed to the packets, or whether the packets were sealed using wax and personal seal of P. W. 1. They have also not stated as to whether the personal seal, if any, used for the purpose was handed over to any independent witness or not and the seal has also not been produced in Court. The learned Sessions Judge has also not discussed on this aspect. P. Ws. 1 and 2 have also not specifically stated regarding the weighing scale and the weights used for weighing the opium tablets. Though P. W. 1 has stated that he produced the accused persons in Court along with the seized article, there is no evidence on record as to whether the seized article and the samples had been kept till the samples were sent for chemical examination on 18-6-1994. There is also no reason for the long delay of one month and three days in sending the samples for chemical examination. Admittedly P. W. 1 did not reduce to writing the information received by him regarding illegal sale of opium by the appellant and his father, which tantamounts to non-compliance of the provisions under Ss. 42 (1) and (2) of the Act. There is no documentary evidence to show that the appellant and his father were given option to be searched before any Gazetted Officer or a Magistrate, for which it can be said that there was non-compliance of the provisions of S. 50 of the Act. As stated earlier, there is no satisfactory evidence on record regarding safe custody of the seized article for which it can also be held that the mandatory provisions of S. 55 of the Act have not been complied with. A disquietening feature of the case is the implication of the father of the appellant although nothing incriminating was recovered from his possession. According to P. Ws. A disquietening feature of the case is the implication of the father of the appellant although nothing incriminating was recovered from his possession. According to P. Ws. 1 and 2, the appellant and his father were searched when they were sending and the cash of Rs. 64. 00recovered from the waist of the appellant was the sale proceeds of the opium tablets which cannot be believed to be true, inasmuch as there was no customer present in the house of the appellant and no transaction was being carried on by the appellant at the time of arrival of the Excise officers. Had the appellant been illegally dealing in opium tablets, he would have tried to escape from the spot seeing the Excise officers, but he has not done so. P. W. 1 has not collected any evidence that the appellant was illegally selling opium to any customer. In view of the discussions made above, the statements of P. Ws. 1 and 2 cannot be safely relied upon to base a conviction of the appellant. Besides, for non-compliance of the mandatory provisions of Ss. 42 (1) and (2), 50, 55 and 57 of the Act, the conviction of the appellant cannot be sustained. ( 8 ) IN the case of Jadumani Sahu v. State, reported in (1997) 3 Crimes 486 , it has been held that when search was effected after information was received and opium was recovered from the house, it was obligatory for the officials to take down the information in writing before proceeding to search and when there is breach of the mandatory provisions of Section 42 (1) and (2) of the Act, the trial would be vitiated and the conviction would be unsustainable. It was further held in that case that when the sample of opium along with the seal remained with the seizing officer of the Excise Department for two weeks and he sent the sample to the chemical analyst without producing the same before the Magistrate or keeping the same in the custody of the Officer-in-charge of the nearest police station, the possibility of tampering with the seal cannot be ruled out and conviction cannot be sustained. IN the case of Kanduri Sahoo v. State of Orissa, reported in (1990) 11 OCR 469, it has been held by this Court that the onus is on the prosecution to satisfy by leading acceptable evidence that the seized article was in safe custody and the failure to do so would entitle the accused to the benefit of doubt. IN the case of Thandi Ram v. State of Haryana, reported in (1999) 3 JT (SC) 231 : (2000 Cri LJ 588), the Apex Court referring to two earlier decisions of that Court, viz. , State of Punjab v. Balbir Singh, (1994) 2 JT (SC) 108 : (1994 Cri LJ 3702) and Mohinder Kumar v. State of Panaji, Goa, AIR 1995 SC 1157 : (1995 Cri LJ 2074), have held that for non-compliance of the provisions of Sections 50, 52, 55 and 57 of the Act, conviction cannot be sustained. ( 9 ) IN view of the decisions referred to above and on analysis of the evidence on record, the inevitable conclusion will be that the conviction of the appellant cannot be sustained and he will be entitled to acquittal and the impugned judgment is liable to be set aside. ( 10 ) IN the result, the Criminal Appeal is allowed. The conviction of the appellant under Section 18 of the N. D. P. S. Act and the sentence inflicted thereunder in the impugned judgment dated 18-1-1995 passed by the Sessions Judge, Balangir in Sessions Case No. 121 of 1994 are set aside. The appellant is found not guilty of the charge and is acquitted. He be set at liberty forthwith if his detention is not required in connection with any other case.