JUDGMENT : B.P. Das, J. - The Appellant in this case has been convicted for commission of offence u/s 22 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (for short "the N.D.P.S. Act"). Though the accused faced his trial on the charge u/s 21 of the N.D.P.S. Act for possessing 17 grams of brown sugar in contravention of the provisions of the N.D.P.S Act and the Rules framed thereunder, the Addl. Sessions Judge, Bhubaneswar found him guilty of the offence u/s 22 of the N.D.P.S. Act and sentenced him thereunder to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for one year. 2. The case of the prosecution, bereft of unnecessary details is that on 16.8.1996, P.W. 2, Inspector of Excise, E.I. and E.B., Unit-I, Cuttack came to Bhubaneswar along with other Excise staff and in course of their patrol duty, P.W. 4 Radhu Bhoi got reliable information about storing of huge quantity of brown sugar in the house of accused at Kabari Sahi. The said information was reduced to writing and made over to the Inspector of Excise, who was also on patrol duty, with a request to permit him and his staff to make a search. Accordingly, search was conducted and in course of search of the accused two grams of brown sugar was found inside the right side of his pocket. During search of the house of the accused 15 grams of brown sugar was found under the almirah of the accused. Accordingly, seizure list was prepared. A copy of the same was supplied to the accused and after observing all the formalities he was forwarded to Court. 3. The plea of the defence is one of complete denial. 4. The prosecution has examined as many as six witnesses in order to prove its case. The defence examined one witness, Ranjan Mohanty as D.W. 1 in its support. One Kishore Chandra Rath, Junior Scientific Officer-cum-Asst. Chemical Examiner, who tested the contraband articles, has been examined as Court witness. Several documents were exhibited on behalf of the prosecution. 5. During course of trial P.W. 1 did not support the prosecution as regards recovery and seizure of the contraband article from the house of the accused for which his evidence was discarded by the trial Court. Chemical Examiner, who tested the contraband articles, has been examined as Court witness. Several documents were exhibited on behalf of the prosecution. 5. During course of trial P.W. 1 did not support the prosecution as regards recovery and seizure of the contraband article from the house of the accused for which his evidence was discarded by the trial Court. Relying upon the evidence of other prosecution witnesses, the trial Court found the aforesaid charge to have been proved and accordingly convicted The Appellant and sentenced him in the manner as indicated above. 6. Learned Counsel for The Appellant argued that there are serious contradictions in the evidence of the prosecution witnesses which create a doubt on the factum of search and seizure and that apart the statutory mandate of Section 50 has not been complied with. It is further argued that the material, which was alleged to have been seized, has not been put to chemical examination even though the case of the prosecution is that brown sugar was seized from The Appellant in course of search, the chemical examination report indicates that the articles were found to contain salts of barbital which were considered to be psychotropic substance. 7. During the course of argument, my attention was drawn to the evidence of PWs. 3 and 4. PW. 3 was the Sub-Inspector of Excise, who assisted P.W. 4 in the search and seizure. In his evidence P.W. 3 categorically stated that accused was sitting on the Varendah of his house. Shri Bhoi being assisted by P.W. 3 and other staff searched the house of the accused in his presence and recovered one green colour Gopal Jarda Tin Dibba, kept under a steel almirah in the living room of the accused, i.e., the first room and observing all the formalities of search. P.W.4 searched the person of the accused and recovered one Jerry packet from the right side pocket of the wearing pant of the accused, which contained brown sugar. As per the said P.W. 3 from his 13 years of service experience, from its colour, texture and smell he could identify it to be brown sugar. The total brown sugar seized from the accused and from his house is 17 grams. P.W. 4 in his statement has stated that after reaching the house of the accused he called the neighbouring witnesses to witness the search and seizure. The total brown sugar seized from the accused and from his house is 17 grams. P.W. 4 in his statement has stated that after reaching the house of the accused he called the neighbouring witnesses to witness the search and seizure. The accused was inside his house by the time they reached near his house. P.W. 4 has further stated that he gave his personal search and took the personal search of his staff in presence of the accused. He asked the accused if he wanted to be searched before a gazetted officer or a Magistrate, to which he declined, and on being searched a packet containing 2 grams of brown sugar was recovered from the right side pant pocket of the accused. Thereafter the house of the accused was searched and one Gopal Zardain Dibba was recovered which was kept under a steel almirah in the middle of the house which was being used as bed room, wherefrom 15 grams of brown sugar was found. The sketch may, Ext. 9, indicates that the entire house complex consists of six room, 3 rooms belonged to one Godabari Sahu and the other three rooms belonged to Appellant Kashinath Sahu, whereas it is stated by P.W. 3 that brown sugar was recovered from the first room. P.W. 4 in his evidence stated that it was recovered from the middle room of the house, which was used as bed room, as shown in the sketch map. That apart, the case of The Appellant is that mandatory provisions of Section 51 have not been complied with because The Appellant was not given a chance to be searched in presence of a gazetted officer and the document prepared as per Ext. 6 is a manufactured one at a subsequent stage, after obtaining the signature of the accused on a blank paper. The same was also the plea of the accused in his statement recorded u/s 313 Cr.P.C. 8. In this regard my attention was drawn to the notice Ext. 6 issued to The Appellant in terms of Section 50 of the N.D.P.S Act, which has been scribed in Oriya language by one Radhu Bhoi, Asst. Sub-Inspector of Excise, whereby The Appellant was called upon to give option whether he would be searched before a gazetted officer or a Magistrate or by the Excise Officer himself. 6 issued to The Appellant in terms of Section 50 of the N.D.P.S Act, which has been scribed in Oriya language by one Radhu Bhoi, Asst. Sub-Inspector of Excise, whereby The Appellant was called upon to give option whether he would be searched before a gazetted officer or a Magistrate or by the Excise Officer himself. After the signature of the Sub-Inspector of Excise, the Sub-Inspector again wrote in his own hand, which is admitted in his deposition before the Court below, stating "I do not want to be searched by any other person. You can search me and my house as per law". Again the aforesaid Oriya version has been translated to English. It is written 'On receipt of the notice accused Kashinath Sahu wilfully agreed to be searched by me in presence of witnesses. " Thereafter, the original signature of Kashnath Sahu has been exhibited as Ext. 6/1. From the tenor of writing, it appears that the entire thing was written by the Excise Sub-Inspector himself. The signature of the accused finds place at the bottom of the aforesaid document and that too in English which indicates that the accused is an educated person. To this, P.W. 4 has explained in his evidence saying that he bad written the contents of Ext. 6 to the dictation of the accused. He put his signature below the said writing after reading the same. It is worthwhile to mention that Ext. 6 is a carbon copy of the original document, except the signature of the accused. 9. In cross-examination P.W. 4 has stated that he had not mentioned in Ext. 6 the fact that the contents of Ext. 6 were written by him on the request of the accused, and that the said Ext. 6 was not sent to Court along with the forwarding report. Non-compliance with the mandatory provisions of the N.D.P.S. Act cannot vitiate the evidence as to search. But certainly it is enough to create cloud of doubt whether at all there was compliance of the mandatory provision or the documents were subsequently manufactured. In order to get an answer, it would be profitable to look at the judgment of the trial Court dealing with the afore said aspect. As I find, the Addl. Sessions Judge proceeded with an impression as if the accused gave it in writing. In order to get an answer, it would be profitable to look at the judgment of the trial Court dealing with the afore said aspect. As I find, the Addl. Sessions Judge proceeded with an impression as if the accused gave it in writing. At page 23 of the judgment the trial Court has observed. In the instant case P.W. 4 before conducting search informed the accused that he was entitled to be searched in presence of a gazetted officer or a Magistrate and also obtained from him in writing vide Ext. 6 that he was so informed and the accused waived his right to be searched in presence of those authorities and wanted to be searched by him (P.W. 4) (emphasis supplied) This finding is contrary to the evidence on record. There is no writing of the accused in Ext. 6, barring signature at the bottom of the document, and it is admitted that the entire writing in the said Ext. 6 was by P.W. 4. That apart, the counsel for The Appellant takes me through the charge and laws my attention to the fact that the charge was framed for the offence punishable u/s 21 of the N.D.P.S Act, which provides punishment for contravention in relation to manufactured drugs and preparations. But at the same time it is described on the charge head that accused was in illegal possession of 17 grams of brown sugar (psychotropic substance) which was found from his house at Nayapali. 10. Mr. Mohanty, Learned Counsel for The Appellant, draws my attention that as per the seizure list 17 grams of brown sugar was seized from the accused, two grams from his pocket and 15 grams from his house. That apart, my attention was drawn to Ext. 10, the forwarding report, from which it appears one gram of brown sugar wrapped in a paper packet covered with a cloth bag with the seal of the Court marked as Ext. A.-1 and one sealed paper packet containing one gram of brown sugar kept in a cloth bag with the seal of the Court marked as Ext.B-1 were sent to the Chemical Examiner, Govt. of Orissa, Excise Department and Deputy Drugs Controller, (R.P.T.), Orissa State Drugs Testing and Research Laboratory, Bhubaneswar for the purpose of chemical examination, specifically to find whether the samples (Ext. A/1 ) and (Ext. of Orissa, Excise Department and Deputy Drugs Controller, (R.P.T.), Orissa State Drugs Testing and Research Laboratory, Bhubaneswar for the purpose of chemical examination, specifically to find whether the samples (Ext. A/1 ) and (Ext. B/1) were brown sugar or not, and whether Exts. A/1 and B/1 came u/s 2(xvi)(d) of the N.D.P.S. Act. The aforesaid materials, as it appears, were received by the Asst. Examiner on 19.8.1996. The same were despatched on 17.8.96. Ext. 12 is the Chemical Examination report. It discloses that the samples did not pass identification tests for Diacetyle Morphine or its salts or preparation of Morphine or Diacetyle morphine as defined u/s 2(xvi)(d) and (e) of the N.D.P.S. Act. The report further discloses that on further test, the samples were found to contain salts of barbital as specified under Sl. 77 read with Sl. 32 of the Schedule and Section 2(xxiii) of the N.D.P.S. Act. 11. To this, Learned Counsel for the State clarified that for this reason only proceeding was initiated against The Appellant for the offence u/s 20-B of the N.D.P.S. Act. Later on, the charge was modified to Section 21 of the N.D.P.S. Act. Though The Appellant was charged u/s 21 of the Act, it ultimately ended in conviction for contravention in relation to psychotropic substances. 12. According to Mr. Mohanty, Learned Counsel for The Appellant, the evidence of Court witness No. 1 is very vital. He categorically stated that two sealed sample packets of brown sugar of the Court of the Sessions Judge, Puri, in S.T. No. 345 of 1996 were received in the Drugs Testing and Research Laboratory, Orissa for chemical examination on 22.8.96, whereas Ext. 6 indicates that the same were received by the Senior Scientific Officer on 19.8.1996. That apart, Learned Counsel for The Appellant draws my attention to column 5 of the Ext. 12, where the date of test/analysis is written to be 23rd of July, 1996. But during the evidence the Court witness No. 1 has stated that it was wrongly typed as 23rd of July, 1996. 13. Learned Counsel for The Appellant pointed out that when the samples were despatched on 17.8.96 and received by the Drugs Testing and Research Laboratory on 19.8.96, how could the same reach on 22.8.96 as stated by Court witness No. 1, who was the Junior Scientific Officer-cum-Asst. Chemical Examiner. 13. Learned Counsel for The Appellant pointed out that when the samples were despatched on 17.8.96 and received by the Drugs Testing and Research Laboratory on 19.8.96, how could the same reach on 22.8.96 as stated by Court witness No. 1, who was the Junior Scientific Officer-cum-Asst. Chemical Examiner. During cross examination C.W. No. 1 has stated that on the first day of examination he came to know that the contents of the sealed packets were not brown sugar. Therefore, he conducted several other tests on different dates and finally came to the conclusion that the same contained salt of barbital. 14. Learned Counsel for The Appellant pointed out, the way the Investigating officer (P.W. 14) has stated that he had received the samples from the Court of the S.D.J.M., Puri on 17.8.1996 and delivered the same to the State Drug Testing Laboratory on 19.8.96 as 18.8.96 was a holiday. The evidence of P.W. 4 and the evidence of C.W. No. 1 run contrary to each other regarding the date on which the samples actually reached the testing laboratory. That apart, mention of the date "23rd July 1996" is another factor which, according to the Learned Counsel for The Appellant creates grave doubt whether the articles which were allegedly seized from the house and pocket of the accused were at all put to chemical test or some other sample was tested and ultimately the same was found to be salt of barbital. In this regard the evidence of P.W.3 cannot be overlooked who categorically stated that, by his experience, from the smell and colour of the seized article, he could identify the same to be brown sugar. These are all discrepancies in the prosecution evidence. I do not dispute the contention of the State that illegality in the method and manner of initiation of search could not vitiate the evidence collected, but at the same time this Court cannot overlook the discrepancies in the prosecution evidence, so far as recovery of contraband article is concerned and the manner in which Ext. 6 was prepared. I have a grave doubt if at all Ext.6 was prepared at the spot by P.W. 4. The Appellant was never given opportunity to give option to be searched by a Magistrate or authorised gazetted officer. That apart, the chemical examination ultimately revealed that the material seized was something other than brown sugar. 6 was prepared. I have a grave doubt if at all Ext.6 was prepared at the spot by P.W. 4. The Appellant was never given opportunity to give option to be searched by a Magistrate or authorised gazetted officer. That apart, the chemical examination ultimately revealed that the material seized was something other than brown sugar. Again, another factor which creates doubt in the mind is about the correctness of the analys is report of the seized materials. 15. In view of the aforesaid discrepancies and anomalies, mostly due to doubt about the recovery of the contraband articles from the possession of The Appellant, the benefit of doubt should be given to the accused-appellant. Learned Counsel for The Appellant also raised the question of applicability of Section; "5 of the N.D.P.S. Act, the presumption of culpable mental state plene the seizure itself is doubtful, the question of applicability of Section 35 needs no consideration. 16. In the result, the impugned judgment of the Court below and the conviction and sentence of The Appellant ate set aside. The Appellant is acquitted of the charge. He be set at liberty forthwith, if his detention in custody is not required in connection with any other case. The Criminal Appeal is allowed. Final Result : Allowed