JUDGMENT : B.P. Das, J. - The Appellant in this appeal has challenged the order passed by the 2nd Additional Sessions Judge, puri, in S.T. No. 27/12 of 1993 convicting him u/s 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, the Act) and sentencing him to undergo rigorous imprisonment for ten years and also to pay a fine of rupees one lakh, in default, to undergo rigorous imprisonment for one more year. It may be stated here that The Appellant is now aged about 72 years and has already spent more than ten years, and four months in jail custody. 2. Briefly stated, the prosecution case is that P.W. Section 3 and 4, who were respectively the Sub-Inspector of Excise and Constable of Excise, were on patrolling duty on 19.6.1992 at the Balugaon Railway Station. On arrival of Palasa-Purin train on platform No. 3 at about 8 A.M., P.W. 3 got information that the accused-appellant was coming with a bag-load of opium poppy dust. Immediately thereafter, P.W. 3 found the accused coming with a gunny bag on his head. He detained the accused and called two witnesses, i.e., P.Ws. 1 and 2, to that place and asked the accused as to whether he intended to be searched by him at the spot or in presence of a Gazetted Officer. P.W. 3 also served a written notice (Ext. 3) on the accused showing his intention and offer wherein the accused puthis signature as well as the L.T.I. When the accused expressed his desire to be searched by P.W. 3 at the spot, the latter after giving his personal search to the witnesses in presence of the accused, searched the accused and brought the gunny-bag from the accused from which it was found that the same contained opium poppy capsules. On weighment, the opium poppy capsule was found to be 15 kgs. P.W. 3 the took out 100 gms. of opium 'poppy capsules from the gunny bag and prepared a sample packet and seized the opium poppy capsules in the gunny bag in presence of the witnesses as per the seizure list Ext, 1/1 in which the accused put his signature and the L.T.I. The witnesses also put their signatures on the same. The gunny bag containing the recovered opium poppy capsules (M.O.I) was sealed with paper seal. The gunny bag containing the recovered opium poppy capsules (M.O.I) was sealed with paper seal. P.W. 3 also sealed the sample quantity kept in a polythene bag by paper wrapper (Ext. 2/1). The witnesses put their signatures on the seizure list as well as on the paper seals on the gunny bag as well as sample packet. 3. P.W. 3, after examining the witnesses, arrested the accused and on the same day produced him along with the seized contraband article and the seizure list in the court of the J.M.F.C, Banpur, with a requisition for forwarding the sample contraband article for chemical examination. As per the direction of the court, P.W. 4 was entrusted to carry Ext. 2/1 to the State Drug Testing Laboratory, Bhubaneswar. Ext. 5 is the command certificate issued by P.W. 3 to P.W. 4 in that regard. Ext.6 is the copy of the forwarding report of the Magistrate. On 20.6.1992, P.W. 3 submitted a report to the Inspector of Excise, Bhubaneswar, regarding the incident of search, seizure, etc. Ext. 8 is the report of the Chemical Examiner of State Drug Testing Laboratory, which confirmed that the sample was opium poppy capsules. On completion of investigation, P.W. 3 submitted the prosecution report on the basis of which cognizance was taken and the accused was put on trial. 4. Four witnesses were examined on behalf of the prosecution to bring home the charge. The prosecution also relied upon several documents Exts. I to 8 and M.O.s. I and II. 5. The plea of the accused is that he is a Coolie by profession and was travelling in the Palsasa-Puri train. After the train reached Balugaon station, a person sitting in the same compartment shouted for a Coolie and he volunteered to carry his luggage on payment. When he was going with the gunny bag of that person on the platform, police stopped him and enquired about the contents of the gunny bag. In reply the accused-appellant stated that he was carrying the gunny bag of a passenger. 6. When he was going with the gunny bag of that person on the platform, police stopped him and enquired about the contents of the gunny bag. In reply the accused-appellant stated that he was carrying the gunny bag of a passenger. 6. The trial court looking into the evidence on record came to the conclusion that the accused was in conscious possession of the contraband when the same was seized and found the accused to be punishable u/s 18 of the Act and thereby sentenced The Appellant to undergo R.I. for ten (10) years and also to pay fine one lakh rupees, in default of which the convict shall suffer R.I. for a term of one year more. 7. Learned Counsel for The Appellant challenges the order of conviction mainly on three grounds, namely: (i) there is violation of the mandate of Section 52-A; (ii) there is no evidence in regard to conscious possession of the contraband by the accused. (iii) So far as presumption of culpable mental state of the accused is concerned, the same can also be derived from the evidence of the prosecution. It is pertinent on the part of this Court to first take up all the three issues and see whether the counsel for The Appellant is able to satisfy the Court regarding all these points. Section 52-A of the N.D.P.S. Act deals with the seized narcotic drugs and psychotropic substances. Clause (c) of Sub-section (2) of Section 52-A provides as follows: xxx (c) allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. 8. P.W. 3, the Sub-Inspector of Excise, in his evidence has stated that the gunny bag containing the seized article and also the paper packet containing the sample quantity were paper-sealed by him. M.O.I is the opium poppy capsules found in the gunny bag with the paper slip pasted on it. He has further stated that Ext. 2/1 is the paper packet with the paper slip with which he had paper-sealed the sample quantity. It is further stated by him that as per Ext.4 he made a prayer, before the J.M.F.C., Banpur to forward the sample packet for chemical examination of the seized article. He has further stated that Ext. 2/1 is the paper packet with the paper slip with which he had paper-sealed the sample quantity. It is further stated by him that as per Ext.4 he made a prayer, before the J.M.F.C., Banpur to forward the sample packet for chemical examination of the seized article. P.W. 4, the Excise Constable, during his examination in chief has stated that the seizure list was prepared by P.W. 3. P.W. 4 has categorically stated that P.W. 3 produced the accused as well as the seized article before the J.M.F.C. and as per the orders of the J.M.F.C., the sample packet of the seized article was produced at the State Drug Testing Laboratory, Bhubaneswar. This statement of P.W. 4 contradicts the statement of P.W. 3, who is silent regarding production of seized materials before the J.M.F.C. This aspect of the evidence of P.Ws. 3 and 4 was dealt with by the trial Court in para 12 of the judgment wherein the trial Court held that xxx The evidence on record shows P.W. 3 sealed the sample packet and the balance quantity separately by use of paper seals, and without any delay produced the articles in court. In such circumstances, P.W. 3 is not required to produce the articles before the Magistrate for extracting sample out of the same in presence of the Magistrate. xxx 9. This finding is contrary to the evidence on record because on perusal of the lower Court record. I find that on the date of production of the accused before the J.M.F.C, i.e. on 19.6.1992, the following orders were passed by the J.M.F.C. Accused Hrushi Behera, S/o. - Late Kalia Behera, Vill- Kuhudi Nuasahi, PS- Tangi, Dist-Puri is forwarded in custody being arrested by S.I. of Excise, Balugaon along with forwarding report and seizure list. Seen the forwarding report and seizure list. The accused complains of no ill-treatment while he was in custody. 10. The aforesaid order of the learned Magistrate does not disclose anything to indicate that the sealed packet was produced before the Magistrate with the seal in perfect order or interact and there is also nothing to show that the Investigating Officer sought for the permission of the Magistrate for sending the seized articles for chemical examination. 10. The aforesaid order of the learned Magistrate does not disclose anything to indicate that the sealed packet was produced before the Magistrate with the seal in perfect order or interact and there is also nothing to show that the Investigating Officer sought for the permission of the Magistrate for sending the seized articles for chemical examination. That apart, as already stated, there is no evidence to show that the sealed cover was physically produced before the Magistrate as claimed by the prosecution. In these premises, no presumption can be drawn that the materials were produced with seals intact and the Magistrate also found the same in original position. In this respect, Learned Counsel for The Appellant draws my attention to a decision of this Court reported in (1997) 12 OCR 443, Bhimsen Sahoo v. State of Orissa. But the finding of the trial Court in this regard as transpires from para 18 of the impugned judgment held as follows: 18. Also, in view of the provisions contained in the N.D.P.S. Act, the possession of contraband by the accused having been proved beyond reasonable doubt and the same having been admitted by the accused, the Court had to presume not only the offence to have been committed by the accused u/s 54, but also it is obligatory on the part of the Court to presume culpable mental state of the accused u/s 35. Such presumption of conscious possession can be rebutted by the accused by proving beyond reasonable doubt the absence of any such knowledge: Though it is urged by the Learned Counsel for the accused by placing reliance upon decisions reported in Man Singh Vs. Delhi Administration, 1977 C.L.R 376 (Prafulla Kumar Panda v. State) and 1983 C.L.R. 233 (Kabi alias Bidyadhar Samal v. State of Orissa), that defence plea can be established on the basis of reasonable explanation or preponderance of probabilities the observations in the decisions cited by the Learned Counsel are not applicable to cases under the N.D.P.S. Act in view of the clear provision u/s 35 that in order to rebut the presumption of culpable mental state the defence plea has to be proved beyond reasonable doubt. 11. In this regard, it is profitable to quote Section 35 of the N.D.P.S. Act. 11. In this regard, it is profitable to quote Section 35 of the N.D.P.S. Act. 35, Presumption of culpable mental state -(1) In any prosecution for an offender under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purpose of this Section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 12. The trial Court while discarding the argument advanced by the counsel for The Appellant observed that as the accused has not adduced any evidence to disprove his' conscious possession, his attempts to seek support for his plea from P.Ws. 1 and 2 fails due to inherent infirmities in the evidence of these two witnesses to claim any credence to their version., Let us have a look at the evidence of P.Ws. 1 and 2 who are the independent witnesses. P.W. 1 in his statement has stated that he had seen the accused carrying a gunny bag on his head and the excise personnel apprehending him. During cross-examination, he has stated that when the train stopped at the Balugaon station, he noticed a person with a gunny bag shouted for a coolie and at that point of time, the accused volunteered to carry the gunny bag. P.W. 2 who is also an independent witness stated that he was travelling with him in the same compartment in the train. Seen The Appellant and another man travelling in the same compartment and on reaching Balugaon station, the man with gunny bag shouted for a Cool i.e. The Appellant offered to carry the same and on the way he was stopped by the police and thereafter the other formalities started. P.W. 1 was declared hostile by the prosecution and he was cross-examined and during the course of his cross-examination, he has stated that he has not stated before the S.I. of Excise that the accused was travelling in the compartment in which he was coming to Balugaon. P.W. 1 was declared hostile by the prosecution and he was cross-examined and during the course of his cross-examination, he has stated that he has not stated before the S.I. of Excise that the accused was travelling in the compartment in which he was coming to Balugaon. Even if the evidence of P.W. 1 is discarded, there is no difficulty in looking into or considering the evidence of P.W. 2 who still remains as prosecution witness and has not been declared hostile by the prosecution and cross-examined in terms of Section 154 of the Evidence Act and he is the only independent eye-witness of the occurrence and has stated categorically that he has seen this man and knew him earlier at Balugaon station area where he used to work as a Coolie. This aspect has been totally overlooked by the trial Court. That apart, there in nothing brought out from the mouth of the said P.W. 2 that he has any interest in the case nor is there anything in the evidence even to infer that P.W. 2 is an interested witness. 13. My attention was drawn to a decision in the case of Maniklal Acharjee v. State of Assam. reported in Crimes 1988 (1) wherein it was held as follows: 9. The next question which arises for consideration is whether the Courts below have applied the wrong test while rejecting the evidence of P.W. 6. P.W. 6 is a prosecution witness. Therefore his version is the version of the prosecution. If the prosecution intended to reject the evidence of P.W. 6, he could have been declared hostile. But, in the present case, the witness has not been declared hostile by the prosecution. There was also no cross-exhumation to indicate that he had interest in the case. The Courts below, therefore, rejected the evidence of P.W. 6 by applying wrong test. 14. There is nothing to disbelieve the evidence of P.W. 2 that The Appellant was working as a Coolie and the prosecution has also not come up with the case beyond reasonable doubt that the opium poppy capsules recovered from the gunny bag are within the conscious possession of the accused-appellant. 15. 14. There is nothing to disbelieve the evidence of P.W. 2 that The Appellant was working as a Coolie and the prosecution has also not come up with the case beyond reasonable doubt that the opium poppy capsules recovered from the gunny bag are within the conscious possession of the accused-appellant. 15. So far as presumption of culpable mental state is concerned, I may refer to a decision of the Apex Court reported in (2001) 18 OCR (SC) 512 Abdul Rashid Ibrahim Mansuri v. State of Gujarat wherein it has held as follows: 21. No doubt, when The Appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in Sub-section (2) as "beyond a reasonable doubt." If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then The Appellant is not entitled to acquittal. However, if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt dispelled. Even so, it is for the accused to dispel any doubt in that regard. 22. The burden of proof cast on the accused u/s 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that Appellant could not have had the knowledge or the required intention, the burden cast on him u/s 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. 16. 16. The finding of the trial Court in this regard is contrary to the dictum of the Apex Court as stated above. 17. Taking all these aspects into consideration, it cannot be said that the prosecution has proved its case against The Appellant beyond all reasonable doubts. Moreover, from the evidence of P.W. 2, there is nothing to indicate that The Appellant was in conscious possession of the contraband materials. Therefore, the judgement and order of the trial Court is set aside and The Appellant is acquitted. He be set at liberty forthwith if his detention is not required in any other case. The Criminal Appeal is accordingly allowed. Final Result : Allowed