JUDGMENT : B.K. Patel, J. - Deceased-Appellant Rama Bahadur Pandey had filed this appeal assailing the legality of the impugned judgment and order passed in S.T. Case No. 247/8 of 1993-94 by the learned Additional Sessions Judge, Sambalpur, convicting him under Sections 18 and 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for short the 'N.D.P.S. Act') and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/ -, in default to undergo rigorous imprisonment for six months, u/s 18 and to undergo rigorous imprisonment for five years and to pay fine of Rs. 50,000/ -, in default to undergo rigorous imprisonment for three months, u/s 20(b)(i) of the N.D.P.S. Act. After the death of the deceased- Appellant during pendency of the appeal, his near relatives have been granted leave to continue the appeal. 2. The prosecution case is that the deceased-Appellant was a licensed bhang dealer. On 02.11.1993, P.W.13 the Sub-Divisional Police Officer, Jharsuguda received information that he was in unlawful possession and engaged in sale of huge quantity of ganja, bhang and opium in his house. Having observed the formalities prescribed for search, P.W.13 in presence of P.W.1 the Tahasildar of Rengali, P.W.3 the Assistant Conservator of Forest of Rengali, P.Ws.6 and two independent witnesses, P.W.8 the S.l. of Police of Rengali Out Post and P.W.11 the Officer-in-charge of Katarbaga Police Station conducted raid of the house of deceased-Appellant. 261.7 Kg. of ganja, 46.5 Kg. of bhang and 445 grams of opium as well as cash amounting to Rs. 5,68,412.55 p. recovered on search from the house of the deceased-Appellant were seized. P.W.2 the S.I. of Excise of Rengali being called identified the recovered contrabands to be bhang, ganja and opium. Services of P.W.9 a photographer was availed for taking photographs of the recovered articles. P.W.12 the Superintendent of Police, Sambalpur who arrived at the spot supervised the search and seizure. P.W.13 prepared sample packets of the seized ganja, bhang and opium and drew up F.I.R. Ext.7 at the spot. The seized articles and sample packets were kept in safe custody. P.W.11 registered the case and P.W.13 continued with the investigation in course of which witnesses were examined. Sample contraband packets were sent for chemical examination to the Regional Forensic Science Laboratory, Sambalpur. The seized articles and sample packets were kept in safe custody. P.W.11 registered the case and P.W.13 continued with the investigation in course of which witnesses were examined. Sample contraband packets were sent for chemical examination to the Regional Forensic Science Laboratory, Sambalpur. On 04.01.1994 P.W.13 made over charge of investigation to P.W.4 the Additional Superintendent of Police, Sambalpur who on completion of investigation submitted charge-sheet against the deceased-Appellant. 3. The deceased-Appellant pleaded denial to the charge framed against him for commission of offences under which he was convicted. His plea in course of examination u/s 313 of the Code of Criminal Procedure was that only Bhang and cash amounting to Rs. 5,68,412.55 were recovered from his house. 4. In order to substantiate the charge prosecution examined fourteen witnesses and also relied upon material exhibits M.Os. I to IV and documents marked Exhibits 1 to 13. P.Ws.1 to 4, 6, 7, 8 to 13 have already been introduced. P.Ws.5 and 10 were independent witnesses and P.W.14 was a police constable. P.Ws.6 and 7 as well as P.Ws.5 and 10 did not support the prosecution. Also, P.Ws.9, 10 and 14 are not material witnesses. The trial Court, in recording the judgment and conviction, relied mainly upon the evidence of material witnesses P.Ws.1, 3, 4, 8, 11, 12 and 13 as well as material objects produced in Court and chemical examination report received from the Laboratory. Though no oral evidence was adduced by the defence, documents marked Exhibits X series, Y and A to D were relied upon by the deceased-Appellant. 5. While assailing the impugned judgment and order, it was submitted by the learned Counsel for the substituted Appellants that admittedly deceased-Appellant was residing in his house along with family members including adult son. It was strenuously contended that the evidence adduced by the prosecution is too vague and sketchy to conclude that any contraband was found to be in exclusive possession of the deceased-Appellant. There is no evidence that the deceased-Appellant was engaged in sale of any contraband under the Act. It was further argued that not only there was inordinate delay in producing sample packets as well as balance quantity of seized contrabands in Court which remained unexplained but also prosecution singularly failed to establish that what was examined in the Laboratory was seized from the possession of the deceased Appellant. It was further argued that not only there was inordinate delay in producing sample packets as well as balance quantity of seized contrabands in Court which remained unexplained but also prosecution singularly failed to establish that what was examined in the Laboratory was seized from the possession of the deceased Appellant. It was also argued that the Investigating Police Officer has failed to comply with the mandatory provisions to be followed under the Act. It was further argued that P.W.13, who claimed to have conducted search and seizure, himself took up investigation which circumstance renders the prosecution vulnerable. Learned Counsel appearing for the State supported and defended the impugned judgment and order. 6. It appears that the deceased-Appellant and his family members were residing as tenants in the house of their landlord P.W.5. P.W.5 testified that he had initially let out only two rooms to the deceased-Appellant. Deceased-Appellant occupied those rooms for 12 years prior to the occurrence. However, six years prior to the occurrence P.W.5 let out three other rooms for the occupation of the deceased-Appellant's married son. P.W.5 deposed to have been called by police in course of search to the house of deceased-Appellant. He testified that nothing was recovered from the deceased-Appellant's shop room and that police opened lock of the bed room. They entered the bed room but did not search the bed room. It is in the evidence of P.W.5 that deceased-Appellant's son was married and 30 years old and that he was residing separately in the rooms subsequently let out to the deceased-Appellant. P.W.1 the Tahasildar of Rengali Tahasil claimed to have witnessed the search and seizure. According to him, the deceased Appellant opened the lock upon which they entered inside the house. It was deceased's shop-cum-residence. In a side room of his house, ganja and bhang were stacked in small paper packets tied by jute twine. From the shop-cum-residence room, huge cash was recovered. After weighment and seizure, paper packets were put inside the gunny bags and tin boxes, and thereafter sealed. P.W.1 again deposed that some opium was also seized from the deceased Appellant's house. This witness said that the shop was an encroached verandah and again deposed that the verandah was not enclosed to the road side. According to him, the shop-cum residence consisted of abovesaid small verandah and one room adjoining to the east of the verandah. P.W.1 again deposed that some opium was also seized from the deceased Appellant's house. This witness said that the shop was an encroached verandah and again deposed that the verandah was not enclosed to the road side. According to him, the shop-cum residence consisted of abovesaid small verandah and one room adjoining to the east of the verandah. On the back side of that residence room, there was an open Courtyard. Towards the north of the shop-cum-residence, three rooms were situated in one row in east-west direction. Out of said three rooms the seized articles were found in one room which was the middle room. Said room had no connection, i.e., no door, to the residence. P.W.2 the S.I. of Excise testified in course of his cross examination that the house of the deceased-Appellant consisted of his bed room and shop room. This witness, who deposed to have identified the seized ganja, bhang and opium on being requested by police, testified in his cross-examination that there were 10 to 12 paper packets and 10 to 12 gunny bags containing the seized articles and nothing else was there. P.W.3 the Assistant Conservator of Forest testified that when they entered inside the residence of the deceased-Appellant, in the house they found huge quantity of ganja, bhang and opium. Cash was recovered from the shop room and the adjoining residence room. According to this witness, the house of the deceased-Appellant consisted of the shop room, the bed room and kitchen. From the shop room, weighing balance, weight and the wooden cash box were seized. Those were the only articles seized from the shop room. The wooden box was containing some cash. The balance cash was seized from the bed room and nothing else was seized from the bed room except the opium which was also seized from the bed room. According to P.W.8 the S.I. of Police of Rengali Out Post, at first, they entered the shop room which was lying open. From shop room they went to bed room through the connecting door which was also lying open. Deceased-Appellant's son came when the raid was going on. From the shop room, some opium, some ganja and some bhang powder were recovered. Bhang was kept in some plastic bags, ganja was kept in some polythene packets and opium was kept in a small Amul Spray tin container inside the shop room. Deceased-Appellant's son came when the raid was going on. From the shop room, some opium, some ganja and some bhang powder were recovered. Bhang was kept in some plastic bags, ganja was kept in some polythene packets and opium was kept in a small Amul Spray tin container inside the shop room. Except P.W.13 no police officer searched the shop room. P.W.8 expressed his inability to say even by approximation about the number of packets or the quantity recovered from the shop room. According to him, there was about 2 to 3 kgs. of bhang and 2 to 3 kgs. of ganja in the shop room. There were about three packets of ganja and three packets of bhang. In course of cross-examination, this witness further testified that he was present when search was made on side room where from tin boxes containing ganja and bhang were recovered. Such side room was not connected with the bed room or shop room. He further testified that three in boxes and some bags were recovered from the side room. According to him, cash was recovered from the bed room. Though P.W.11 the officer-in-charge of Katarbaga P.S. testified in his cross-examination that seized opium was found in a tin container, he expressed his inability to say the specific place or the specific room from which opium was recovered and also to say as to what articles were recovered from which room. P.W.12 the Superintendent of Police, Sambalpur deposed that cash was found in rice bags and tin containers etc. in the bed room. In course of cross-examination, P.W.12 expressed his inability to say exactly from which room opium was recovered and even to say that if by the time he reached the spot, the Amul diba containing opium had already been recovered. P.W.12 deposed that some narcotic products were brought out from the godown portion after his arrival. According to him, the godown portion adjoined to the right side of the residential portion of the deceased-Appellant if one stood facing the front side road. The godown portion consisted of three rooms situated in one line with interconnecting doors like train compartments. Wall intervening between the residential portion and godown portion did not contain any door. It was stated by P.W.12 that residential room of the children of the deceased-Appellant situated towards the left of the residential room of the deceased Appellant. The godown portion consisted of three rooms situated in one line with interconnecting doors like train compartments. Wall intervening between the residential portion and godown portion did not contain any door. It was stated by P.W.12 that residential room of the children of the deceased-Appellant situated towards the left of the residential room of the deceased Appellant. Their bed rooms were not connected by any door. P.W.13 the Sub-Divisional Police Officer of Jharsuguda who conducted the search as well as the investigation testified that he recovered the Amul Spray diba containing opium from the shop room of the deceased-Appellant. At paragraph-23 of his cross examination P.W.13 asserted that no other place except from a single place, opium was seized. However, he was constrained to admit in the next sentence that in his spot visit report he had mentioned that three rooms in a row situated on the north of the residential house of the deceased-Appellant were used as godown and from those rooms huge quantities of ganja, opium and bhang were seized. At paragraph 35 of his cross-examination P.W.13 deposed that nothing except cash was recovered from the deceased-Appellant's bed room. 7. None of the witnesses referred to above is rustic or layman. They include Magistrate as well as officers of Excise, Forest and Police Departments. P.W.12 and 13 are superior Police Officers. However, their evidence as regards the actual places from which ganja and opium were recovered as well as circumstances attending upon search and seizure is not consistent. Their evidence does not conclusively establish that it was the deceased-Appellant who was found to be in possession of opium or ganja. There is no evidence to support the allegation that the deceased-Appellant was engaged in sale of any narcotic. The house consisted of several rooms. Prosecution has led positive evidence to the effect that initially deceased-Appellant was occupying only two rooms as a tenant under P.W.5. He took another three rooms for occupation of his son's family subsequently which rooms were described by the witnesses as side rooms or godown. Evidence is not consistent regarding the type of containers in which contrabands were found. It is also noticed that P.W.12 an officer of the rank of Superintendent of Police expressed his inability to say exactly from which room opium was recovered. Evidence is not consistent regarding the type of containers in which contrabands were found. It is also noticed that P.W.12 an officer of the rank of Superintendent of Police expressed his inability to say exactly from which room opium was recovered. Such being the state and nature of evidence adduced by the prosecution, it is not at all found safe to rely upon such evidence as the basis of the finding that the deceased-Appellant was found to be in possession of or sold any contraband as alleged. 8. Apart from factum of recovery of contraband, it is for the prosecution to establish and cover the entire path by adducing cogent, reliable and unimpeachable evidence that the seized articles were properly sealed and there was no chance of tampering with the packets during the retention of those packets at the police station and the same was the very articles produced before the Magistrate for sending them to the Chemical Examiner. Prosecution has to establish proper sealing and safe custody of the seized articles so that articles examined in the Laboratory shall be relatable to the article seized. It is the burden of the prosecution to prove that the seized article was sent for chemical analysis by adducing unimpeachable evidence and no scope for suspicion should be left in the matter. Criminal trial does not admit any gap or missing link. In this connection, decisions in Valsala v. State of Kerala (1993) 6 OCR (SC) 457, Sink Patricia v. State (1994) 7 OCR 277 and Bhimasen Sahoo v. State of Orissa (1997) 12 OCR 443 may be referred to. 9. In the present case P.W.13 deposed to have sealed the sample packets and the balance quantities of seized contrabands and to have handed over the seal to P.W.5. However, P.Ws.3 and 8 stated that P.W.13 himself kept and took away the seal. P.W.11 was unable to say what P.W.13 did with the seal. P.W.12 vaguely stated that the seal was handed over to the "witnesses". P.W.13's assertion to have kept the seal with any of the witnesses is not borne out by the evidence on record. In course of cross-examination, P.W.13 admitted that he mentioned in the case diary that he handed over the sealed packets to the "witnesses" and that he did not mention the name of the witnesses to whom the seal was handed over. In course of cross-examination, P.W.13 admitted that he mentioned in the case diary that he handed over the sealed packets to the "witnesses" and that he did not mention the name of the witnesses to whom the seal was handed over. Also, P.W.13 categorically admitted that he did not take specimen impression of the seal on any paper or seizure list. It is also in the evidence of P.W.13 that he had not given direction for production of the seal on the date of production of sample before the Magistrate. It is surprising to note that P.W.13 testified that he did not know if the seal or specimen impression thereof was not produced before the Magistrate for verification. P.W.13 deposed that the seal used by him contained alphabets 'P', 'A' and 'S'. He admitted that he had not taken any acknowledgement or receipt from P.W.6 indicating that the seal was kept in his custody. P.W.12, Superintendent of Police, expressed his inability to say regarding the contents of the seal, or regarding the name of the witnesses to whom the seal was given, or as to whether any acknowledgement was taken from the witnesses, or if the impression of the seal was taken on any paper, or if the contents of the seal were noted. P.W.1 deposed that P.W.13 affixed the impression of the seal which contained his signature (initial), that the initial contained alphabet 'Y' and that other letter was not eligible. This witness being confronted with the signature contained in the gunny bags and box M.O.III expressed his inability to say if the seals contained in the packets and box were in the seal of P.W.13. P.W.13 himself deposed that his initial containing alphabet 'Y' as the first letter was not affixed on any of the seals. 10. There is absolutely no explanation for non-production of sample packets in Court till 6.11.93. The order dated 6.11.1993 passed by the learned S.D.J.M.(S), Sambalpur reads: I.O. of this case prayed to send the seized articles to RFSL, Ainthapali for C.E. Prayer of the I.O. is allowed. Send the seized article to RFSL, Ainthapali for C.E. Thus, it is obvious that neither the seal nor specimen impression thereof was produced before the learned Magistrate in order to facilitate verification and comparison when the sample packets were produced for onward transmission for chemical examination. Send the seized article to RFSL, Ainthapali for C.E. Thus, it is obvious that neither the seal nor specimen impression thereof was produced before the learned Magistrate in order to facilitate verification and comparison when the sample packets were produced for onward transmission for chemical examination. In such circumstances the assertion of sealing of sample packets and balance quantities of contrabands at the spot is rendered irrelevant. In view of the circumstances of non-production of the seal or specimen thereof and the unexplained and inordinate delay in production of the sample packets in Court, the prosecution is found to have utterly failed to establish that what was sent for chemical examination was recovered from the house of the deceased-Appellant. 11. There is absolutely no explanation as to why no direction was made by P.W.13 to P.W.11 till 6.11.1993 to send sample packets for chemical examination through S.D.J.M., Sambalpur. It is also pertinent to note that though direction was made by the S.D.J.M. to produce the sample packets in the Laboratory on 6.11.1993, it was only on 9.11.1993 the sample packets were produced in RFSL, Ainthapali. That apart it is also found that the balance quantities of seized articles were sent to the Court on 23.11.1993 by P.W.11. P.W.13 in course of cross-examination expressed his inability to say whether the articles produced in Court on 23.11.1993 contained the seals originally affixed by him at the time of seizure. P.W.11, in course of cross-examination, expressed his inability to say if the bags and box produced contained same articles that were seized. He categorically stated that he did not bring the seal with which sample packets were seized while producing sample packets in Court. Therefore, it may be unhesitantly observed that there is absolutely no proof regarding proper sealing and safe custody of the seized articles and sample packets which were dealt with in perfunctory manner. 12. As provisions under the Act confer wide power to the Investigating Officer to conduct search and seizure, procedure prescribed thereunder is to be strictly complied with. Provisions under Subsection (1) of Section 42 requires that the information obtained by an officer regarding commission of offence under the Act has to be taken down in writing. 12. As provisions under the Act confer wide power to the Investigating Officer to conduct search and seizure, procedure prescribed thereunder is to be strictly complied with. Provisions under Subsection (1) of Section 42 requires that the information obtained by an officer regarding commission of offence under the Act has to be taken down in writing. It is also obligatory on the part of the officer to record the grounds of belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, before entering into and taking search of any building etc. Sub-section (2) of Section 42 of the Act provides that information or grounds for his belief taken down in writing by an officer has to be sent within seventy two hours to such officer's immediate official superior. In the present case P.W.13 deposed to have entered the information and grounds of belief under Station Diary Entry No. 29 dated 2.11.93 and to have telephonically informed his immediate officer superior P.W.12 before proceeding to the spot. However, neither P.W.13 nor P.W.12 deposed regarding furnishing copy of Station Diary Entry to P.W.12 within the stipulated period. Therefore, prosecution has failed to prove compliance of mandatory provision under Sub-section (2) of Section 42 of the Act which by itself renders prosecution vulnerable. 13. Apart from the infirmities noted above, it is also pertinent to observe that in the present case P.W.13 who conducted search, effected seizure and lodged First Information Report, himself took up investigation. In order to ensure fair investigation, P.W.13 should not have been associated with the task of conducting investigation. Though investigation conducted by an officer who himself effected seizure or lodged First Informant Report may not be an illegality, precaution should be taken to ensure that investigation is not prompted by bias or prejudice. 14. In view of the discussions made above, the prosecution is found to have failed to establish the charge against the Appellant beyond reasonable doubt. The appeal is allowed and the impugned judgment and order are set aside. The deceased-Appellant is acquitted of the charge. Final Result : Allowed