JUDGMENT B.K. PATEL, J. — The Appellant, having been convicted for commission of offence under Section 20(b) (ii) (c) of Narcotic Drugs & Psychotropic Substances Act (for short ‘the Act’) & sentenced to undergo rigorous imprisonment for ten years & to pay a fine of Rs.1,00,0000 (Rupees one lakh only), in default to undergo rigorous imprisonment for two years, by the Learned Additional Sessions Judge-cum-Special Judge, Jajpur by Judgment & order passed in 2(a) C.C. No.01 of 2004, has preferred this appeal. 2. Prosecution case is as follows :- On 02.02.2004 P.W.8 Sub-Inspector of Excise along with P.W.7 Inspector of Excise & other excise personnel were performing patrolling. While at Chhatia Bazar P.W.8 received reliable infor¬mation at about 2.00 P.M. to the effect that the Appellant had stored ganja in his house. P.W.8 reduced the information into writing under Ext.5, got the veracity of the information verified & brought Ext.5 to the notice of P.W.7. Thereafter, P.W.8, & others proceeded to Appellant’s house where the Appellant was found to be in possession of a gunny bag containing ganja M.O.I. which he was shifting from his pucca house to another house having tile roof. P.W.8 detained the Appellant & called the witnesses P.Ws.2 & 5. Excise Officials disclosed their identities to the Appellant & expressed the intention of search his house. Before conducting search, Excise Officials gave their personal search before the Appellant & witnesses. An inventory list Ext.7 was prepared in respect of articles recovered from their posses¬sion. P.W.8 prepared the memo Ext.8 containing grounds of search & served a copy thereof to the Appellant. Upon search of the Appellant’s house, two more gunny bags containing ganja M.Os. II & III were recovered. On weightment M.O.I., II & III were found to contain 25 kilograms, 31 kilograms & 28 kilograms of ganja re¬spectively. P.W. 8 sealed the recovered gunny bags containing ganja by affixing paper slips & impressions of his brass seal. Thereafter, P.W.7 prepared seizure list Ext.6 on which specimen impression of his brass seal was affixed & arrested the Appellant after serving on him copy of memo Ext.9 containing grounds of arrest. Then he prepared spot map Ext.11 & recorded statements of the witnesses. P.W.8 affixed specimen impression of brass seal on a piece of paper Ext.13 which was kept in close paper cover Ext.12. Then he prepared spot map Ext.11 & recorded statements of the witnesses. P.W.8 affixed specimen impression of brass seal on a piece of paper Ext.13 which was kept in close paper cover Ext.12. P.W.8’s brass seal was kept with P.W.5 on execution of zimanama Ext.4/1 by him. P.W.8 brought the Appellant & seized articles to Cuttack. He handed over seized gunny bags to P.W.7 who kept the same in the Malkhana after making the entry Ext.14/1 under Malkhana register Ext.14. On 3.2.2004, Appellant & seized articles were produced in the Court of Special Judge, Jajpur & prayer was made to send samples of seized ganja for chemical examination. On being directed by the Special Judge, P.W.8 pro¬duced the seized gunny bags before the S.D.J.M., Jajpur. In presence of S.D.J.M., Jajpur seals affixed on the gunny bags were broken & sample quantities of ganja brought out from each of the gunny bags was kept separately in three packets. The sample packets were sealed by the S.D.J.M. Gunny bags containing remain¬ing quantity of ganja were also sealed with seal of the Court. Broken seals were kept in paper cover M.O.IV. The sample packets were produced before the Scientific Officer of State Drugs Test¬ing & Research Laboratory at Bhubaneswar along with S.D.J.M.’s forwarding letter Ext.15. On 4.2.2004, P.W.8 submitted prosecu¬tion report Ext.16 to P.W.7. In course of investigation, P.W.8 obtained sketch map with demarcation report of the spot Ext.3 prepared by Amin through Revenue Inspector P.W.4 & Additional Tahasildar P.W.3. The Appellant’s brothers P.W. 1 & 6 were also examined in course of investigation. Result of the examination of the contents of the sample packets was communicated to the Court under Chemical Examination Report Ext. 24 & the remaining quanti¬ty of ganja was returned in sealed cover M.O.V. by the Laborato¬ry. On completion of investigation charge sheet was submitted against the Appellant. 3. The Appellant took the plea of denial. 4. In order to substantiate the charge, prosecution exam¬ined the eight witnesses P.Ws. 1 to 8 referred to above apart from relying upon documents marked Exts. 1 to 24 & material exhibits M.Os. I to V. Appellant’s brothers P.W.1 & 6 as well as independent witnesses PWs.2 & 5 did not support the prosecution in any manner. Learned Trial Court placing reliance & upon refer¬ence to the evidence of P.Ws. 7 & 8 as well as P.Ws. 1 to 24 & material exhibits M.Os. I to V. Appellant’s brothers P.W.1 & 6 as well as independent witnesses PWs.2 & 5 did not support the prosecution in any manner. Learned Trial Court placing reliance & upon refer¬ence to the evidence of P.Ws. 7 & 8 as well as P.Ws. 3 & 4 held the prosecution to have established the charge against the Appel¬lant. 5. In assailing the impugned Judgment & order, it was argued by Learned Counsel for the Appellant that so far as the allegation of recovery of two gunny bags containing ganja from the house of the Appellant is concerned, the prosecution has singularly failed to establish that the same was recovered from exclusive possession of the Appellant. It was argued that there is not an iota of evidence indicating that the house in question was in exclusive possession of the Appellant. It is, rather, the admitted case of the prosecution that the appellant along with his brothers & their family members resided in the house. It was further argued that evidence relating to recovery of a gunny bag containing ganja from the Appellant is discrepant. Materials on record indicate that the Appellant was with P.W.8 much before the stated time of recovery & seizure. On the basis of such submissions, it was argued that evidence of P.Ws.7 & 8 does not constitute a firm basis to sustain the finding that any contra¬band was recovered from the possession of the Appellant. It was also argued that P.W.8’s evidence does not indicate that the allegedly seized articles were properly sealed & kept in safe custody till produced in Court. It was contended that prosecution should have ruled out the possibility of tampering with seized articles by leading cogent evidence to the effect that the arti¬cles were properly sealed at the spot & the brass seal was kept in the custody of independent witness. In ‘the absence of such evidence it shall not be safe to infer that what was examined in the Laboratory was recovered from the possession of the Appel¬lant. Learned Counsel for the Appellant also contended that the prosecution has failed to establish compliance of provisions under Sections 42, 52, 55 & 57 of the Act by the investigating ‘officer. In ‘the absence of such evidence it shall not be safe to infer that what was examined in the Laboratory was recovered from the possession of the Appel¬lant. Learned Counsel for the Appellant also contended that the prosecution has failed to establish compliance of provisions under Sections 42, 52, 55 & 57 of the Act by the investigating ‘officer. Lastly, it was contended that P.W.8 himself, having conducted search, effected seizure & arrested the Appellant, should not have proceeded with the investigation in order to ensure fair play & impartiality. In support of his contentions Learned Counsel for the Appellant relied upon the decisions reported in State of West Bengal & Ors. v. Babu Chakraborty (2004) 29 OCR (SC) 378, Anadi Charan Parida v. State (1997) 12 OCR 268 Lingaraj Mishra v. State (1995) 8 OCR 264, State of Punjab v. Balbir Singh & Ors (1994) 7 OCR (SC) 283, Krushna Dora v. State (1994) 7 OCR 590, P. Simanchal Patra v. State1 (1995) 9 OCR 308, Laxman Mahapatra v. State of Orissa (1996) 11 OCR 523, Purna Chandra Suar v. State of Orissa2 (2000) 19 OCR 225, State of Orissa v. Laxman Jena (2002) 23 OCR (SC) 656, Bhagaban Swain & Anr. v. State3 (1995) 4 Crimes 481 , State of Rajasthan v. Gurmail Singh4 2005 (1) Crimes 346 (SC), Abhimanuu Jena v. State (1997) 13 OCR 268, Iswar Prasad Mahatab Das v. State of Orissa (1999) 17 OCR 359, Nathiya & Anr. v. State 1992 (1) Crimes 537 , Bhima Gouda v. State of Orissa 1997 (12) OCR 203, Megha Singh v. State of Haryana AIR 1995 SC 2339 , Bhola Ram Kushwaha v. State of Madhya Pradesh 2001 Cr. L.R. (SC) 52, Bhaskar Kumar Karan@ Bhaskar Chandra Karana v. State (2001) 20 OCR 113 . In reply, Learned Counsel for the State submitted that Learned Trial Court has assigned cogent reasons in support of the findings recorded in the impugned Judgment which is immune from interference. 6. It is the case of prosecution that Appellant was resid¬ing together with his brothers P.Ws. 1 & 6. P.W.8 says that during search of the house he recovered two gunny bags M.Os. II & III from the south-west corner of the room. 6. It is the case of prosecution that Appellant was resid¬ing together with his brothers P.Ws. 1 & 6. P.W.8 says that during search of the house he recovered two gunny bags M.Os. II & III from the south-west corner of the room. P.W.7 says that the pucca house of the Appellant consisted of only one room & from the south-west corner of the room they recovered two gunny bags containing ganja. However, spot map Ext.11 prepared by P.W.8 reveals the spot house to be consisting of three adjacent rooms on the north & three adjacent rooms on the south intervened by a passage. In order to establish Appellant’s occupation over the spot house P.W.8 deposes to have got the house demarcated by P.W.4. However, P.W.4 himself does not say to have demarcated the house. Accordingly P.W.4, as per direction of the Tahasildar, Amin Judhistra Nayak demarcated the Appellant’s house & prepared sketch map Ext.3. In his cross-examination P.W.4 categorically states that he was not present at the time of demarcation. No Amin has been examined as a witness by the prosecution. Sketch map Ext.3 prepared by Amin was forwarded to P.W.8 by Additional Tahasildar P.W.3 under forwarding report Ext.2. A plain reading of Ext.2 indicates that the land on which spot house stands is recorded jointly in the names of Appellant & his brothers. Thus, not only there is no evidence on record to indicate that room from which gunny bags M.Os. II & III were recovered was in exclu¬sive possession of the Appellant but also evidence of P.Ws. 7 & 8 as regards the house from which M.Os. II &III were recovered is discrepant. Appellant’s brothers P.Ws. 1 & 6 categorically depose that they along with the Appellant were residing in one house. In such circumstances even if the presence of Appellant at the time of search & recovery is believed, Appellant’s mere presence does not establish ownership or possession. In order to establish charge under Section 20 (b) of the Act, it is obligatory on the part of the prosecution to prove by cogent & reliable evidence that the Appellant was in exclusive possession of the contraband articles. In the absence of such evidence, there is no scope to hold that gunny bags containing ganja M.Os. II & III were recov¬ered from the Appellant’s possession. In the absence of such evidence, there is no scope to hold that gunny bags containing ganja M.Os. II & III were recov¬ered from the Appellant’s possession. In this context, decisions in Anadi Charan Panda v. State (1997) 12 OCR 268, Lingaraj Mishra v. State (1995) 8 OCR 264 & Krushna Dora v. State (1994) 7 OCR 590 may be referred to. 7. In his deposition at paragraph-11, in course of cross-examination, P.W.8 admits that he received information regarding storage of ganja by the Appellant while performing patrol duty at Chhatia in between 3 P.M. to 5 P.M. However, in the same para¬graph he deposes that they reached near the house of Appellant at about 3 P.M. & that seizure was effected between 3 P.M. to 5 P.M.. P.W.7 deposes in his cross-examination that they left Chhatia Bazar at about 2.40 P.M. & that they had not met the Appellant before 3 P.M. At paragraph-4 of his deposition of P.W.8 testifies that before search he had served in writing the grounds of search under written memo Ext.8 prepared at the spot to the Appellant. Ext.8 in which signatures stated to have been appeared by the Appellant appears, time has been mentioned to be 2.30 P.M. That apart, it has been mentioned in Ext.8 that P.W.8 ‘searched the building/place/& conveyance’ of the Appellant without a search warrant. Use of past tense in Ext. 8 would indicate that by 2.30 P.M. house had already been searched. In such circum¬stances, the time of seizure of Ext.8 having been mentioned to be at 2.30 P.M., the assertion made by P.Ws. 7 & 8 to have found the Appellant to be in possession of gunny bags M.O.I. which he was shifting from one house to another at 3 P.M. becomes shaky & hence, unreliable. That apart, in course of cross-examination in his deposition at paragraph-11 P.W.8 further says that he had prepared seizure list Ext.6 prior to the house search & after the detention of the Appellant with M.O.I. Ext.6 is a composite seizure list in respect of gunny bags M.O.I. as well as M.Os. II & III. Therefore, preparation of seizure list Ext.6 prior to the house search renders the prosecution case of seizure of two gunny bags on house search unacceptable. 8. P.Ws. II & III. Therefore, preparation of seizure list Ext.6 prior to the house search renders the prosecution case of seizure of two gunny bags on house search unacceptable. 8. P.Ws. 7 & 8 depose that brass seal seized by P.W.8 for sealing the gunny bags was kept in the custody of P.W.4. However, P.W.4 neither produces the brass seal in Court nor supports such assertion. At no point of time brass seal was produced in Court. Entire case record does not indicate that while taking sample from seized gunny bags from the Court, seals affixed in the gunny bags were compared with specimen impression of the brass seal affixed on the seizure list Ext.6 or Ext.13. P.W.8 deposes to have kept the gunny bags with P.W.7 till produced in Court. There is no explanation as to why seized articles were not handed over to the Officer in-charge of local police station for safe custody in accordance with provisions under Section 55 of the Act. In such circumstances, prosecution is also found to have failed to adduce cogent evidence regarding safe custody of the seized articles for which it would be unsafe to conclude that what was examined in the Laboratory was recovered from the possession of the Appellant. In this connection decisions in Puma Chandra Suar v. State of Orissa (2000) 19 OCR 225, State of Rajasthan v. Gurmail Singh 2005 (1) Crimes 346 (SC) & Abhimanyu Jena v. State (1997) 13 OCR 268 may be referred to. 9. In Megha Singh v. State of Haryana AIR 1995 SC 2339 , it has been observed as follows : “We have also noted another disturbing feature in this case. P.W.3, Siri Chand, head Constable arrested the accused & on search being conducted by him a pistol & the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged & the case was initiated. He being complainant should not have proceeded with the investiga¬tion of the case. P.W.3, Siri Chand, head Constable arrested the accused & on search being conducted by him a pistol & the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged & the case was initiated. He being complainant should not have proceeded with the investiga¬tion of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation & examined witnesses under S.161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair & impartial investigation.” In State of Orissa v. Managobinda Sahoo, ILR (2009) I Cut¬tack 606 this Court, relying upon decision of the Supreme Court in Jamuna Chaudhary & Ors. v. State of Bihar, (1974) 3 SCC 774 , has held that for the purpose of fair & impartial investigation, it must be ensured that the investigation is carried out by a person who is absolutely impartial, unbiased & unmotivated. The Rule of law makes it unthinkable to allow a witness to a crime to be the investigator into the said crime. Therefore, the require¬ment of investigating Officer to bring out “the real unvarnished truth” would never be possible by the Investigating Officer who is also a witness. In Nathiya & another v. State : 1992 (1) Crimes 537 , Rajasthan High Court has deprecated the practice of investigation of a case under the Act by the selfsame person who made recovery of contraband. 10. In the present case not only P.W.8 but also P.W.7 actively participated in the search & recovery operation. In fact P.W.7 goes to the extent of asserting that he was “the Commanding Offi¬cer of the Patrolling Team”. P.W.8 was the person who conducted the search & allegedly recovered gunny bags M.Os. I, II & III. Therefore, investigation of the case by P.W.8 himself also ren¬ders the charge against the Petitioner vulnerable. 11. In view of discussion made above, prosecution is found to have failed to establish the charge against Appellant beyond reasonable doubt. The Appellant is entitled to benefit of doubt & acquittal. Accordingly, the appeal is allowed. Impugned Judgment is set aside. If the Appellant is in custody, he be set at liber¬ty forthwith unless he is required to be detained otherwise. Appeal allowed.