JUDGMENT (CAV) Hemant Kumar Srivastava, J.--The above stated sole appellant was convicted by the IVth Additional Sessions Judge-cum-Special Judge. Sitamarhi in N.D.P.S Trial No. 23 of 2000/08 of 2001 for the offence punishable under Section 20 of N.D.P.S. Act and sentenced to undergo rigorous imprisonment for four years and also rupees five thousand was imposed upon him as fine and in default of payment of fine, he was ordered to undergo rigorous imprisonment for six months by the judgment of conviction and sentence order dated 10.05.2001. 2. The brief fact giving rise to file this criminal appeal is that PW 5, Atnu Dutta, the then officer in charge of Sursand Police Station recorded his self statement on 10.10.1999 at 07:55 a.m. to this effect that on the same day at about 07:00 a.m. he got confidential information that an smuggler was carrying ganja from Nepal and was going to Sitamarhi by bus. He entered the aforesaid confidential information as Sanha No. 169 and along with chowkidar 2/3, Laxmi Paswan and chowkidar 2/16, Rajeshwar Rout reached at Sursand Chowk. He further stated in his self statement that while he was waiting at Sursand Chowk, at about 07:35 a.m. Ruby Bus bearing registration No. BPK 267 came from Bhitha More and reached at Sursand chowk. He along with other police officials boarded in the aforesaid bus and noticed that in the middle of the aforesaid bus one person was sitting having an attaichi in his hand and he was very perplexed. He went there and asked his name upon which he disclosed his name as Ram Prakash Giri and when he enquired about the articles kept in the aforesaid attaichi, the aforesaid person did not give any satisfactory answer and after that in presence of two independent witnesses he searched the aforesaid attaichi and recovered 10 kg. ganja worth rupees fifty thousand kept in two separate plastic packets. The aforesaid person did not give any documents relating to the aforesaid ganja and disclosed that the aforesaid ganja was being carried by him from Nepal. He seized the aforesaid ganja in presence of independent witnesses and handed over the copy of the aforesaid seizure list to apprehended person. 3. On the basis of aforesaid written report, Sursand P.S. Case No. 156 of 1999 under Sections 22/23 of N.D.P.S. Act was registered and accordingly, formal first information report was drawn up against the appellant. He seized the aforesaid ganja in presence of independent witnesses and handed over the copy of the aforesaid seizure list to apprehended person. 3. On the basis of aforesaid written report, Sursand P.S. Case No. 156 of 1999 under Sections 22/23 of N.D.P.S. Act was registered and accordingly, formal first information report was drawn up against the appellant. The matter was investigated by the Investigating Officer and after completion of investigation, charge-sheet for the offences punishable under Sections 22/23 of N.D.P.S. Act was submitted against the appellant. The cognizance of the offences was taken and subsequently the appellant was put on trial and accordingly, he was charged for the offence punishable under Section 20 of N.D.P.S. Act to which he denied and claimed to be tried. 4. In course of trial, altogether, seven prosecution witnesses were examined and prosecution also got exhibited signature of PW 2 on seizure list as Exhibit-1, signature of PW 3 on seizure list as Exhibit 1/1 , seizure list as Exhibit-2, self recorded statement of PW 5 as Exhibit-3 and report of excise chemical examiner as Exhibit-4. The statement of appellant was recorded under Section 313 of the Cr PC in which he reiterated his innocence and, specifically, stated that while he was returning from relative of his father he was caught by the police. One defence witness was also examined on behalf of the appellant. 5. Learned trial Court having relied upon the testimony of prosecution witnesses coupled with documentary evidences available on the record passed the impugned judgment of conviction and sentence order in the manner as stated above. 6. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that the mandatory provisions of N.D.P.S. Act were not complied with in the instant case and the seized article was not sealed in accordance with the provision of N.D.P.S. Act and furthermore, neither seized attaichi nor remaining part of seized articles were produced before the trial Court. He further submitted that according to PW 5, having got confidential information he entered sanha in police station but the aforesaid sanha was also not brought on the record in course of trial and, therefore, adverse inference would be drawn against the prosecution under Section 114(G) of Evidence Act. He further submitted that according to PW 5, having got confidential information he entered sanha in police station but the aforesaid sanha was also not brought on the record in course of trial and, therefore, adverse inference would be drawn against the prosecution under Section 114(G) of Evidence Act. He relied upon a decision reported in 2001 Criminal Law Journal 116 in which the informant of the aforesaid case got an information to this effect that accused of the aforesaid case was having brown sugar in his pant's pocket and after that he made entry to the aforesaid information. In course of trial of the aforesaid case, the aforesaid entry was proved as Exhibit P/13 but no entry was found in respect of accused of the aforesaid case. 7. Learned counsel appearing for the appellant also relied upon a decision reported in 2000 Criminal Law Journal 3544 in which a Bench of this Court held that failure to seal and sign the seized articles or sample is fatal to the prosecution case. Continuing his submission, he submitted that in the instant case. PW 5 stated at para 14 of his cross-examination that he did not seal either attaichi or seized ganja on the place of occurrence and the aforesaid attaichi and seized ganja were brought to police station where the attaichi and seized ganja were kept in malkhana and furthermore. PW 5 stated at para 15 of his cross-examination that the seized attaichi and ganja was handed over to PW 5 on the same day at 08:30 a.m. Learned counsel for the appellant submitted that PW 6 stated that he received seized ganja on 10.10.1999 but he did not mention the aforesaid fact in his case diary and furthermore, he stated at para 7 of his cross-examination that on 14.10.1999, he went to Patna to get examine seized ganja and before sending the seized ganja for chemical examination he had sealed the seized ganja but he did not mention the quantity of the aforesaid ganja which had been sealed by him. Learned counsel for the appellant submitted that statements of PW 5 and PW 6 reveal that seized ganja was kept in thana malkhana without making any seal and it appears that the seized ganja was sealed on 14.10.1999. Learned counsel for the appellant submitted that statements of PW 5 and PW 6 reveal that seized ganja was kept in thana malkhana without making any seal and it appears that the seized ganja was sealed on 14.10.1999. So, the aforesaid circumstance creates doubt about the story of prosecution case and raises a suspicion as to whether actual seized articles had been sent for chemical examination or not. 8. Learned counsel for the appellant further submitted that learned trial Court mentioned at para 30 of the impugned judgment of conviction that the lock of the attaichi was opened by the appellant and the aforesaid circumstance suggests that the seized ganja was recovered from conscious possession of the appellant but the aforesaid fact was not put before the appellant when he was examined under Section 313 of the Cr PC. He further submitted that recording of statement of an accused under Section 313 of the Cr PC is not mere a formality and. therefore, the aforesaid material cannot be used against the appellant in convicting him. In support of his contention, he referred a decision reported in (2009) 4 SCC 200 in which it has been held by Apex Court of this country that questioning of accused under Section 313 is not an empty formality. Learned counsel for the appellant submitted that since the seized articles were not sealed in accordance with Section 55 of N.D.P.S. Act, the benefit should go in favour of the appellant. To fortify his above stated contention. he referred a decision reported in 2002 (4) PLJR 787 in which it has been held by Division Bench of this Court that if proper seizure and sealing are not made of the articles seized under the provision of N.D.P.S. Act, the benefit of it must go to accused. 9. On the other hand. learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that PW 5 has proved the factum of recovery and Exhibit-2 suggests that 10 kg. ganja kept in two different packets were recovered from possession of the appellant and the aforesaid seized articles were found ganja by the chemical examiner which is evident from perusal of Annexure-4 and, therefore, prosecution successfully proved its case and there is no ground to interfere into the impugned judgment of conviction and sentence order. 10. ganja kept in two different packets were recovered from possession of the appellant and the aforesaid seized articles were found ganja by the chemical examiner which is evident from perusal of Annexure-4 and, therefore, prosecution successfully proved its case and there is no ground to interfere into the impugned judgment of conviction and sentence order. 10. As I have already stated that altogether ten witnesses were examined by the prosecution in course of trial but prosecution witnesses No.1, 2, 3 and 4 have been declared hostile and they have not supported the prosecution case except PW 2 who stated to this extent that police had taken his signature on plain paper. PW 2 proved his signature on seizure list as Exhibit-1. Similarly, PW 3 also proved his signature on seizure list as Exhibit-1/1 but he has not supported the story of recovery of ganja from possession of the appellant. PW 4 stated nothing and denied to have made statement before the police. 11. PW 5 is informant of this case and he stated that on 10.10.1999 he got confidential information that one person was carrying ganja by bus and the aforesaid confidential information was entered by him as sanha No. 169 dated 10.10.1999. He further stated that when he reached at Sursand Chowk, a bus came there and after that he entered into the aforesaid bus. He further stated that he noticed one person who was sitting with attaichi and having seen the police party the aforesaid person became perplexed. He further stated that he enquired from the aforesaid person and in presence of PW 2 and PW 3 he got opened the aforesaid attaichi and found two packets rapped with rope and plastic. He further stated that when the aforesaid packets were opened. 10 kg. ganja was recovered from the aforesaid packets. He prepared seizure list in presence of the aforesaid witnesses and took their signatures and also handed over copy of seizure list to appellant after having taken his left thumb impression on the seizure list. This witness proved seizure list as Exhibit-2. On being cross-examined by the defence, he admitted that seized ganja and attaichi were not before him at the time of his deposition and similarly, sanha No. 169 dated 10.10.1999 was also not before him. This witness proved seizure list as Exhibit-2. On being cross-examined by the defence, he admitted that seized ganja and attaichi were not before him at the time of his deposition and similarly, sanha No. 169 dated 10.10.1999 was also not before him. At para 9 of his cross-examination, he stated that the aforesaid attaichi was locked and the lock of the aforesaid attaichi was opened by the appellant himself through key but he did not mention in seizure list that at the time of seizure the aforesaid attaichi was locked. He further stated at para 11 of his cross-examination that the weight of the ganja was given by him on the basis of his guesswork. At para 14 of his cross-examination, this witness stated that he did not seal the attaichi and ganja in police station rather the attaichi and ganja were kept in thana malkhana and at para 5 of his cross-examination, he admitted that the aforesaid malkhana was not sealed by him and on the same day at 08:30 a.m. he handed over the seized ganja and attaichi to Investigating Officer. 12. PW 6, Motilal Pd. is Investigating Officer. He stated that on 10.10.1999, he took charge of investigation, inspected the place of occurrence and recorded the statement of witnesses but before completion of investigation, he handed over charge of investigation to Mr. Nawal Kishore Verma (PW 7) due to his transfer. On being cross-examined, he stated at para 5 of his cross-examination that he received seized ganja on 10.10.1999 but he did not mention the aforesaid fact in his case diary and furthermore, at para 7 of his cross-examination, he stated that on 14.10.1999, he went Patna to get examine the seized ganja after sealing the said seized ganja but he did not mention in his case diary as to how much quantity of seized ganja was sealed by him. He further admitted that he did not carry specimen seal of malkhana to Patna nor he mention the aforesaid fact in his case diary. 13. PW 7, Nawal Kishore Verma is second Investigating Officer of this case. This witness stated that he took charge of investigation on 17.12.1999 and went to Patna to obtain chemical examination report but he was told that the aforesaid report would be sent to Court directly and accordingly, at the direction of his higher official he submitted charge-sheet. 14. 13. PW 7, Nawal Kishore Verma is second Investigating Officer of this case. This witness stated that he took charge of investigation on 17.12.1999 and went to Patna to obtain chemical examination report but he was told that the aforesaid report would be sent to Court directly and accordingly, at the direction of his higher official he submitted charge-sheet. 14. On careful scrutiny of the statements of prosecution witnesses, it is apparent that the seized articles were not sealed on the place of occurrence and PW 5 along with appellant came to police station after making the alleged recovery. PW 5 kept the seized articles in malkhana without taking any attempt to seal the seized articles. Furthermore, I find that the alleged recovery is said to have been made at 07:40 a.m. on 10.10.1999 and PW 5 stated that he recorded his self statement at 07:55 a.m. on 10.10.1999 at Sursand Chowk and furthermore. PW 5 stated that he handed over seized ganja and attaichi to PW 6 but before handing over the seized articles he had not taken any step to seal the aforesaid seized articles rather he had kept the aforesaid articles in thana malkhana which had also not been sealed by the PW 5. The PW 6 stated that he received seized ganja on 10.10.1999 but he did not mention the aforesaid fact in his case diary and on 14.10.1999, he took the seized ganja to Patna for chemical examination after sealing the seized ganja. Therefore, the aforesaid fact clearly suggests that seized articles were kept lying in thana malkhana from 10.10.1999 to 14.10.1999 and between the aforesaid period no step was taken either by PW 5 or by PW 6 to seal the seized articles. Furthermore, it has come in the evidence of PW 5 that the malkhana, in which the seized articles had been kept, had also not been sealed. It is also apparent from the evidence of prosecution witnesses that prosecution could not succeed to establish this fact as to how much quantity of seized ganja was taken as sample for chemical examination and what happened to remaining seized articles because the remaining seized articles were not produced before the trial Court in course of trial. It is also apparent from the evidence of prosecution witnesses that prosecution could not succeed to establish this fact as to how much quantity of seized ganja was taken as sample for chemical examination and what happened to remaining seized articles because the remaining seized articles were not produced before the trial Court in course of trial. Therefore, the aforesaid laches on the part of PW 5 and PW 6 are fatal to prosecution case and create a doubt as to whether the actual material, which is said to have been recovered from possession of the appellant, had been sent for chemical examination or not and the benefit of aforesaid laches shall go in favour of the appellant. 15. Furthermore, I find that according to PW 5, when he enquired from the appellant about the attaichi, the aforesaid attaichi was locked and the lock of the attaichi was opened by the appellant through key of the aforesaid attaichi but admittedly, no key was seized by the PW 5 nor there is any material to show this fact that again the aforesaid attaichi was locked either by PW 5 or the appellant. The learned trial Court at para 30 of impugned judgment of conviction came to conclusion that since the lock of attaichi was opened by the appellant it would be presumed that he was in conscious of the aforesaid attaichi but admittedly, the aforesaid fact was not put before the appellant when his statement under Section 313 of the Cr PC was recorded and, therefore, only on the basis of aforesaid circumstance it cannot be presumed that the appellant was in conscious of the seized attaichi. 16. On the basis of aforesaid discussions, I find that prosecution failed to prove this fact that seized articles were properly sealed in accordance with the provisions of N.D.P.S. Act and in my view, the failure on the part of prosecution to prove proper sealing of the seized articles is fatal to the prosecution case. No doubt, Section 55 of N.D.P.S. Act is directive in nature and noncompliance of Section 55 of N.D.P.S. Act is not ipso facto fatal to the prosecution case but after considering the totality of present case. No doubt, Section 55 of N.D.P.S. Act is directive in nature and noncompliance of Section 55 of N.D.P.S. Act is not ipso facto fatal to the prosecution case but after considering the totality of present case. I am of the definite opinion that failure on the part of PW 5 and PW 6 to seal the seized articles properly in accordance with the provision of N.D.P.S. Act is fatal to prosecution case and the appellant is entitled to get the benefit of doubt. 17. Thus, this criminal appeal is allowed and the impugned judgment of conviction and sentence order dated 10.05.2001 are hereby set aside. The appellant is on bail. He is discharged from the liability of his bail bonds. Appeal allowed.