Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 150 (ORI)

Bayamani Mandinga v. State of Orissa

2016-02-23

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The appellant Bayamani Mandinga faced trial in the Court of learned Sessions Judge-cum-Special Judge, Koraput at Jeypore in Criminal Trial No. 154 of 2007 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act') for cultivating ganja plants and in possession of 31 kgs. of ganja and 149 numbers of cannabis plants without any authority or licence on 30.09.2007 at about 5.00 p.m. at village Baghamari under Laxmipur Police Station in the district of Koraput. The appellant was found guilty of the said charge and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for one year. 2. The prosecution case, in short, is that on 30.09.2007 at about 3.00 p.m., P.W.6 Abhiram Behera, who was the Sub-Inspector of Excise at Laxmipur along with his staff, Excise Inspector, Koraput, Excise Superintendent, Koraput, Excise S.I., Nandapur, police staff of Koraput at Laxmipur and Executive Magistrate, Koraput, all proceeded to village Baghamari to detect excise offences. They reached at village Baghamari at about 5.00 p.m. when P.W.6 got reliable oral information about illegal cultivation of hemp plants by the appellant in his Bari adjoining to the backside of his residential house. They also proceeded to the house of the appellant and on reaching there, they found that the appellant was watering hemp plants inside his fenced Bari. P.W.6 called two witnesses namely, Krupadan Kondhpan (P.W.1) of village Sutiguda and Sala Hikoka (P.W.2) of village Baghamari and in their presence, he searched the Bari of the appellant and during search, he recovered 149 numbers of hemp plants with height ranging from 1' to 8' having flowers, fruits and tops. Those plants were uprooted and kept in the spot Bari. During the search of the Bari, P.W.6 also recovered two polythene gunny bags containing ganja and on weighment of the ganja, it was found to be 11 kgs. and 20 kgs. P.W.6 seized the hemp plants as well as polythene bags containing ganja at the spot in presence of the witnesses and the Executive Magistrate under seizure list Ext.1. He collected two samples of hemp plants, each sample containing two hemp plants in presence of the witnesses. and 20 kgs. P.W.6 seized the hemp plants as well as polythene bags containing ganja at the spot in presence of the witnesses and the Executive Magistrate under seizure list Ext.1. He collected two samples of hemp plants, each sample containing two hemp plants in presence of the witnesses. He also collected two samples of ganja from each polythene bag, each sample containing 100 grams of ganja in presence of the witnesses. After the seizure, P.W.6 sealed the bulk ganja, bulk hemp plants, the sample ganja and sample hemp plants by paper seal affixing there over wax with impression of his personal brass seal. He obtained signatures of the witnesses on those sealed packets and also put his own signature. On 1.10.2007 P.W.6 produced all the seized articles along with sample packets before the Trial Court and also produced the appellant before him. As per the direction of the Special Judge, the J.M.F.C., Laxmipur sent the samples of hemp plant and ganja for chemical examination under Ext. 3 and thereafter P.W.6 received the report of the chemical analyser which indicated that the subject sample marked as "Ex.A1" & "Ex.B1" were found to be ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act and sample marked as "cl." was found to be hemp plant as defined under section 2(iv) of the N.D.P.S. Act. According to P.W.6, before making search of the Bari of the appellant, he made personal search of the appellant after obtaining his option of being searched in presence of a Magistrate but no incriminating materials were recovered from the possession of the appellant. After completion of investigation, P.W.6 submitted prosecution report against the appellant. 3. During course of trial, in order to prove its case, the prosecution examined six witnesses. P.W.1 Krupadan Kandhpan did not support the prosecution case, for which he was declared hostile. P.W. 2 Sole Hikoka also did not support the prosecution case, for which he was declared hostile. P.W.3 Bibekananda Sahu was the Revenue Officer-cum-Executive Magistrate, Koraput who is a witness to the seizure of hemp plants and ganja from the house premises of the appellant. P.W.4 Ganga Paikaray was A.S.I. of Excise, Narayanpatna who stated about the seizure of two bags of ganja as well as hemp plants from the Bari of the appellant. P.W.3 Bibekananda Sahu was the Revenue Officer-cum-Executive Magistrate, Koraput who is a witness to the seizure of hemp plants and ganja from the house premises of the appellant. P.W.4 Ganga Paikaray was A.S.I. of Excise, Narayanpatna who stated about the seizure of two bags of ganja as well as hemp plants from the Bari of the appellant. P.W.5 Subash Chandra Jena was the S.I. of Excise, Nandapur who accompanied the other Excise Officials to village Baghamari and stated about the search of the house of the appellant and seizure of ganja and hemp plants. P.W.6 Abhiram Behera was the S.I. of Excise at Laxmipur who not only conducted search and seizure of hemp plants and ganja but he is also the Investigating Officer. The prosecution exhibited four documents. Ext.1/1 is the seizure list, Ext.2/1 is the option of the accused, Ext.3 is the forwarding letter of the material objects and Ext.4 is the Chemical Examiner report. The prosecution also proved six material objects. M.O.I and M.O.II are the bulk ganja bags, M.O.III and IV are the sample covers, M.O.V is the bundle of ganja plants and M.O.VI is the sample bundle of plants. 4. The defence plea of the appellant was one of denial and it was pleaded that no ganja or hemp plants were seized from his house or Bari and a false case has been foisted against him. Neither any witness has been examined nor has any document been proved on behalf of the defence. 5. The learned Trial Court held that there was no necessity for P.W.6 to send the copy of the information as recorded in the Register C-1 to the immediate official superior since the Superintendent of Excise, Koraput who was the immediate official superior of P.W.6 was very much present in the raiding party. The learned Trial Court further held that since P.W.6 has recorded the reliable information in C-1 register maintained in his office after returning to his office, the requirement of section 42(2) of the N.D.P.S. Act has been complied with. The learned Trial Court further held that since P.W.6 has recorded the reliable information in C-1 register maintained in his office after returning to his office, the requirement of section 42(2) of the N.D.P.S. Act has been complied with. The learned Trial Court further held that the evidence of P.W.3 to P.W.6 coupled with the seizure list Ext.1 and from the fact of actual production of the seized bulk ganja and hemp plants in Court and proved as M.O.I to M.O.VI, it is established beyond any doubts that the bulk Ganja and the bulk hemp plants were recovered and seized from a fenced bari in which the appellant was found present alone and watering the hemp plants at the time of raid. The learned Trial Court further held that no malafideness or unreasonable interestedness of the official witnesses has been shown with regard to the search, recovery and seizure rather their evidence in the circumstances of the case seems to be cogent and trustworthy to accept the prosecution version that the bulk ganja and hemp plants were recovered from the possession of the appellant. The learned Trial Court further held that from the fact of watering of the hemp plants at the time of arrival of the raiding party, it is established that the appellant was in exclusive and conscious possession of the hemp plants and bulk ganja at the time of search of the Bari by excise police. The learned Trial Court further held that the mandatory provisions of section 50 of the N.D.P.S. Act are found to have been fully complied with in regard to the personal search of the appellant. The learned Trial Court ultimately held that the prosecution has proved the charge against the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act beyond all reasonable doubts. 6. Mr. Basudev Mishra, learned counsel appearing for the appellant strenuously argued that no documentary evidence has been seized in this case to prove the title or possession of the house and Bari in question from where the ganja and hemp plants were allegedly seized to be that of the appellant. 6. Mr. Basudev Mishra, learned counsel appearing for the appellant strenuously argued that no documentary evidence has been seized in this case to prove the title or possession of the house and Bari in question from where the ganja and hemp plants were allegedly seized to be that of the appellant. The learned counsel further urged that the evidence of the witnesses are discrepant with regard to the exact place from where ganja bags were seized and the mandatory provision of section 42(2) of the N.D.P.S. Act has not been complied with and the learned Trial Court has committed error of record in observing that the evidence of P.W.5 indicates that the Superintendent of Excise, Koraput was present in the raiding party at the time of search and seizure. The learned counsel further urged that in a case of this nature where the punishment is stringent and the evidence of the witnesses are discrepant in nature and the mandatory provisions are not complied with, it is a fit case where benefit of the doubt should be extended in favour of the appellant. Mr. Anil Kumar Nayak, learned Additional Standing Counsel on the other hand contended that since the reliable information was received while the raiding party was on transit, therefore it is not required to reduce the reliable information into writing and when the immediate Superior Officer of P.W.6 was very much present with him at the time of raid, there was no necessity again for P.W.6 to send the reliable information to his superior officer in writing and therefore, it cannot be said that there was any violation of the provisions under section 42 of the N.D.P.S. Act. The learned counsel for the State further urged that since the appellant was very much present in his house and was watering the hemp plants, it can be said that the contraband articles as well as hemp plants were seized from his conscious and exclusive possession and therefore the learned Trial Court was justified in convicting the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act. 7. 7. Adverting to the contentions raised at the Bar, it is evident that P.W.1 Krupadan Kandhapan as well as P.W.2 Sole Hikoka, the two independent witnesses have not supported the prosecution case but they were not declared hostile by the prosecution nor any questions were put to them by the prosecution after obtaining permission from the Trial Court as provided under section 154 of the Evidence Act. P.W.1 has stated that he put his signature on plain papers and he had not seen the seizure of Ganja and hemp plants and the appellant was not present at the time of his signature. P.W.2 has stated that nothing was seized by Excise staff in his presence and he, has not seen any seizure of Ganja or hemp plants and the accused was not present when his LTI were taken on some papers. He has further stated that the appellant had got no house or land at village Baghamari. Thus the evidence of P.W.1 and P.W.2 are in no way helpful to the prosecution. Law is well settled that in a case of this nature even if the independent witnesses do not support the prosecution case but the version of the official witnesses relating to search and seizure inspires confidence and found to be clear, cogent and trustworthy then the Court can consider the, same and adjudicate the guilt of the accused. Coming to the evidence of official witnesses, it is seen that P.W.3 who was the Revenue Officer-cum-Executive Magistrate, Koraput has stated that on 30.9.2007 in his presence the house and the premises of the appellant were searched by the Excise officials and Ganja plants were found planted in the house premises of the appellant which were counted and it came to 150 and from the house of the appellant about 25 to 30 kgs. of ganja were recovered in two bags, one weighed 20 kgs. and the other 11 kgs. He further stated samples from both were taken and kept in two separate covers and paper slips containing his Signature and, signatures of witnesses and others were taken. From the evidence of P.W.3, it is clear that he has not stated about the presence of the appellant, in the spot house when the raid was conducted. He further stated samples from both were taken and kept in two separate covers and paper slips containing his Signature and, signatures of witnesses and others were taken. From the evidence of P.W.3, it is clear that he has not stated about the presence of the appellant, in the spot house when the raid was conducted. He has further stated that no document regarding title and possession of the house and the Bari from where the bags and ganja plants were found were verified by the Excise officials. He further stated that all the documents were prepared in the Excise office at Laxmipur. P.W.4 Ganga Paikray was the A.S.I. of Excise, Narayanpatna and he has stated that when he along with his Senior Excise officials and Executive Magistrate came to village Baghamari, they found the appellant was watering ganja Plants in his bari and when P.W.6 Abhiram Behera, the S.I. of Excise gave his personal identity and asked the appellant as to whether he wanted to be searched in the presence of the Magistrate, the appellant opted for being searched in presence of the Magistrate. He further stated that in the house premises of the appellant, two bags of ganja were recovered, one weighed 20 kgs. and the other weighed 11 kgs. and samples were drawn from both the bags and kept under separate covers. He further stated that 149 numbers of ganja plants were also recovered and seized from the bari of the appellant. The evidence of P.W.4 that the appellant was watering ganja plants in his Bari has not been stated by P.W.3. The evidence of P.W.4 that option was given by P.W.6 to the appellant regarding search in presence of the Magistrate has also not been stated by P.W.3. P.W.4 has stated that he cannot say if documents of title or possession of the house and bari were examined by the S.I. of Excise. Coming to the evidence of P.W.5 Subash Chandra Jena, S.I. of Excise at Nandapur, he has stated that as per the direction of the Superintendent of Excise, Koraput, he accompanied the Excise staff, Laxmipur headed by Sri Abhiram Behera (P.W.6), S.I. of Excise, Laxmipur to village Baghamari under Laxmipur Police Station. He further stated that P.W.3 also accompanied them to village Baghamari from Laxmipur. It is pertinent to note here that P.W.5 has not specifically stated that P.W.4 accompanied them to the spot. He further stated that P.W.3 also accompanied them to village Baghamari from Laxmipur. It is pertinent to note here that P.W.5 has not specifically stated that P.W.4 accompanied them to the spot. P.W.5 has further stated that when they reached at village Baghamari, they found the appellant was giving water to ganja plants inside his fenced bari situated in the adjoining back side of his house. He further stated that on being called by the S.I. of Excise, the appellant went with them inside his house and then his house was searched in presence of the Executive Magistrate and two polythene bags containing ganja were recovered and on weighment, it was found to be 20 kgs. and other polythene bag weighed 11 kgs. P.W.5 has further stated that when they entered inside the Bari of the appellant, they found 149 numbers of ganja plants each grown to a height of around 7' to 8' were found standing. Those plants were uprooted and then sample were collected not only from each of the polythene bags containing ganja but also small bunch of sample ganja plants were also collected. The evidence of this witness regarding the presence of the appellant in the spot house at the time of raid has not been stated by P.W.3. No persons from the neighborhood has also been examined to prove the occupation of the spot house even though it is stated by P.W.5 that about 10 to 15 persons of the occurrence village were present near the spot house and bari at the time of recovery and seizure. P.W.5 has further stated that the gunny bags were found kept on the corner of the bed room of the appellant. Coming to the evidence of P.W.6 Abhiram Behera, S.I. of Excise, Laxmipur, it is found that he has stated that on 30.9.2007 when they reached village Baghamari at about 5 p.m., he received a reliable oral information about illegal cultivation of hemp plants by the appellant in his Bari adjoining backside of his residential house. P.W. 6 has stated about the search of the Bari of the appellant and recovery of 149 numbers of hemp plants. P.W. 6 has stated about the search of the Bari of the appellant and recovery of 149 numbers of hemp plants. He has further stated that during search of the Bari, he also recovered two polythene gunny bags containing ganja which is contradictory to the evidence of P.W.5 that the gunny bags containing ganja were found inside the bed room of the appellant. P.W.6 has further stated that after affixing the impression of his personal brass seal over the seized articles, he left the brass seal in the zima of the Executive Magistrate Sri Bibekananda Sahu (P.W.3) but P.W.3 has not whispered anything about taking zima of the brass seal from P.W.6. P.W.6 has further stated that before making search of the Bari of the appellant, he made personal search of the appellant after obtaining his option of being searched in presence of a Magistrate but P.W.3 is silent on this aspect. P.W.6 has further stated that on 10.12.2007, he made a requisition to the Tahasildar, Koraput for demarcation of the spot Bari in order to ascertain the ownership of the Bari but no reply was received from the Tahasildar. P.W.6 has further stated that after making necessary seizure and seal of the seized articles, he brought the same to his office and kept it in his office Malkhana on 30.9.2007 and produced those articles before the Special Judge, Jeypore on the next day but no Malkhana register has been proved in this case not the in-charge officer of Malkhana was examined. 8. Section 42(1) of the N.D.P.S. Act deals with the power of the empowered officer or authorized officer as mentioned in that section to effect entry, search, seizure and arrest without warrant or authorization. If any such officer has reason to believe either from personal knowledge or information given by any person regarding commission of offence relating to any narcotic drug, or psychotropic substance, or controlled substance which is punishable under the N.D.P.S. Act then he has to take it down in writing. Such procedure of taking down in writing has also to be followed by the officer where information relates to keeping or concealment of any document or other article which may furnish evidence of the commission of such offence in any building, conveyance or enclosed place. In between sunrise and sunset, such officer can enter into and search any such building, conveyance or place. In between sunrise and sunset, such officer can enter into and search any such building, conveyance or place. The section further provides that if the officer has reason to believe 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, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Recording of grounds of belief must indicate as to why the officer conducting search and seizure in between sunset and sunrise thought it proper not to obtain a search warrant or authorization. Ordinarily a search warrant or authorization should be obtained before making an entry or searching any build, conveyance or enclosed place at such time but the exception has been provided therein. Recording of grounds of belief is not mandatory if the search period is in between sunrise and sunset. Section 42(2) of the N.D.P.S. Act stated that if an officer takes down any information in writing under section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours, send a copy thereof to his immediate official superior. In the case of State of Punjab Vs. Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283, it has been held as follows:- "27. xxx xxx xxx xxx (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent, it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." In the case of State of West Bengal Vs. Babu Chakraborthy reported in (2004) 12 SCC 201 , it is hold that great significance has been attached to the mandatory nature of the provisions, keeping in view the stringent punishment prescribed in the Act. Great importance has been attached to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. Great importance has been attached to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. The failure to comply with section 42(1), proviso to section 42(1) and section, 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. In the case of Dilip and another Vs. State of M.P. reported in (2007) 36 Orissa Criminal Reports (SC) 170, it is held that the effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case. In the case of Rajender Singh Vs. State of Haryana, (2011) 50 Orissa Criminal Reports (SC) 217 : 2011 (2) OLR(SC) 735, it is held that the total non-compliance with the provisions sub-section (1) and (2) of Section 42 is impermissible and it vitiates the conviction. In the case of Karnail Singh Vs. State of Haryana reported in (2009) 44 Orissa Criminal Reports (SC) 183 : 2009 (2) OLR(SC) 628, it is held that the officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1), but if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. It is further held that the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period that is after the search, entry and seizure. The question is one of urgency and expediency. It is further held that while total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. Mr. Nayak, learned counsel for the State placed a decision of the Hon'ble Supreme Court reported in Sajan Abraham Vs. State of Kerala reported in (2001) 6 SCC 692 wherein it is held that in construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The Court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should, be examined with caution and, circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. However, before drawing such an inference, it should, be examined with caution and, circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. In that case, it was held that when P.W.3, the Head Constable got information with reference to the appellant only at about 7 p.m. that the, person is, selling injectable narcotic drugs near Blue Tronics Junction, Palluruthy, he proceeded to Palluruthy Police Station to give this information to his immediate superior, SI of Police, P.W.5. He found that P.W.5 along with his police party, who were on patrol duty coming, hence the said information was communicated thereby P.W.3 to P.W.5. Thereafter, P.W.5 along with his police party and P.W.3 immediately proceeded towards the place where the appellant was standing. Had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How P.W.5 could have recorded the information given by P.W.3 and communicated to the superior while he was on motion, on patrol duty, in the jeep before proceeding to apprehend him is not understandable. Had they not acted immediately, the appellant would have escaped. On these facts, the Hon'ble Court did not find any inference could be drawn that there has been any violation of Section 42 of the Act. Coming to the present case, P.W.6 has stated in the cross-examination that while in the morning of the fateful day, he along with his staff were on patrol duty in his locality, he got information from reliable sources about cultivation of hemp plants in different villages under his jurisdiction including village Baghamari and for that purpose, he made requisition to the police and Executive Magistrate and requested his higher officials to come to Laxmipur and assist him in detection of the offence of cultivating hemp plants by any person in the locality. No such written requisition has been proved in this case. P.W.6 has stated that the information against the appellant about the cultivation of hemp plants was received when they reached in village Baghamari. He states that information was subsequently entered by him in C-1 register in his office after return to his headquarters. No such written requisition has been proved in this case. P.W.6 has stated that the information against the appellant about the cultivation of hemp plants was received when they reached in village Baghamari. He states that information was subsequently entered by him in C-1 register in his office after return to his headquarters. Such register or the extract of the register has not been proved in this case nor the copy thereof has been sent to the immediate superior officer. Though P.W.6 has stated that Excise Superintendent accompanied them to detect the excise offence on the date of occurrence but no other official witnesses have stated about such aspect rather P.W.5 has stated that on the direction of the Superintendent of Excise, Koraput, he along with other Excise staff proceeded to village Baghamari. Learned Trial Court has held in his impugned judgment that from the evidence of P.W.5, it is clear that the Superintendent of Excise, Koraput who was the immediate official superior of P.W.6 was very much present in the raiding party at the time of alleged search, recovery and seizure. This is a complete error of record. P.W.3 and P.W.4, the other two official witnesses have also not stated about the presence of Superintendent of Excise, Koraput with the raiding party. Therefore when the immediate official superior of P.W.6 was not present with the raiding party and reliable information was received while he was on the move and P.W.6 has taken down the said reliable information in C-1 register of his office after return to the headquarters then in compliance of the mandatory provisions of section 42(2) of the N.D.P.S. Act, he should have forthwith sent copy of such writing to the immediate superior officer which has not been done. Therefore, I am of tile view that the mandatory provisions of section 42(2) of the N.D.P.S. Act has not been complied with. 9. The prosecution has not proved any documentary evidence that the spot house or the bari in question belong to the accused or that he was in possession of the same. Not a single person from the neighborhood has been examined to substantiate such aspect. 9. The prosecution has not proved any documentary evidence that the spot house or the bari in question belong to the accused or that he was in possession of the same. Not a single person from the neighborhood has been examined to substantiate such aspect. When the Executive Magistrate has been examined by the prosecution as P.W.3 and his evidence is totally silent that the appellant was present either in the spot bari or in the spot house at the time of search and seizure, it cannot be said that the seizure of hemp plants or ganja was held either from the exclusive or conscious possession of the appellant. The evidence of the witnesses are discrepant in nature and the relevant documents like Malkhana register has not been proved which would have substantiated that the contraband articles after seizure were kept in safe custody till it was produced in Court. Law is well settled that the prosecution has to prove that the articles which were produced before the Court were the very articles which were seized and the entire path has to be proved by adducing reliable, cogent, unimpeachable and trustworthy evidence. Since the punishment is stringent in nature, any deviation from it would create suspicion which would result in giving benefit of doubt to the accused. In this case, there is no evidence that the specimen seal impression which was given on the seized articles was produced before the Court at the time of production of the seized articles for verification. It is also the requirement of law that when the contraband articles are seized and sealed with the seal impression then the brass seal has to be left in the zima of a reliable person under zimanama and instruction is to be given to such person to produce it before the Court for verification at the time of production of articles. It the brass seal remains with the person who has effected search and seizure, then chance of tampering cannot be ruled out. Though P.W.6 has stated that after affixing the impression of his personal brass seal over the seized articles, he left the brass seal in the zima of the Executive Magistrate Sri Bibekananda Sahu (P.W.3) but the Executive Magistrate (P.W.3) has not been supported the same. The other official witnesses like P.W.4 and P.W.5 have also not stated about the same. Though P.W.6 has stated that after affixing the impression of his personal brass seal over the seized articles, he left the brass seal in the zima of the Executive Magistrate Sri Bibekananda Sahu (P.W.3) but the Executive Magistrate (P.W.3) has not been supported the same. The other official witnesses like P.W.4 and P.W.5 have also not stated about the same. The order sheet of the learned Sessions Judge-cum-Special Judge, Koraput dated 1.10.2007 indicates that when the accused was produced, no such brass seal was produced before the Court. Even during trial also, the brass seal which is alleged to have been given in the zima of P.W.3 has also not been produced. 9. In view of the glaring inconsistencies in the evidence of prosecution witnesses, non-compliance of mandatory provision under section 42(2) of the N.D.P.S. Act, absence of any clinching materials that the seized articles were kept in safe custody till its production in the Court and absence of either any documentary or clinching oral evidence that the spot house belongs to the appellant or that he was in possession of the same, I am of the view that it would be very risky to uphold the impugned judgment and order of conviction. Therefore, the conviction of the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh) and in default of payment of fine, to undergo further R.I. for one year as was imposed by the learned Trial Court, is hereby set aside. In the result, the appeal is allowed. The appellant who is in jail custody shall be released forthwith, if his detention is not otherwise required in any other case. Lower Court records with a copy of this judgment be sent down to the learned Trial Court forthwith for information. Appeal allowed.