JUDGMENT : J.P. Das, J. - This common order shall govern the aforesaid two appeals, both of which are directed against the judgment dated 15.04.2011 passed by the learned Sessions Judge-cum-Judge, Special Court, Sambalpur in T.R. Case No. 02 of 2009 arising out of Sambalpur Sadar P.S. Case No. 46 dated 20.06.2008 convicting both the appellants under Section 20(b)(ii)(c) of the N.D.P.S. Act 1985 and sentencing each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh) in default two undergo further R.I. fora period of one year. 2. The prosecution case was that on 20.06.2008, the O.I.C. Sadar Police Station, Sambalpur on receipt of some information that one Maruti Wagon R Car bearing Registration number CG-13-C-1340 coming from Cuttack side and proceeding towards Chhatisgarh was carrying Ganja, made a Station Diary to the effect and sent an information to the Superintendent of Police, Sambalpur regarding the information. He sent a requisition for the services of an Executive Magistrate for the purpose of detection and after the Executive Magistrate reached at the Police Station, the police staff along with the Executive Magistrate proceeded to the spot on the N.H.-6 and waited there. At about 11.30 A.M. the vehicle tallying with the prior information was found coming from Dhanupali Chowk side, which was detained by the police staff. It was found that the accused-appellant Santosh Pradhan was driving the vehicle and the other accused-appellant Babula Roula was sitting on the front seat. On interrogation, both of them disclosed to have been carrying Ganja in the vehicle as per the instruction of the owner of the said vehicle one Takeswar Banjari of Chhatisgarh. Some independent witnesses had been called by the officers and one weigh man was also called to the spot and in the presence of all the witnesses-search was conducted. Both the accused persons being noticed wanted to be searched in the presence of the Executive Magistrate, which was obtained in writing. On personal search of the accused persons simply some cash were found with both the accused persons and Oil search of the vehicle one Jute gunny bag was found on the back seat of the Car and one Plastic Bag was found in the Dicky of the Car, both containing Ganja. On weighment it was found that the gunny bag contained 23 Kgs. On weighment it was found that the gunny bag contained 23 Kgs. of Ganja and the Plastic Bag contained 10 Kgs. of Ganja. Samples were taken from the bulk materials and all the materials were sealed by the officer with his personal Brass Seal. After sealing, the Brass Seal was handed over to the Executive Magistrate under proper Zimanama, the materials were marked and seized under proper seizure list. The weighing materials were also seized and left with the weigh man under Zimanama Since both the accused persons failed to produce any authority or to provide any explanation for transportation of huge quantity of Ganja, both of them were arrested and brought to the PS. On reaching the police station, the Officer drew up formal F.I.R. kept the seized articles in P.S. Malkhana and the charge of investigation was handed over to the Circle Inspector of Police, Sadar, Sambalpur, who became the Investigating Officer thereafter. In course of investigation, the Investigating Officer perused the documents, put his seal on the packets containing bulk Ganja as well as sample packets and kept the same in the Malkhana of the police station, examined the witnesses and the accused persons, visited the spot and on the next day forwarded the accused persons to the court along with the seized Ganja and as per the direction of the court, the samples were sent to R.F.S.L. Sambalpur for Chemical Examination. The other relevant documents like Station Diary, intimation to the Superior Authority so also the detailed report etc. were also seized and after completion of other formalities and the investigation, charge-sheet under Section 20(b)(ii)(C) of the N.D.P.S. Act was submitted against both the accused persons. 3. Both the accused persons pleading not guilty to the charge took the plea that they have been falsely implicated in the case. In course of trial, the further defence plea was advanced that the mandatory provisions under Sections 42 and 57 of the N.D.P.S. Act were not duly complied with. 4. Thirteen witnesses were examined on behalf of the prosecution in support of its case as against none preferred by the accused person in defence. The P.W. 1 was the Driver of the vehicle, which carried police personnel and the Magistrate to the spot, P.Ws. 2 and 4 were two A.S.Is. 4. Thirteen witnesses were examined on behalf of the prosecution in support of its case as against none preferred by the accused person in defence. The P.W. 1 was the Driver of the vehicle, which carried police personnel and the Magistrate to the spot, P.Ws. 2 and 4 were two A.S.Is. of police who accompanied the raiding party, P.W. 3 was a witness to the seizure of Malkhana Register by the I.O., P.Ws. 5 and 8 were two independent witnesses, P.W.6 was the concerned Executive Magistrate, P.W.7 was the weigh man, P.W.9 was a police constable, who carried the sample packets to R.S.F.L., Sambalpur for Chemical Examination, P.W.10 was another A.S.I. of police who witnessed the seizure of certain documents and register, P.W. 11 was another A.S.I. of police, who accompanied the raiding party, P.W.12 was the then O.I.C. Sadar Police Station, Sambalpur, who first got the information about the alleged transportation of Ganja and undertook the operation and P.W. 13 was the Investigating Officer. 5. Considering the oral as well as documentary evidence placed before the Court, learned Sessions Judge-cum-Judge, Special Court, Sambalpur found and held both the accused persons guilty of the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act and passed the judgment of conviction and sentence. 6. The two accused convicts have preferred two separate appeals on selfsame grounds that the mandatory provisions of Sections 42(2) and 57 of the N.D.P.S. Act were not complied with. It was also submitted that the learned Trial Court has casually overlooked the serious discrepancies and deficiencies in the evidence of the prosecution and has erroneously believed the prosecution case of search and seizure. It was also contended that the independent witnesses examined by the prosecution have not supported its case, which was not duly considered by the learned Trial Court, especially, on the face of serious contradictions in the evidence of the official witnesses and lastly, it was also alleged that the seal used by the officer for sealing the bulk packets and sample packets and said to have been handed over to the Executive Magistrate under Zimanama has not been produced during trial before the Trial Court without any reasonable explanation, which has seriously affected the veracity of the prosecution case. On these submissions, it was contended that the impugned judgment is liable to be set aside acquitting the accused appellants, who have in the meantime, have already undergone sentence for a period of eight years. 7. On the other hand, leaned counsel on behalf of the State supported the impugned judgment by submitting that the mandatory provisions of law have been duly complied with by the Investigating Agency. It was further submitted that the detection of Ganja and recovery and seizure thereof from the possession of the accused persons have been duly proved by consistent evidence of the prosecution witnesses and that the learned Trial Court has committed no error in believing the evidence of the official witnesses in absence of any independent corroboration in order to accept the prosecution case. It was also submitted that the minor discrepancies as appeared in the evidence of prosecution witnesses have been rightly ignored by the learned Trial Court. 8. The verdict of the learned Trial Court convicting the accused appellants has been challenged on behalf of the appellants on the following grounds : I. The mandatory provisions of Section 42(2) and Section 57 of the N.D.P.S. Act have not been complied with by the Investigating Agency; II. There was no independent evidence on record to support the prosecution case especially when the evidence of the official witnesses suffered from contradictions and inconsistencies, which have been lightly brushed aside by the learned Trial Court; III. Non-production of material evidence like the Brass Seal before the learned Trial Court seriously affected the veracity of the prosecution allegation of recovery and seizure, which has not been duly considered by the learned Trial Court; and IV. The safe custody of the allegedly seized materials between the period from the alleged recovery and production before the Court was also doubtful, the benefit of which should have been given to the accused appellants. 9. As regards, the compliance of the provision of Section 42(2) and Section 57 of the N.D.P.S. Act, the P.W.12 the first Investigating Officer has categorically stated that on receipt of the information regarding transportation of Ganja in a vehicle, he made a Station Diary Entry and immediately intimated the fact to his superior authority vide his letter, which was proved as Ext.20. The concerned Station Diary Entry No. 308 as well as the letter addressed to the Superintendent of Police, Sambalpur have been duly proved. It was submitted on behalf of the appellants that there was no endorsement on the said letter to show that it was received in the office of the Superintendent of Police, Sambalpur apart from the fact that there was some overwriting on the number and date given on the letter. However, the fact remains that the letter was duly dispatched by the O.I.C. Sadar Police Station, Sambalpur and it was received in the office of the Superintendent of Police, Sambalpur. One A.S.I. of police attached to D.I.B., Sambalpur has also been examined as P.W. 10, who has stated regarding the receipt of the said letter in the office of the Superintendent of Police, Sambalpur and he has also stated that on 23.06.2008, he received the detailed report from the O.I.C. Sadar Police Station, Sambalpur, which was also placed before the Superintendent of Police, Samabalpur. He also stated about the seizure of the said letters and the register subsequently by the Investigating Officer. P.W. 12 has also stated that he subsequently submitted detailed report to the Superintendent of Police, Sambalpur vide Ext.21. In view of such evidence on record and in absence of any convincing material to doubt the same, I am not inclined to accept the contentions raised on behalf of the appellants that the provisions of Section 42(2) and Section 57 of the N.D.P.S. Act were not duly complied with. 10. The main contention that has been advanced on behalf of the appellants was that the prosecution failed to produce any independent evidence before the Court to support its case and that the evidence of the official witnesses being interested witnesses should not have been relied upon to reach the conclusion of guilt against the accused appellants. Two independent witnesses, who allegedly witnessed the search and seizure, have been examined as P.Ws. 5 and 8, respectively and the person, who was called to weigh the seized Ganja was examined as P.W.7. But unfortunately, for the prosecution, all the three independent witnesses have gone hostile to the prosecution case. They have stated to have simply put their signatures on some papers at the instance of the police. 5 and 8, respectively and the person, who was called to weigh the seized Ganja was examined as P.W.7. But unfortunately, for the prosecution, all the three independent witnesses have gone hostile to the prosecution case. They have stated to have simply put their signatures on some papers at the instance of the police. They were confronted with their earlier statements to have given before the police but, they have denied to have given such statements. Thus, remained the evidences of the official witnesses, namely, police personnel and the Executive Magistrate, who allegedly witnessed the detention, recovery and seizure. The position of law is not in dispute that conviction can Fe on the evidence of the official witnesses even in absence of any independent corroboration. It is for the reason that the official witnesses are expected to be truthful in relation to performance of their duties without having any axe to grind against the accused persons. Simply because the witnesses were police officials, their evidence cannot be thrown out unless those are noticed with some serious discrepancies or contradictions so as to doubt the veracity of the concerned witnesses. On this back drop, the evidence of the official witnesses, as led by the prosecution is to be examined. It is the settled position of law that while sitting in appeal, the Appellate Court can look into the evidence and reappraise the same in order to find out as to whether those have been correctly appreciated by the Trial Court or not. 11. This contention has been dealt with by the learned Trial Court in paragraphs-25 and 26 of the impugned judgment. The learned Special Judge has observed that no doubt there was certain inconsistencies in the evidence of the witnesses such as coming of the Executive Magistrate to the spot, making of Station Diary, bringing of the weighing apparatus but, has held that the said inconsistencies are not material apart from the fact that remaining part of the evidence of the said witnesses was credible. As stated earlier, the evidence of the official witnesses are not to be discarded merely because of interestedness for the prosecution but, it should be considered with care and caution to rule out any possibility of manipulation or over statement so as to make such evidence credit worthy. As stated earlier, the evidence of the official witnesses are not to be discarded merely because of interestedness for the prosecution but, it should be considered with care and caution to rule out any possibility of manipulation or over statement so as to make such evidence credit worthy. Learned counsel on behalf of the appellants took me through the evidence of the concerned official witnesses to show that the discrepancies and contradictions are so very apparent that even their presence at the time and place of detection appeared doubtful much less to have witnessed he search and seizure. The P.W. 1 was the official driver of the police vehicle, which carried the police staff and the Executive Magistrate to the place of detection. In cross-examination, he has stated that they reached the spot at about 10.20 A.M. and found the vehicle coming immediately thereafter and that the concerned Magistrate came after about 45 minutes of the detection of the vehicle whereafter the seizure was made. He has also stated that they returned to the police station at 11.20 A.M. But as per the prosecution case and specifically as per the P.W.12 at about 11.00 A.M. the Executive Magistrate arrived at the police station and all the police officials along with Executive Magistrate went to the spot. After sometime, the vehicle was found coming and was intercepted and thereafter the formalities were observed and the officials remained at the spot from 11.00 A.M. to 3.45 P.M. for the entire operation. He has also categorically stated that the Executive Magistrate accompanied him in the police vehicle. Thus, the version of P.W. 1 created serious doubt as to if at all he had any knowledge about the alleged operation. Similarly, P.W.2 another police officer has stated that at about 9.30 A.M. they reached the spot and the Magistrate had arrived 15 minutes prior to their arrival coming on his own motorcycle. This was obviously a different story. The Executive Magistrate himself has stated that he accompanied the police staff in one Jeep. Similarly, P.W.2 another police officer has stated that at about 9.30 A.M. they reached the spot and the Magistrate had arrived 15 minutes prior to their arrival coming on his own motorcycle. This was obviously a different story. The Executive Magistrate himself has stated that he accompanied the police staff in one Jeep. P.W. 11 was another A.S.I. of police, who failed to identify the accused persons standing in the dock though he claimed to be a witness to the alleged operation and the learned Special Judge has noted his observation in the deposition of this witness during cross-examination that the witness was referring to a chit of paper and was deposing in the Court seeing the paper. Of course, P.W. 12 the first Investigating Officer has narrated the prosecution story as per the F.I.R. It was submitted by the learned counsel on behalf of the appellants that the Investigating Officer of the case is always allowed to depose referring to the Case Diary while deposing in court and hence, it is not expected to find out any contradiction in his statement. The contradictory statements as made by the other official witnesses as discussed above, left the evidence of P.W.12 solitary creating a doubt as to whether other official witnesses had accompanied P.W. 12 at all to the place of detection or they were merely planted witnesses. Apart from the discrepancies regarding the time of arrival, there are also other discrepancies, which were brought to my notice by the learned counsel on behalf of the appellants. 12. As per the prosecution allegation, one jute gunny bag was kept on the back seat of the Car, which was subsequently found to be containing 23 Kgs. of contraband Ganja and one Plastic bag was found inside the Dicky of the vehicle said to be containing 10 Kgs. of contraband Ganja. P.W. 1 as the police driver said not to have witnessed the recovery and seizure since he was in his office vehicle. P.W.2 stated that both the bags were kept on the backside of the Car. P.W.4 stated that two gunny bags were recovered one from the Dicky and another from the middle seat of the Car. Similar was also the version of P.W.6, the Executive Magistrate. P.W. 11 who deposed seeing some chit of paper stated in his cross-examination that both the bags were found from the backside of the Car. P.W.4 stated that two gunny bags were recovered one from the Dicky and another from the middle seat of the Car. Similar was also the version of P.W.6, the Executive Magistrate. P.W. 11 who deposed seeing some chit of paper stated in his cross-examination that both the bags were found from the backside of the Car. It was submitted by the learned counsel for the appellants that the witnesses being official witnesses were expected to say the particulars about the quantity of the incriminating materials besides the place of seizure and the procedural official formalities since they are supposed to know those things. Their veracity can only be put to test by putting question regarding the attending circumstances and ancillary matter in order to assess their truthfulness. Referring to the discrepancies and inconsistencies as discussed herein above, it was submitted that the contradicting statements and the inconsistencies in the material particulars in the evidence of the official witnesses should not have been lightly kept aside by the learned Trial Court. It was further submitted that no doubt P.W. 12 has given detailed particulars but the evidence of other official witnesses created a doubt as to the actual happening of the incident or the procedural formalities said to have been taken up at the spot of detection. 13. Apart from these discrepancies in the oral evidence, it was also submitted on behalf of the appellants that the allegedly seized materials were sealed with the Brass Seal of the P.W. 12, which was left the zima of the Executive Magistrate. But, the said Executive Magistrate appearing as P.W.6 did not produce the same in Court and rather stated that he could not recollect as to which Brass Seal was given to him since the O.I.C. had given him Zima of Brass Seal in some other cases. He also failed to say the number of articles seized by the police or the contents of the seizure-list, which he had signed. He also failed to recollect the model and colour of the incriminating vehicle. He also failed to say as to whether any personal search memo was prepared or not. He also failed to say the number of articles seized by the police or the contents of the seizure-list, which he had signed. He also failed to recollect the model and colour of the incriminating vehicle. He also failed to say as to whether any personal search memo was prepared or not. Thus, non-production of the Brass Seal was definitely a serious lacuna in the case of the prosecution creating doubt regarding its veracity, as has been held in a decision of this Court reported in (2010) 45 OCR 606 in the case of Bata Krushna Sahu v. State of Orissa. It was further submitted that since as per the prosecution case, the materials were brought and kept in the Malkhana in the Police Station and were sent to the Court on the next day, it was the bounden duty of the prosecution to establish the safe custody of the alleged materials beyond all reasonable doubts. It became more important for the fact that as per the prosecution, the samples were collected from the bulk materials at the spot itself and were produced before the Court to be sent to R.S.F.L., Sambalpur The contention as advanced on behalf of the appellants has definitely some force to be reckoned with. 14. In this regard another factor was brought to the notice of the Court that as per the evidence of P.W. 12, the first Investigating Officer, after his return to the police station, he kept the seized articles in police Malkhana after making necessary entries and he proved the extract of Malkhana Register as Ext.25. But, peculiarly P.W. 13 the subsequent Investigating Officer in his examination-in-chief that after taking over the investigation, he perused the documents prepared by the O.I.C. Sadar Police Station, re-sealed the seized packets (Exts.) by his personal seal and thereafter he kept the exhibits in the police Malkhana after making entries in the Malkhana Register vide M.R. No. 15 of 2008. Thus, it was submitted that if both the officers separately placed the materials in Malkhana, there should have been two entries separately in the Malkhana Register, which was not there in this case. Thus, it was submitted that if both the officers separately placed the materials in Malkhana, there should have been two entries separately in the Malkhana Register, which was not there in this case. Secondly, if the P.W. 13 re-sealed the articles with his personal seal, which was not placed before the Court, it should have been established by the prosecution as to whether the first seal was broken and thereafter the second seal was placed or packets contained the seals of both the officers. The evidence led on behalf of the prosecution is absolutely silent in this regard. These serious discrepancies in the prosecution case definitely created a doubt regarding handling or safe custody of the allegedly seized materials, which could not have been lightly brushed aside. 15. It has been the repeated observation of the Hon'ble Apex Court that the offence under the N.D.P.S. Act being serious in nature visited with severe punishment, the prosecution must prove its case beyond all reasonable doubt in respect of material particulars leaving no room for any suspicion or hesitation. It is also the position of law that failure to establish proper safe custody of the seized material affects the very root of the prosecution case. 16. In view of the discrepancies and contradicting positions in the statement of the official witnesses apart from the absence of sufficient proof to establish the safe custody of the seized materials, I am unable to agree with the learned trial court that the prosecution was successful in establishing the charge of the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act against the accused-appellants beyond all reasonable doubts, the benefit of which must be given to them. 17. Accordingly, both the appeals are allowed. The impugned judgment of conviction and sentence passed by the learned Sessions Judge-cum-Judge, Special Court, Sambalpur in T.R. Case No. 02 of 2008 is set aside and both the accused-appellants being held not guilty of the offence punishable under Section 20(b)(ii)(C) of the N.D.P.S. Act are set at liberty, They be set at liberty forthwith unless required to be detained in some other cases. Final Result : Allowed