JUDGMENT : S.K. SAHOO, J. The appellant Panchanan Das was charged under section 21(c) of the Narcotic Drugs and Psychotropic Substances 3rd Act, 1985 (hereafter “N.D.P.S. Act”) by the Additional Sessions Judge –cum-Special Judge, Puri in T.R. Case No.2/24 of 2013 for possessing 1500 grams of brown sugar containing 342.497 grams of diacetylmorphine which is a commercial quantity and prohibited manufactured drug without lawful authority on the 12th day of June 2013 at about 3.45 p.m. in front of his house situated at Matimandap Sahi under Puri Town Police Station in the district of Puri. The learned Trial Court vide impugned judgment and order dated 29.06.2015 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment of 10 (ten) years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo rigorous imprisonment for two years. 2. The prosecution case, in short, is that on 12.06.2013 at about 2.00 p.m. while Mr. Amarendra Kumar Jena (P.W.4), Inspector of Excise, E.I. and E.B., Unit No. II, Cuttack was performing patrolling duty along with his staff Sri Suryanarayan Rath (P.W.3), A.S.I. of Excise , E.I. and E.B., Unit-II, Cuttack, Smt. Anupama Das, Lady Excise Constable and others in a government vehicle bearing regd. no. OR-05-AD-9697 near Mochisahi Chhak under Puri Town Police Station in connection with detection of illegal transportation/export of contraband excisable articles, at that time P.W.4 received credible information from a reliable source regarding illegal sale/transportation of brown sugar by the appellant in his house. The informer informed P.W.4 that the appellant was wearing a check colour shirt and using a cell phone with mobile no.9861631976 and that he might flee away from his house. P.W.4 recorded the grounds of belief into writing and also intimated the same to his immediate superior authority over his cell phone and as per the provision laid down under section 42(1) of the N.D.P.S. Act, he also sent a copy thereof to his immediate superior authority Sri Nitin Bhanu Jawale, Excise Commissioner, Cuttack through one of the members of raiding party Sri Kishore Chandra Rout, Excise Constable of his Unit and also informed Inspector in charge, Town Police Station, Puri over cell phone for deputation of staff for law and order. P.W.4 immediately rushed to the house of the appellant basing on the information of the reliable informer and at about 3.00 p.m. when reached near the house of the appellant, he found that the appellant was trying to escape by carrying one light grey coloured cotton bag having some suspected contraband articles hanging in his right hand. As the activities of the appellant were suspicious, P.W.4 detained him in front of his house with the help his unit’s staffs. Some local persons gathered there and in their presence, P.W.4 disclosed his identity as well as cause of suspicion to the appellant. The appellant confessed that he was possessing brown sugar with him in the light grey coloured cotton bag suspended from his hand. P.W.4 requested the Sub-Divisional Magistrate-cum-Sub-Collector, Puri through letter for deployment of any Executive Magistrate for searching the appellant and obtained proper acknowledgment receipt from his office. At about 3.10 p.m., P.W.4 explained the appellant regarding the provision under section 50 of the N.D.P.S. Act that he has every right to be searched in front of any Gazetted Officer or any Executive Magistrate in presence of the available local witnesses, both orally and in a written notice. The appellant opted to be searched by P.W.4 in presence of available public witnesses on the spot. Then P.W.4 gave his personal search to the appellant and to the public standing nearby. His departmental staff along with independent witnesses also gave their personal search to them and also maintained the formalities of search. After observing all the legal formalities of search in presence of available public witnesses and appellant, P.W.4 searched the cotton bag possessed in the right hand of the appellant and recovered three numbers of polythene packets, the mouth of which was tied with rubber band and each packet was containing different colours and different quantities of powder substances suspected to be heroin (brown sugar). On further search of the appellant, P.W.4 recovered Rs.51,000/-from the right side pant pocket of the appellant along with his voter identity card and one cell phone. Then P.W.4 marked the three polythene packets as Sl. No. 1, 2 and 3 out of which Sl. No.1 was having yellowish brown colour, Sl. No.2 was having pink colour and Sl. No.3 was having white colour. Then P.W.4 marked the three polythene packets as Sl. No. 1, 2 and 3 out of which Sl. No.1 was having yellowish brown colour, Sl. No.2 was having pink colour and Sl. No.3 was having white colour. P.W.4 opened the three polythene packets separately and examined them and from the smell, special narcotic training knowledge and sixteen years of service experience, he opined all the packets to be containing heroin (brown sugar). P.W.4 weighed the packets and Sl. No.1 was found containing 600 grams, Sl. No.2 was found containing 500 grams and Sl. No. 3 was found containing 400 grams respectively excluding the weight of jerry packets. P.W.4 seized the packets and sealed the mouth of each packet separately through paper slip containing signatures of the appellant, witnesses and of him. The paper slips were sealed by personal brass seal with wax having his specimen signature. The seized sale proceeds were kept in one envelop separately. P.W.4 kept the sealed jerry packets containing heroin (brown sugar) along with the sealed sale proceeds envelop and mobile handset envelop inside a cotton bag separately and the cotton bag was sealed by paper slips containing signatures of the appellant, witnesses and of him. P.W.4 put his personal brass seal impression on the seizure list as well as on a separate paper slip. Then he gave his personal brass seal used in sealing purpose in the zima of Suryakanta Samantaray (P.W.1) in proper Zimanama (Ext.3/3) with acknowledgement receipt having specimen of personal brass seal. P.W.4 prepared the seizure list at the spot and read over the contents of the seizure list and finding it to be correct, the appellant and the witnesses put their signatures on the body of the seizure list. P.W.4 prepared a rough sketch map at the spot, recorded the statement of the appellant and then arrested the appellant after disclosing the grounds of arrest, prepared the arrest memo and forwarded the appellant to the Court along with all other documents and seized properties. The appellant was remanded to jail custody on 12.06.2013. On the prayer of P.W.4, samples were drawn from each container separately (five grams) in presence of learned S.D.J.M., Puri. As per the direction, P.W.4 deposited the Court sealed seized properties, sale proceeds envelop along with sealed envelope containing broken seals in the Session Court’s Malkhana on 12.06.2013. The appellant was remanded to jail custody on 12.06.2013. On the prayer of P.W.4, samples were drawn from each container separately (five grams) in presence of learned S.D.J.M., Puri. As per the direction, P.W.4 deposited the Court sealed seized properties, sale proceeds envelop along with sealed envelope containing broken seals in the Session Court’s Malkhana on 12.06.2013. P.W.4 received the Court sealed sample packets along with forwarding letter to deposit before the chemical examiner. P.W.4 kept the Court sealed sample packets in the custody of I.I.C., Town Police Station, Puri for safe custody on 12.06.2013 and received the acknowledgement receipt. On 13.06.2013 P.W.4 received the sample packets from I.I.C., Town Police Station and deposited the same before the chemical examiner at Bhubaneswar. On 24.06.2013 P.W.4 received the copy of the chemical examination report. The chemical examiner opined that all the three samples drawn in presence of S.D.J.M., Puri were found to be heroin (brown sugar). He received the criminal antecedents of the appellant and finding prima facie evidence against the appellant for commission of offence punishable under section 21(c) of the N.D.P.S Act in contravention of section 8 of the said Act, submitted final prosecution report against the appellant. 3. During course of trial, the prosecution examined four witnesses. P.W.1 Suryakanta Satpathy and P.W.2 Bijaya Kumar Mohapatra who were the independent witnesses to search and seizure did not support the prosecution case for which they were declared hostile. P.W.3 Suryanarayan Rath was the A.S.I. of Excise who is a witness to the search and seizure of brown sugar from the possession of the appellant. P.W.4 Amerendra Kumar Jena was the Inspector of Excise who is the investigating officer in the case. The prosecution proved twenty two documents. P.W.3 Suryanarayan Rath was the A.S.I. of Excise who is a witness to the search and seizure of brown sugar from the possession of the appellant. P.W.4 Amerendra Kumar Jena was the Inspector of Excise who is the investigating officer in the case. The prosecution proved twenty two documents. Ext.1 is the signature of P.W.1 on his statement, Ext.2/1 is the paper slip, Ext.3/3 is the zimanama of the brass seal, Ext.4/3 is the option letter given to the appellant by P.W.4, Ext.5, Ext.7/5 and Ext.8/4 are the drugs testing charts prepared at the spot, Ext.6 is the written statement of the appellant giving option for search, Ext.9 is the signature of P.W.2 on his statement, Ext.10 is the testing method chart, Ext.11/2 is the seizure list, Ext.12/2 is the spot map, Ext.13/2 is the inventory list, Ext.14/2 is the arrest memo, Ext.15/1 is the seal on the seizure list prepared in Form No-C-2, Ext.16/2 is the disclosure of the ground of arrest, Ext.17 is the information sent to Deputy Commissioner of Excise under section 42 of the N.D.P.S Act, Ext.18 is the letter of request to S.D.M-cum-Sub Collector, Puri depute any Executive Magistrate, Ext.18/2 is the information sought for to I.I.C, Town Police Station, Puri regarding criminal antecedent of the appellant, Ext.19 is the letter of the S.D.J.M., Puri to the chemical examiner, Ext.20 is the Chemical Examination Report, Ext.21 is the letter of request to I.I.C., Town Police Station, Puri for keeping the sealed packets of brown sugar, Ext.22 is the report of arrest, search and seizure prepared under section 57 of the N.D.P.S. Act sent to Deputy Commissioner of Excise. The prosecution also proved some materials objects. M.O.I is the bag, M.O.II is the brown coloured powder, M.O.III is the pink coloured powder, M.O.IV is the white coloured powder, M.O.V is the cell phone, M.O. VI/1, VI/2 and VI/3 are the broken seals. 4. The defence plea of the appellant was one of denial and it was pleaded that no heroin (brown sugar) was seized from his possession and a false case has been foisted against him at the instance of one Jharana Panda as at the instance of the appellant, she was booked in a case. Neither any witness was examined nor was any document proved on behalf of the defence. 5. Neither any witness was examined nor was any document proved on behalf of the defence. 5. The learned Trial Court has been pleased to hold that though P.W.1 and P.W.2 have not supported the prosecution case in true sense, P.W.2 has admitted his signatures on Exts.3 to 16 and it is somehow inconceivable that the signatures of P.W.1 and P.W.2 can be forcibly obtained by the Excise authorities at Puri Town. The learned Trial Court further held that there is no cogent ground to discard the report received from chemical examiner of the State Drugs Testing & Research Laboratory, Bhubaneswar. It was further held that the evidence of P.W.3 and P.W.4 establishes beyond reasonable doubt that the appellant was in exclusive and conscious possession of 344.844 grams of diacetyl morphine which is commercial quantity and therefore, the appellant was held guilty of the offence under section 21(c) of the N.D.P.S. Act. 6. Mr. Anirudha Das, the learned counsel appearing for the appellant while challenging the impugned judgment and order of conviction assiduously contended that P.W.4 who is the informant in the case, conducted search and effected seizure and proceeded with the investigation of the case and submitted final prosecution report against the appellant which is illegal and therefore, the entire investigation and submission of final report is vitiated in the eye of law. He further contended that when none of the independent witnesses have supported the prosecution case in material particulars, the learned Trial Court should not have convicted the appellant relying upon the testimony of two official witnesses like P.W.3 and P.W.4 whose evidence are also self-contradictory. The learned counsel further contended that no impression seal or brass seal was produced before the learned S.D.J.M., Puri for comparison of the seal affixed on the contraband articles and sample having not been drawn at the spot and no explanation having been offered by the prosecution on such aspect, the chance of tampering with the articles before its production in the Court cannot be ruled out. Learned counsel further submitted that the safe custody of the sample prior to its arrival before the chemical examiner is also doubtful. There is non-compliance of the provisions under sections 42, 50, 52 and 57 of the N.D.P.S. Act and therefore, benefit of doubt should be extended in favour of the appellant. Mr. Learned counsel further submitted that the safe custody of the sample prior to its arrival before the chemical examiner is also doubtful. There is non-compliance of the provisions under sections 42, 50, 52 and 57 of the N.D.P.S. Act and therefore, benefit of doubt should be extended in favour of the appellant. Mr. Prem Kumar Pattnaik, learned Additional Government Advocate on the other hand submitted that the required mandatory provisions have been duly complied with and in view of the settled position of law that in such type of cases, even relying upon the evidence of official witnesses, the order of conviction can be passed, it cannot be said that the learned Trial Court has committed any illegality in accepting the version of the official witnesses in convicting the appellant. Whether conducting of investigation and submission of final prosecution report by P.W.4 is illegal? 7. A fair trial is impossible without a fair investigation and it flows from Articles 20 and 21 of the Constitution of India. Defective, biased, mala fide or a tainted investigation will lead to miscarriage of criminal justice delivery system. The investigating officer has been granted great latitude to exercise his discretionary power to make a successful completion of investigation by collecting necessary evidence in any manner he feels expedient, on the facts and circumstances of the case and therefore, he plays a very pivotal role in the dispensation of criminal justice system. An error in investigation may result in miscarriage of justice and can cause serious prejudice not only to the either of the sides i.e. the victim and the accused but also to the society at large which expects a fair verdict. Therefore, the investigation ought to be fair, transparent and judicious. The learned counsel for the appellant placed reliance in the case of Megha Singh -Vrs.-State of Haryana reported in 1997 Supreme Court Cases (Criminal) 267 wherein it is held as follows:- “4………We have also noted another disturbing feature in this case. P.W.3, Siri Chand, Head Constable arrested the accused and on search being conducted by him, a pistol and cartridges were recovered from the accused. It was on his complaint, a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. P.W.3, Siri Chand, Head Constable arrested the accused and on search being conducted by him, a pistol and cartridges were recovered from the accused. It was on his complaint, a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but carried on with the investigation and examined witnesses under section 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 and impartial investigation.” The learned counsel for the appellant further placed reliance in the case of State –Vrs.-Rajangam reported in (2010) 15 Supreme Court Cases 369 wherein relying on the decision of Megha Singh (supra), Hon’ble Supreme Court held that acquittal order passed by the High Court was justified. However, in case of Vinod Kumar -Vrs.-State of Punjab reported in (2015) 62 Orissa Criminal Reports (SC) 316, Hon’ble Supreme Court held as follows:- “27. At this juncture, it would be fruitful to refer to S. Jeevanatham v. State (through Inspector of Police, T.N.: (2004) 28 OCR (SC) 646. In the said case, the Appellant was found guilty under section 8(c) read with section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. One of the contentions that was canvassed was that P.W.8, who lodged the FIR had himself conducted the investigation and hence, the entire investigation was vitiated. The Court referred to the decision in State -Vrs.-V. Jayapaul : 2004 (3) SCALE 507 and opined thus: “In the instant case, PW 8 conducted the search and recovered the contraband article and registered the case and the article seized from the appellants was narcotic drug and the counsel for the appellants could not point out any circumstances by which the investigation caused prejudice or was biased against the Appellants. P.W.8 in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation.” 28. P.W.8 in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation.” 28. In the instant case, P.W.8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted. In our considered view, the decision in S. Jeevanatham (supra) would be squarely applicable to the present case and, accordingly, without any reservation we repel the submission so assiduously urged by Mr. Jain, learned senior counsel for the appellant.” Considering the submissions and keeping in view the settled position of law, I am of the view that in a case of this nature, where stringent punishment has been prescribed, ordinarily if a police officer is the informant in a case, in the fairness of things, the investigation should be conducted by some other empowered police officer or at least the investigation should be supervised by some other senior police officer as the informant police officer is likely be interested in the result of the case projected by him. However, if the informant police officer in the exigencies of the situation conducts investigation and submits final form, it cannot be per se illegal. The defence has to prove in what way such investigation is impartial, unfair, biased or has caused prejudice to the accused. In case of State of Rajasthan –Vrs.- Kishore reported in 1996 Supreme Court Cases (Criminal) 646, it is held that it would not cast doubt on the prosecution case proved by trustworthy and reliable evidence even if the investigating officer committed irregularity and illegality during investigation. In case of State of Rajasthan –Vrs.- Kishore reported in 1996 Supreme Court Cases (Criminal) 646, it is held that it would not cast doubt on the prosecution case proved by trustworthy and reliable evidence even if the investigating officer committed irregularity and illegality during investigation. In the present case, in absence of any material to suspect the investigation by P.W.4 as unfair, biased and impartial and in absence of anything that the informant-cum-investigating officer was personally interested to get the appellant convicted, I am not inclined to accept that since P.W.4 who is the informant in the case, conducted search and effected seizure and proceeded with the investigation of the case to submit the final prosecution report, the entire investigation and submission of final prosecution report is vitiated in the eye of law. Whether conviction of the appellant relying upon the testimony of two official witnesses is illegal? It is the settled principle of law that even though the independent witnesses in excise cases for one reason or the other do not support the prosecution case that cannot be a ground to discard the prosecution case in toto. On the other hand, if the statements of the official witnesses relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence and determine whether the evidence of the Police Officer/Excise Officer is believable after taking due care and caution in evaluating their evidence. In case of Tahir -Vrs.-State (Delhi) reported in A.I.R. 1996 S.C. 3079, it is held as follows:- “6. Mr. D.D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW 4 to PW 7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion, no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. We cannot agree. In our opinion, no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case.” Thus the contentions raised by the learned counsel for the appellant that without any support from the independent witnesses, relying upon the testimony of two official witnesses like P.W.3 and P.W.4, the learned Trial Court should not have convicted the appellant is not acceptable. Effect of non-drawal of sample at the spot and non-production of impression seal or brass seal before the learned S.D.J.M., Puri at the time of production of contraband articles P.W.4 after recovery of three polythene packets in a bag from the possession of the appellant, tested it separately and came to opinion that all the contents were heroin (brown sugar) and then weighed the contents separately and then sealed the polythene packets containing brown sugar with paper slips with his brass seal impression bearing the signatures of the appellant, witnesses, A.S.I. of Excise and his own signatures. Then P.W.4 placed all the three sealed polythene packets, cell phone, cash recovered from the appellant inside the bag (M.O.I) which was recovered from the appellant and also sealed the bag with paper slip bearing signatures of the appellant, witnesses, A.S.I. of Excise and his own signature. He used his personal brass seal on the paper slip which was used for sealing the bag (M.O.I). Seizure list was also prepared by P.W.4 at the spot and copy of the seizure list was handed over to the appellant who received the same giving endorsement on the backside of the seizure list. P.W.4 handed over the brass seal in the zima of P.W.1 under Zimanama Ext.3/3. Seizure list was also prepared by P.W.4 at the spot and copy of the seizure list was handed over to the appellant who received the same giving endorsement on the backside of the seizure list. P.W.4 handed over the brass seal in the zima of P.W.1 under Zimanama Ext.3/3. P.W.4 also prepared the information sheet relating to grounds of arrest of the appellant and handed over a copy of the same to the appellant. Then P.W.4 produced the appellant before the Special Court –cum-Sessions Judge, Puri along with the seized items and the sealed brown sugar and as per the direction of Special Judge –cum-Sessions Judge, Puri, he appeared before S.D.J.M., Puri and prayed for drawal of sample of the seized brown sugar for the purpose of chemical examination at the State Drugs Testing Research Laboratory, Bhubaneswar and accordingly, sample was drawn by the learned S.D.J.M., Puri and forwarding letter (Ext.19) was prepared in which the seal of the Court of S.D.J.M., Puri was given. Admittedly no sample was drawn at the spot of detection of the contraband articles. The learned counsel of the appellant contended that no reason has been assigned as to why sample was not drawn at the spot and therefore, the conduct of P.W.4 becomes doubtful and in view of such infirmity, the prosecution case should be viewed with suspicion. The learned counsel placed reliance in case of Kuldip Singh -Vrs.-State of Punjab reported in (2010) 10 Supreme Court Cases 219 wherein it is held as follows:- “11. Having considered the submissions made on behalf of the parties, while we are willing to accept the propositions advanced on behalf of the State of Punjab as far as substantial compliance of section 42 of the NDPS Act, 1985 is concerned, we are unable to accept the latter part of the submissions relating to collection of samples at the Police Station from the seized goods which had been sealed by P.W.3 Malkiat Singh. Non-collection of samples at the initial stage of seizure was a defect, which could not have been cured in the manner in which it was done by opening the bags which was sealed by Malkiat Singh and mixing the contents thereof.” In Kuldeep Singh (supra) case, P.W.3 while on patrol duty, receiving secret information proceeded to the house of the appellant along with other police officials and recovered the contraband articles i.e. four bags of poppy husk. He did not take any sample at the time of seizure but sealed the same with his seal and then the four bags were taken to the Police Station where the seals were broke upon and contents of the bags were mixed and then samples were drawn and the bags were re-sealed. In the present case, the factual scenario is different. P.W.4 after sealing each of the three polythene packets with paper slips separately and putting them inside one bag, sealed it again with paper slip and then produced it straight before the learned Special Court –cum-Sessions Judge, Puri within the shortest interval of time and then in the Court of learned S.D.J.M., Puri, the samples were drawn. Therefore, the chance of tampering with the contraband articles seized at the spot of detection before its production in Court is ruled out. I am of the view that merely because sample was not drawn by P.W.4 at the spot, the contention of the learned counsel for the appellant that the prosecution case should be viewed with suspicion, cannot be accepted. P.W.4 has stated that though he had made requisition to S.D.M – Sub Collector, Puri vide Ext.18 but no Magistrate or any Judicial Officer appeared during the entire search and seizure. That may be the reason for not drawing samples at the spot and straightway producing the seized sealed contraband articles in the Court. The order sheet dated 12.06.2013 of the learned S.D.J.M., Puri indicates that the appellant was produced with the forwarding report, seizure list, memo of arrest prepared by P.W.4 and the accused was remanded to judicial custody till 24.06.2013. The order sheet dated 12.06.2013 further reveals that P.W.4 produced one cloth bag in sealed condition containing three polythene packets having mark of Sl. Nos. 1, 2 and 3. The seal of the cloth bag was broke open. The first polythene packet was containing 600 gms. The order sheet dated 12.06.2013 further reveals that P.W.4 produced one cloth bag in sealed condition containing three polythene packets having mark of Sl. Nos. 1, 2 and 3. The seal of the cloth bag was broke open. The first polythene packet was containing 600 gms. of heroin (brown sugar) having light grey colour, the second polythene packets was containing 500 gms. of heroin (brown sugar) having pink colour and the third one was containing 400 gms. of heroin (brown sugar) having white colour and the learned Magistrate found all the three packets intact. The order sheet further reveals that the Magistrate drew 5 grams of heroin (brown sugar) from each container and kept it in three polythene packets and kept each packet in separate match boxes marked as S-1, S-2 and S-3 respectively. The sample packets containing sample heroin (brown sugar) were sealed in the presence of the Magistrate and were kept in one envelope with the impression and seal of the Court. The order sheet dated 12.06.2013 further reveals that the forwarding report was duly sealed and signed with the impression and seal of the Court and was also kept inside the said envelope. Another forwarding report was also kept in an envelope duly sealed and signed with the impression and seal of the Court. The broken seals were also kept in an envelope and the same was sealed in the presence of the Magistrate with the impression and seal of the Court. The rest of the heroin (brown sugar) was kept in one cloth bag and sealed in presence of the Magistrate with the seal and impression of the Court. The order sheet further reveals that the sealed sample packets having forwarding report along with another envelope containing only forwarding report duly sealed and signed were handed over to the Investigating Officer with a direction to deposit the same with the Chemical Examiner -cum-Deputy Drugs Controller, S.D.T. & R.L., Bhubaneswar for examination and report and the rest of the heroin (brown sugar) kept in cloth bag and one sealed envelope containing broken seals were handed over to the Investigating Officer with a direction to deposit the same in the District Court Malkhana, Puri immediately and on the same day the learned S.D.J.M., Puri submitted the case records to the Court of learned Special Judge, Puri. The forwarding report of the appellant dated 12.06.2013 prepared by P.W.4 indicates the following enclosures i.e. forwarding report-1, seizure list–2, arrest memo-1, information recorded sheet-1, option letter to accused-1, compliance option letter-1, inventory list-1, Sub-Collector requisition letter-1, brash seal Zimanama-1, Drugs Testing Charts-3, Drugs Testing Method-1, Voter Identity Card of appellant-1, experience certificate-1, narcotic training-2. On perusal of the documents produced by P.W.4 with the forwarding report of the appellant indicates that the time of search and seizure was between 3.45 p.m. to 5.10 p.m. on 12.06.2013 and paper slip giving timing as per Ext.2/2 was 12.06.2013 was 5.30 p.m. Therefore, the contentions raised by the learned counsel for the appellant that since the samples were not drawn at the spot from the respective polythene packets, the conduct of P.W.4 becomes doubtful and the entire prosecution case should be viewed with suspicion cannot be accepted particularly when I am of the view that chance of tampering with the contraband articles after its seizure and before its production in the Court is ruled out. Non-production of impression seal or brass seal before the learned S.D.J.M., Puri at the time of production of contraband articles In a case of this nature, where stringent punishment has been prescribed, it is the duty of the Court to see that the articles which were seized were the very articles those were produced in Court for sending them for chemical examination and for that purpose it should be proved by leading cogent, reliable and unimpeachable evidence that the articles after seizure were properly sealed and it was kept in safe custody till it was produced before the Court and dispatched for the chemical examination. To ensure safety, it is one of the requirements that the reliable person in whose favour the seal is given in zima should produce it before the concerned Court at the time of production of seized articles and the Court has to verify not only that the seal was intact but also the seal impression that was given in the seized articles matches with the seal which was produced by the reliable person in whose favour the brass seal was given. According to P.W.4, he left the brass seal in the zima of witness Suryakanta Samantray (P.W.1) under zimanama Exhibit 3/3. According to P.W.4, he left the brass seal in the zima of witness Suryakanta Samantray (P.W.1) under zimanama Exhibit 3/3. P.W.1 has not supported the prosecution case for which he was declared hostile by the prosecution but he admits his signature Ext.3 which is available on the zimanama. P.W.1 further submits that the contents of the papers were read over before taking his signatures. P.W.3 who was the Assistant Sub Inspector of Excise has also stated that P.W.1 received the brass seal used by P.W.4 for sealing the brown sugar for safe custody under zimanama Ext.3/3 and he proved his signature on the zimanama as Ext.3/4. On perusal of the zimanama Ext.3/3, it appears that the seal impression of P.W.4 was given on it which has been marked as Ext.3/2. Even though P.W.1 has not produced the brass seal but when the zimanama Ext.3/3 was produced with the accused at the time of his production in Court on 12.06.2013 wherein the seal impression of P.W.4 which is legible finds place and the Magistrate verified the sealed condition of the cloth bag containing three polythene packets and the seals were broke open and all the three polythene packets which were inside the cloth bag were also found intact, mere non-production of brass seal by P.W.1 in Court at the time of production of the contraband articles cannot be a factor to doubt that there was scope of tampering with the seal particularly in view of the short time gap between the completion of all the formalities of search and seizure at the spot of detection and production of the accused with seized contraband articles in sealed condition in Court. Therefore, the contentions raised by the learned counsel for the appellant that for the non-production of brass seal by P.W.1 in Court, the prosecution case is to be viewed with suspicion cannot be accepted. Non-compliance of the provisions under sections 42, 50, 52 and 57 of the N.D.P.S. Act (i) Learned counsel for the appellant contended that in view of section 42(2) of the N.D.P.S. Act, an officer taking down any information in writing under sub-section (1) or recording grounds for his belief under the proviso thereto has to send a copy thereof within seventy-two hours to his immediate official superior. According to the learned counsel, P.W.4 has not complied with the same. According to the learned counsel, P.W.4 has not complied with the same. In view of sub-section (1) of section 42 of the N.D.P.S. Act when an officer as enumerated under that subsection has reason to believe either from his personal knowledge or on receipt of any information from any person that any narcotic drug or psychotropic substance or controlled substance in respect of which offence, punishment has been prescribed under the N.D.P.S. Act has been committed or any document or other article which may furnish evidence of commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter V-A of the N.D.P.S. Act is kept or concealed in any building, conveyance or enclosed place, then he has to take it down in writing. Similarly as per the proviso to section 42(1) of the N.D.P.S. Act when such 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 then he can enter and search any building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. The proviso to sub-section (1) of section 42 of the N.D.P.S. Act regarding recording of grounds of belief is not applicable in this case as the place of search was neither a building, conveyance or enclosed place but a public place on the road in front of the house of the appellant and the time was not between sunset and sunrise but at 3.00 p.m. P.W.4 has stated that when he was performing patrolling duty at Mochi Sahi Chhak along with other staffs on 12.06.2013 at about 2.10 p.m., he received information regarding illegal possession of contraband articles by the appellant for transportation and sale which was reduced into writing vide Ext.17 and he also intimated to Commissioner of Excise through his cell phone about the receipt of the information and sent a copy of the information reduced to writing to the Commissioner of Excise through constable Kishore Rout. The endorsement of Kishore Rout which is dated 12.06.2013 at 2.30 p.m. is also available on Ext.17 and the same has been marked as Ext.17/2. The endorsement of Kishore Rout which is dated 12.06.2013 at 2.30 p.m. is also available on Ext.17 and the same has been marked as Ext.17/2. The D.R. No. 243 dated 12.06.2013 with noting that the “copy sent to Superior Officer through constable Kishore Rout” is available on Ext.17. The seal of the office of Deputy Commissioner of Excise, Cuttack dated 12.06.2013 is also available on Ext.17 and Ext.17 was seized by P.W.4 on 16.08.2013 as per the endorsement on Ext.17. Except putting some suggestions in the cross-examination, nothing has been elicited to disbelieve the testimony of P.W.4 regarding sending Ext.17 to the Commissioner of Excise through constable Kishore Rout. Even though excise constable Kishore Rout or the Commissioner of Excise has not been examined by him as stated by P.W.4 but in view of the available documentary evidence (Ext.17) with endorsement of Kishore Rout, dispatch register number and seal of the office of Deputy Commissioner of Excise all dated 12.06.2013 as well as oral evidence, I am of the view that P.W.4 has not only reduced the credible information into writing vide Ext.17 but has also sent the same to the Commissioner of Excise on 12.06.2013 which was received in the office of Deputy Commissioner of Excise, Cuttack on 12.06.2013. In case of Karnail Singh -Vrs.-State of Haryana reported in (2009) 44 Orissa Criminal Reports (SC) 183, a constitution Bench of the Hon’ble Supreme Court held as follows:- “17. In conclusion, what is to be noticed is Abdul Rashid Ibrahim Mansuri -Vrs.-State of Gujarat : (2000) 2 SCC 513 did not require literal compliance with the requirements of sections 42(1) and 42(2) nor did Sajan Abraham -Vrs.-State of Kerala: (2001) 6 SCC 692 hold that the requirements of section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) 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). (b) 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. (c) In other words, 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. (d) 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. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” Therefore, I am of the view that section 42(2) of the N.D.P.S. Acthas been complied with. (ii) The contention of the learned counsel for the appellant regarding non-compliance of section 50 of the N.D.P.S. Act is concerned, P.W.4 has stated that at Matimandap Sahi at about 3 p.m. he detected the appellant walking away holding one brown colour bag (M.O.I) and he immediately detained him. He sent a letter of request (Ext.18) to the Sub Divisional Magistrate –cum-Sub Collector, Puri for deputation of an Executive Magistrate for searching the bag. He also offered the appellant to exercise his option vide letter of option Ext.4 if he wanted to be searched in presence of the Executive Magistrate or any Gazetted Officer. The appellant gave his response letter vide Ext.6 in his own handwriting expressing his desire to be searched by P.W.4 in absence of any Magistrate. P.W.4 and other staffs gave their personal search in presence of the appellant and then P.W.4 conducted search of the bag (M.O.I) carried by the appellant and recovered three polythene packets (M.O.II, M.O.III, M.O.IV) from it and opening the packets and testing it, he ascertained the contents to be heroin which is commonly known as brown sugar. In case of Megh Singh -Vrs.-State of Punjab reported in (2003) 26 Orissa Criminal Reports (SC) 523, it is held as follows:- “15. Now comes the question whether there was non-compliance of Section 50 of the Act. 16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba –Vrs.-State of Maharashtra and Anr. (2000) 18 OCR (SC) 45, The State of Punjab -Vrs.-Baldev Singh (1999) 17 OCR (SC) 275, Gurbax Singh -Vrs.-State of Haryana (2001) 3 SCC 28 ). It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba –Vrs.-State of Maharashtra and Anr. (2000) 18 OCR (SC) 45, The State of Punjab -Vrs.-Baldev Singh (1999) 17 OCR (SC) 275, Gurbax Singh -Vrs.-State of Haryana (2001) 3 SCC 28 ). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance.” In case of Ajmer Singh -Vrs.-State of Haryana reported in (2010) 45 Orissa Criminal Reports (SC) 807, it is held as follows:- “15. It appears from the evidence on record that the accused was confronted by ASI Maya Ram and other police officials on 24.1.1996 and he was informed that he has the right to either be searched before the Gazetted Officer or before a Magistrate and the accused choose the later. Thereafter, the accused was taken to the DSP, Pehowa, Shri Paramjit Singh Ahalawat and as directed by him, the bag carried by accused on his shoulder was searched and the charas was found in that bag. Thus, applying the interpretation of the word "search of person" as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance of Section 50 of the Act is not required. Therefore, the search conducted by the investigation officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned Counsel of the appellant as regards the non-compliance of Section 50 of the Act.” In case of State of Rajasthan -Vrs.- Parmanand & Anr. reported in (2014) 57 Orissa Criminal Reports (SC) 1087, it is held as follows:- “12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the N.D.P.S. Act will have no application. reported in (2014) 57 Orissa Criminal Reports (SC) 1087, it is held as follows:- “12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the N.D.P.S. Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the N.D.P.S. Act will have application.” In the present case not only the bag (M.O.I) carried by the appellant was searched but also his person was also searched and therefore, section 50 of the N.D.P.S. Act has got application. However, in view of the materials available on record, the contention regarding non-compliance of section 50 of the N.D.P.S. Act as was raised by the learned counsel for the appellant is without any substance. (iii) The contention of the learned counsel for the appellant regarding non-compliance of section 52 of the N.D.P.S. Act is concerned, it appears that P.W. 4 has prepared the ground of arrest in respect of the appellant on 12.06.2013 vide Ext.16/2 and the appellant was also given a copy of the same. The appellant has put his signature and date on Ext.16/2 and the time of arrest has been shown to be 12.06.2013 at 5.30 p.m. Therefore, section 52(1) of the N.D.P.S. Act has been complied with. Since the appellant was neither arrested nor the article was seized from his possession under any warrant issued under subsection (1) of section 41 of the N.D.P.S. Act, the occasion for compliance 52(2) of the N.D.P.S. Act does not arise. Since the appellant was taken from the spot of detection straight to the Court immediately and produced before the S.D.J.M., Puri, the non-compliance of sub-sections (3) and (4) of section 52 of the N.D.P.S. Actno way affects the prosecution case. Therefore, I am of the view that the contention raised by the learned counsel for the appellant that P.W.4 deliberately flouted the provisions under section 52 of the N.D.P.S. Acthas no sufficient force. (iv) The contention of the learned counsel for the appellant regarding non-compliance of section 57 of the N.D.P.S. Act is concerned, it requires that any person making any arrest or seizure under the N.D.P.S. Act shall make a full report of all the particulars of such arrest or seizure to his official superior within forty-eight hours next after such arrest or seizure. P.W.4 submitted a report of arrest, search and seizure before the Excise Deputy Commissioner (C.D.), Cuttack on 13.06.2013 in compliance of the provision under section 57 of the N.D.P.S. Act. The report has been marked as Ext.22 and with such report, report of arrest and search and seizure in Form No.C-4 was also sent. Ext.22 contains the seal of the office of Deputy Commissioner of Excise, Cuttack dated 13.06.2013. Therefore, I am of the view that provisions under section 57 of the N.D.P.S. Act has been duly complied with. In case of Gurbax Singh -Vrs.-State of Haryana reported in AIR 2001 SC 1002 , it is held that it is true that provisions of Sections 52 and 57 of the N.D.P.S. Act are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In case of State of Punjab -Vrs.-Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283, it is held that the provisions of sections 52 and 57 of the N.D.P.S. Act which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. In view of the above discussions under (iii) and (iv), the contentions raised by the learned counsel for the appellant that there is non-compliance of provisions under section 52 and 57 of the N.D.P.S. Act are not acceptable. Whether safe custody of the sample prior to its arrival before the chemical examiner is doubtful? The order-sheet of the learned S.D.J.M., Puri dated 12.06.2013 indicates that the sealed sample packets S-1, S-2 and S-3 along with the forwarding report bearing the impression and seal of the Court were kept in one envelop and sealed in presence of the Magistrate. Similarly another forwarding report was kept in another envelop which was duly sealed and signed with the impression and seal of the Court. Similarly another forwarding report was kept in another envelop which was duly sealed and signed with the impression and seal of the Court. The learned S.D.J.M. handed over the sealed sample packets having forwarding report along with another envelope containing only forwarding report duly sealed and signed to the Investigating Officer with a direction to deposit the same with the Chemical Examiner -cum-Deputy Drugs Controller, S.D.T. & R.L., Bhubaneswar for examination and report. P.W.4 has proved the letter of the Court of S.D.J.M., Puri vide Ext.19. He stated that since it was late at night due to the collection of samples of the seized brown sugar, the sealed packets were kept with the Inspector in Charge, Town Police Station, Puri for that day. The request letter of P.W.4 to I.I.C. of Town Police Station dated 12.06.2013 has been marked as Ext.21 which bears the endorsement of the I.I.C. to have received the sealed sample packets on 12.06.2013 at 7.10 p.m. Ext.21 further reveals that the I.I.C. handed over the sealed sample packets to P.W.4 on 13.06.2013 at 8.00 a.m. which was received by P.W.4 with endorsement. The chemical examination report marked as Ext.20 indicates that one sealed envelope containing three different sealed match boxes each containing 5 grams of heroin marked as S-1, S-2 & S-3 was received and the seals on the samples were intact and identical with the specimen impression of the seal given on the forwarding memo. Therefore, the contentions raised by the learned counsel for the appellant that the safe custody of the sample prior to its arrival before the Chemical Examiner is doubtful cannot be accepted. 8. In view of the evidence available on record and my analysis of the evidence and the law leads me to conclude that the prosecution has successfully established the guilt of the appellant for the charge under section 21(c) of the N.D.P.S. Act without any doubt and learned Trial Judge has rightly came to a finding of guilt against the appellant and therefore in my view, the impugned judgment of conviction is justified. Adverting to the question of sentence, it is indisputable that the learned Trial Court has imposed the minimum sentence prescribed for such offence. Adverting to the question of sentence, it is indisputable that the learned Trial Court has imposed the minimum sentence prescribed for such offence. Therefore, I am of the view that the impugned judgment and order of conviction of the appellant under section 21(c) of the N.D.P.S. Act and sentence to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo rigorous imprisonment for two years as was imposed by the learned Trial Court is legal, proper and justified. Accordingly, the criminal appeal being devoid of merits, stands dismissed.