JUDGMENT : S.K. SAHOO, J. The two appellants Biswanath Bisoi @ Harijan and Biren Mandal @ Birendra Mandal faced trial in the Court of the learned Addl. Sessions Judge-cum-Special Judge, Malkangiri in Criminal Trial. 114 of 2008 for the offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘the N.D.P.S. Act’) on the accusation that on 07.12.2008 in between 8.00 a.m. to 3.00 p.m. at Govindapali near Balimela chawk, they were found in possession and transportation of 478 kgs. of contraband ganja without any authority and permit. The learned Trial Court vide impugned judgment and order dated 29.03.2010 found both the appellants guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced each of them to undergo R.I. for a period of ten years and also to pay a fine of Rs.2,00,000/- (rupees two lakhs only) each, in default of payment of fine, to undergo further R.I. for a period of two years each. 2. The prosecution case, in short, is that on 07.12.2008 P.W.4 Ashok Kumar Seth who was the S.I. of Excise, in charge District Mobile, Malkangiri along with other staff were performing patrolling duty on the road in between Govindapalli to Balimela and during patrolling, P.W.4 received reliable information regarding illegal transportation of contraband ganja in a truck bearing registration no.CG-04-ZC-1604. He reduced the information into writing and sent the same to his immediate Superior Officer vide Ext.4 through a constable Ram Chandra Satapathy. P.W.4 and other patrolling party members waited at Tiluguda near Govindapalli awaiting for the arrival of the said truck and after some time, the truck came from Balimela side towards Govindapalli and they tried to detain the truck but the driver did not stop the vehicle and sped away from the spot. The excise officials chased after the truck and could manage to stop it near Biju Patnaik College, Govindapalli and they found that both the appellants were present inside the truck and appellant Biswanath Bisoi was occupying the driver’s seat. Both the appellants disclosed their identity. P.W.4 disclosed his intention to search the vehicle and asked the option of the appellants whether they intend to be searched in presence of any Executive Magistrate or Gazetted Officer to which they stated that they intend to be searched in presence of the Executive Magistrate. Both the appellants disclosed their identity. P.W.4 disclosed his intention to search the vehicle and asked the option of the appellants whether they intend to be searched in presence of any Executive Magistrate or Gazetted Officer to which they stated that they intend to be searched in presence of the Executive Magistrate. The written option in that respect vide Exts.5 and 6 were taken from the appellants and then requisition was sent through constable to the headquarters for an Executive Magistrate and then two independent witnesses of that locality were also called. It is the further prosecution case that after arrival of the Executive Magistrate (P.W.2) at the spot, P.W.4 apprised him of all the details about the detection of the case and also the intention of the appellants for their search in the presence of the Executive Magistrate. P.W.4 and others staff gave their personal search to the appellants as well as to the Executive Magistrate but nothing was found from their possession. P.W.4 searched the person of the appellant Biren Mandal first and recovered cash of Rs.200/- (rupees two hundred only) from the pant pocket and one Nokia mobile set from his shirt pocket and then on search of appellant Biswanath Bisoi @ Harijan, cash of Rs.100/- (rupees one hundred only), voter identity card and duplicate driving licence were recovered from his pant pocket. Some documents of the vehicle which were kept in a leather bag inside the cabin of the truck were also seized. On search of the secret chamber between the cabin and dala of the truck, P.W.4 found 61 pressed packets with smell of ganja. He collected small quantity of the contents from each of the said packets and subjected the same to smell test as well as burn test and from the aforesaid test as well as from his departmental experience of thirteen years, P.W.4 came to the conclusion that the contents were contraband ganja. P.W.4 weighed the contents of all the packets with the help of his staff and found it to be 4 quintals 78 kgs of contraband ganja in total. On demand of P.W.4, the appellants failed to produce any permit or authority to possess and transport the ganja and on being asked, they disclosed that they were carrying the ganja from Chitrakonda side towards Chhatisgarh. On demand of P.W.4, the appellants failed to produce any permit or authority to possess and transport the ganja and on being asked, they disclosed that they were carrying the ganja from Chitrakonda side towards Chhatisgarh. P.W.4 seized all the contraband articles, documents of the vehicle, the vehicle as well as the cash, mobile set etc. belonging to the appellants at the spot in presence of the witnesses and prepared seizure list Ext.1/1. P.W.4 also collected sample of 25 grams in duplicate from each packets totaling 122 packets and sealed the same by paper seal containing the signatures of the Executive Magistrate, accused persons, witnesses and also his own signatures. P.W.4 affixed brass seal on all the sample packets and he also adopted the same procedure in sealing the bulk ganja in the pressed packets. P.W.4 handed over the brass seal in the zima of the Executive Magistrate under zimanama Ext.3/1. He handed over the copy of the seizure list to the appellants separately and their signatures were obtained in token of receipt of the same. He recorded the statements of the appellants at the spot and returned back to his office at Malkangiri along with the appellants, seized vehicle, contraband ganja and other articles. On the same day at 9.00 p.m., P.W.4 produced the appellants along with seizure list, memo of arrest, spot map, zimanama, exercise of options sheet by the appellants, source of information sheet and forwarding reports before the learned Special Judge, Malkangiri and the appellants were remanded to jail custody and under the orders of the learned Special Judge, Malkangiri, the seized articles were produced on 09.12.2008 before the learned S.D.J.M., Malkangiri and on the prayer of P.W.4, the learned S.D.J.M., Malkangiri sent one set of sample packets to the S.D.T.R.L., Orissa, Bhubaneswar for chemical analysis. On chemical analysis, the chemical examiner found all the 61 sample packets to be ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act. P.W.4 submitted the full compliance report in terms of section 57 of the N.D.P.S. Act on the very day i.e. on 07.12.2008 to the Superintendent of Excise, Malkangiri and after completion of investigation, P.W.4 submitted the prosecution report. 3. The defence plea is one of denial and it is further pleaded that nothing was seized from the possession of the appellants and they have been falsely entangled in the case. 4. 3. The defence plea is one of denial and it is further pleaded that nothing was seized from the possession of the appellants and they have been falsely entangled in the case. 4. During course of trial, in order to prove its case, the prosecution examined four witnesses. P.W.1 Hara Prasad Mahapatra is an independent witness who did not support the prosecution case for which he was declared hostile by the prosecution. P.W.2 Romanchala Khamari was the Tahasildar, Mathili who arrived at the spot as per the order of the Sub-Collector, Malkangiri and he stated about the seizure of contraband ganja from the cabin of the truck and other formalities of search and seizure which was conducted by P.W.4. P.W.3 James Malcom Sahu was the Excise constable, Malkangiri and he accompanied P.W.4 and others to the spot and he also stated about the seizure of contraband ganja from the secret chamber of the offending vehicle and he also stated about other formalities of search and seizure which was conducted by P.W.4. He is a witness to the seizure list. P.W.4 Ashok Kumar Seth was the S.I. of Excise, in charge District Mobile, Malkangiri and he not only searched the offending vehicle after complying the relevant procedural safeguards but also stated to have recovered the contraband ganja from the cabin of the truck. He is also the investigating officer of the case who on completion of investigation submitted the prosecution report. The appellant Birendra Mandal examined himself as D.W.1 and he stated that on 07.12.2008 while he was taking tea in a tea-stall at Govindapalli along with the other appellant, the excise staff called them and took them to Excise Office, Malkangiri and obtained their signatures on some blank papers. The prosecution exhibited nine documents. Ext.1/1 is the seizure list, Ext.2/1 is the written option, Ext.3/1 is the zimanama, Ext.4 is the copy of the information, Exts.5 and 6 are the written options of the appellants, Ext.7 is the forwarding report, Ext.8 is the compliance report and Ext. 9 is the chemical examination report. The prosecution also proved sixty four material objects. M.O.I to M.O.LXI are the sample packets, M.O.LXII and LXIII are the money purses of the appellants and M.O. LXIV is the mobile set. 5. 9 is the chemical examination report. The prosecution also proved sixty four material objects. M.O.I to M.O.LXI are the sample packets, M.O.LXII and LXIII are the money purses of the appellants and M.O. LXIV is the mobile set. 5. The learned Trial Court after assessing the evidence on record has been pleased to observe that on scrutiny of the evidence of P.W.2 to P.W.4, it clearly reveals that their evidence is quite cogent and consistent so far as the alleged detection, search of the vehicle in question and seizure of contraband ganja are concerned. It is further held that the evidence of P.Ws.2 to 4 with regard to search and seizure has not been substantially shaken during their cross-examination and all the documents from Exts.1 to 9 proved on behalf of the prosecution has been exhibited without any objection from the side of the defence. The learned Trial Court further held that the delay of only two to three days or even one week in sending the sample to the S.D.T.R.L., Orissa, Bhubaneswar for chemical examination is in no way fatal for the prosecution case particularly when the proper and safe custody of the seized articles has not been seriously challenged by the defence. Learned Trial Court further held that since it is clear case of chance recovery, there is no violation of section 42 of the N.D.P.S. Act by the prosecution. It is further held that on scrutiny of the entire oral and documentary evidence, it is clear that P.W.4 recovered 61 packets of pressed contraband ganja from the unlawful possession of the appellants and that the defence plea of the appellants that they have been falsely implicated in the case cannot be safely accepted. 6. Mr. It is further held that on scrutiny of the entire oral and documentary evidence, it is clear that P.W.4 recovered 61 packets of pressed contraband ganja from the unlawful possession of the appellants and that the defence plea of the appellants that they have been falsely implicated in the case cannot be safely accepted. 6. Mr. Biswa Kumar Mishra, learned counsel appearing for the appellants while challenging the impugned judgment and order of conviction contended that even though the search and seizure of the contraband ganja was made on 07.12.2008 and the appellants were also produced before the learned Special Judge, Malkangiri on the very day in the night but the seized ganja and the sample packets which were meant for chemical analysis were not produced before the Court on that day and even though it was produced on 09.12.2008 before the learned S.D.J.M., Malkangiri and judicial order was passed by the learned S.D.J.M., Malkangiri to send it for chemical examination but the sample packets were received at the State Drugs Testing Research and Research Laboratory, Orissa, Bhubaneswar only on 15.12.2008 and therefore, there is absolutely no material as to in what condition and in whose custody the contraband ganja and sample packets were kept on the date of seizure as well as on the next day and the sample packets were kept from 09.12.2008 till it was produced before the chemical examiner on 15.12.2008. It is contended that though the investigating officer stated that the seized articles were produced before the learned Special Judge, Malkangiri when the accused persons were produced but the same is not borne out of record. It is further contended that though the investigating officer stated that the seized articles were kept in Court Malkhana of S.D.J.M., Malkangiri on 09.12.2008 but the order sheet of the learned S.D.J.M., Malkangiri runs contrary to such statement. It is further contended that though P.W.4 has stated that the sample packets were kept in his office Malkhana after the order was passed by the learned S.D.J.M., Malkangiri to send the sample packets for chemical examination but neither the Malkhana register has been produced and proved during trial nor the officer who is in charge of the Malkhana has been examined to substantiate the same. It is further contended that when a judicial order was passed by the learned Special Judge, Malkangiri on 07.09.2017 to produce the seized articles before the learned S.D.J.M., Malkangiri, there was no earthly reason on the part of P.W.4 not to produce the same on 08.12.2008 and 8th the statement made by the investigating officer that December was a Sunday is not at all correct, in fact 08.12.2008 was a Monday. It is further contended that the learned Trial Court has not at all given due importance to the safe custody of the contraband ganja and the sample packets and prior to its production for the first time in Court and also before the chemical examiner and mechanically observed that the delay of two to three days or even one week in sending the sample to the S.D.T.R.L., Orissa, Bhubaneswar for chemical examination is no way fatal for the prosecution case. The learned counsel further contended that P.W.4 being the officer who has searched and seized the contraband articles, in all fairness of things, he should not have investigated the case and submitted the prosecution report which has caused serious prejudice to the appellants. In support of such contention, the learned counsel for the appellants placed reliance in the case of Prasanta Kumar Behera -Vrs.-State of Orissa reported in (2016) 64 Orissa Criminal Reports 40. The learned counsel further contended that since it is the settled principle of law that the entire path right from the seizure of the contraband articles till its production before the chemical examiner has to be covered by the prosecution by cogent evidence showing that there is no chance of tampering with the seized articles and the contraband articles which were seized at the spot were the very articles produced before the chemical examiner and the same having not been done, benefit of doubt should be extended in favour of the appellants. Mr. Arupananda Das, learned Addl. Govt. Advocate appearing for the State on the other hand supported the impugned judgment and contended that the learned Trial Court has elaborately discussed the evidence on record and came to a finding that the prosecution has clearly established the charge under section 20(b)(ii)(C) of the N.D.P.S. Act for unlawful possession and transportation of 478 kgs. of contraband ganja and there is no infirmity or illegality in the impugned judgment and therefore, the appeal deserves to be dismissed. of contraband ganja and there is no infirmity or illegality in the impugned judgment and therefore, the appeal deserves to be dismissed. 7. P.W.4 who was the S.I. of Excise, in-charge District Mobile, Malkangiri searched the offending vehicle CG-04-ZC-1604 on 07.12.2008 and seized the contraband ganja and he is also the Investigating Officer who submitted the final prosecution report. In case of Prasanta Kumar Behera -Vrs.-State of Orissa reported in (2016) 64 Orissa Criminal Reports 40, after relying upon the decision of the Hon’ble Supreme Court in case of State by Inspector of Police -Vrs.-Rajangam reported in (2010) 15 Supreme Court Cases 369 and Megna Singh -Vrs.-State of Haryana reported in 1995 Criminal Law Journal 3988, it was held that P.W.4 who was the officer who conducted search and seizure of the contraband articles should not have investigated the case. In case of Mahendra Singh Rana @ Batu -Vrs.-State of Orissa reported in (2016) 65 Orissa Criminal Reports 700, it is held that in a case were stringent punishment has been prescribed, ordinarily if a police officer is the informant, in the fairness of things, the investigation should be conducted by some other empowered police officer or at list the investigation should be supervised by some other senior police officer as the informant police officer is likely to 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 the present case, P.W.4 appears to have made wrong statements deliberately relating to production of seized articles along with the appellants on the date of seizure before the learned Special Judge, Malkangiri and also keeping of the seized articles in the Court Malkhana of S.D.J.M., Malkangiri on 09.12.2008. He appears to be an interested witness making wrong statements contrary to record. Therefore, the submission of the learned counsel for the appellants that P.W.4 should not have conducted investigation of the case and submitted final prosecution report and that it has caused serious prejudice to the appellants, has got substantial force. 8. He appears to be an interested witness making wrong statements contrary to record. Therefore, the submission of the learned counsel for the appellants that P.W.4 should not have conducted investigation of the case and submitted final prosecution report and that it has caused serious prejudice to the appellants, has got substantial force. 8. It is the prosecution case that on 07.12.2008 the offending vehicle bearing registration No.CG-04-ZC-1604 was searched by P.W.4 in presence of the Executive Magistrate (P.W.2), Excise Constable (P.W.3) and others and from the secret chamber in between cabin and dala, 61 pressed packets with smell of ganja was found. After preparation of the sample packets and seizure lists, the appellants were produced before the learned Special Judge, Malkangiri on the very day at about 9.00 p.m. P.W.4 has stated that the seized articles were produced before the learned Special Judge, Malkangiri on that day. The order sheet of the learned Special Judge reveals that neither the contraband ganja nor the sample packets were produced on that day rather a prayer was made by P.W.4 to send the 61 sample packets marked as 1/A to 61/A to the S.D.T.R.L., Orissa, Bhubaneswar for chemical examination and opinion and further prayer was made to deposit the duplicate sample packets marked as 1/B to 61/B and also the contraband ganja weighing 478 kgs in the Court Malkhana. The order sheet further reveals that the prayer made by the Investigating Officer was allowed by the learned Special Judge, Malkangiri and the learned S.D.J.M., Malkangiri was directed to receive the seized contraband ganja along with duplicate sample packets and keep the same in the Court Malkhana. The contraband ganja as well as the sample packets was not produced before the learned S.D.J.M., Malkangiri on 08.12.2008 even though it was Monday. The contraband ganja as well as the sample packets was not produced before the learned S.D.J.M., Malkangiri on 08.12.2008 even though it was Monday. The order sheet of the learned S.D.J.M., Malkangiri dated 09.12.2008 indicates regarding opening of a part file after receipt of the extract of the order of the learned Special Judge, Malkangiri and the learned S.D.J.M., Malkangiri further directed that the materials objects i.e. M.O.1/A to 61/A which were kept in one packet be sent for chemical examination vide office letter no.2554 dated 09.12.2008 and the other sample packets marked as M.O. 1/B to M.O. 61/B and the mal items were directed to be returned to S.I. of Excise, Malkangiri (P.W.4) to keep the same in his safe custody until further orders as the charge of Malkhana of the S.D.J.M. Court, Malkangiri have not yet been fully completed. Therefore, the statement of P.W.4 that on 07.12.2008 he produced the seized articles before learned Special Judge, Malkangiri along with the appellants on the date of occurrence is factually incorrect. His further statement that the appellants were remanded to jail custody on 07.12.2008 and as per the orders of the Court, the seized articles were kept in Court Malkhana of the S.D.J.M., Malkangiri on 09.12.2008 is also factually incorrect in view of the order dated 09.12.2008 passed by the learned S.D.J.M., Malkangiri. The investigating officer further stated that after the order was passed by the learned S.D.J.M., Malkangiri on 09.12.2008 for sending the sample packets for chemical examination, the sample packets were in his custody in his office malkhana and though the order was passed 09.12.2008 but the same was sent on 12th for chemical examination as 10th and 11th are public holidays. He admits that no certificate has been furnished by the Executive Magistrate about the proper sealing of the sample packets in his presence. Therefore, from the evidence of the P.W.4 as well as from the order sheets of the learned Special Judge, Malkangiri as well as learned S.D.J.M., Malkangiri, it is clear that from the date of seizure of contraband ganja, the same was with P.W.4 till 09.12.2008 when it was produced for the first time before the learned S.D.J.M., Malkangiri and again from 09.12.2008 till 15.12.2008 when it was produced before the chemical examiner. The statement made by P.W.4 that he produced the sample packets before the chemical examiner on 12.12.2008 cannot be accepted inasmuch as the chemical examiner report which has been marked as Ext.9 clearly indicates about the date of receipt of the sample packets to be 15.12.2008. There is absolutely no material as to where, in what condition and with whom the contraband ganja and its samples were kept from 07.12.2008 till 09.12.2008 at the first instance when it was produced for the first time before the learned S.D.J.M., Malkangiri. Though the Investigating Officer has stated that he has mentioned about the entry of seized ganja in Malkhana register in his case diary, but the Malkhana register has not been proved nor the person who is in charge of the Malkhana has been examined to substantiate such vital aspect. In case of Bayamani Mandinga -Vrs.-State of Orissa reported in (2016) 64 Orissa Criminal Reports 1, it is observed that the document 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. It was further held that 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 appellants. P.W.2 who is the Tahasildar of Mathili has stated that the personal brass seal of P.W.4 was given in his zima on execution of zimanama. The brass seal was not produced before the learned S.D.J.M., Malkangiri when the sample packets were produced for verification. In the aforesaid case of Bayamani Mandinga (supra), it is held that there is no evidence that the specimen seal impression which was given on the seized articles was produced before this Court at the time of production of the seized articles for verification. In the aforesaid case of Bayamani Mandinga (supra), it is held that there is no evidence that the specimen seal impression which was given on the seized articles was produced before this Court at the time of production of the seized articles for verification. It is 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. In this case, since the order sheet of the learned S.D.J.M., Malkangiri is silent on such vital aspect, it can be presumed that there was no such production of the brass seal which was kept with P.W.2 and there was no verification by the learned S.D.J.M., Malkangiri regarding the specimen seal impression which was given on the sample packets. In fact the order sheet of the learned S.D.J.M., Malkangiri is silent regarding the production of seized samples in sealed condition before him on 09.12.2008 or sealing of the seized sample packets in his presence before it was sent for chemical analysis. P.W.4 has stated that no certificate has been given by the Executive Magistrate (P.W.2) about the proper sealing of the sample packets in his presence. All these create doubt regarding proper sealing of the sample packets, putting of brass seal on the seized sample packets and keeping such packets in safe custody eliminating any chance of tampering with the same. 9. In view of the aforesaid glaring defects in the prosecution case and absence of any clinching materials that the seized articles were kept in safe custody till its production in Court and also before the chemical examiner, I am of the view that it would be risky to uphold the order of conviction. In the result, the criminal appeal is allowed and the impugned judgment and order of conviction of the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence of R.I. for 10 (ten) years and payment of fine of Rs.2,00,000/- (rupees two lakhs only), in default to undergo R.I. for 2 (two) years more as was imposed by the learned Trial Court is hereby set aside. The appellants who are in jail custody in connection with this case shall be released forthwith, if their detention is not otherwise required in any other case. Lower Court records with a copy of the judgment be sent down to the learned Trial Court forthwith for information.