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2018 DIGILAW 583 (ORI)

Ghadua Muduli v. State of Orissa

2018-05-25

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - The appellants Ghadua Muduli and Tularam Bhoi @ Tulu faced trial in the Court of learned Addl. Sessions Judge - cum- Special Judge, Jeypore in Criminal Trial No. 38 of 2010 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 04.02.2009 at about 5.00 a.m. on N.H. 43 near village Tangini, they were found transporting commercial quantity of 270 kilograms of contraband ganja in a Bolero vehicle bearing registration No.OR-02-AS-0344 without any license in contravention of provision of the N.D.P.S. Act. The learned trial Court vide impugned judgment and order dated 15.03.2011 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to suffer further rigorous imprisonment for two years. 2. The prosecution case, as per the first information report (Ext.10) lodged by Hemanta Kumar Panda (P.W.4), Inspector in charge of Pottangi police station on 04.02.2009 is that on that day in the night at about 2.30 a.m., he received reliable information that contraband ganja was being transported in a Bolero vehicle bearing registration no.OR-02-AS-0344 from Koraput side towards Salur. He made P.S. station diary entry no.68 dated 04.02.2009 and since he had reason to believe that delay would be caused in obtaining the search warrant which would facilitate the accused persons to escape with contraband ganja, he thought it prudent to conduct raid without obtaining search warrant. P.W.4 accordingly recorded the grounds of belief in the station diary and sent a report to the Superintendent of Police, Koraput who was his immediate superior officer after making P.S. D.R. No. 173 dated 04.02.2009. Constable C/295 R.N. Biswal was asked to hand over the report to Superintendent of Police, Koraput. Then P.W.4 along with other staff proceeded towards Sunki in police jeep for detection of the case. It is the further prosecution case as per the first information report that on 04.02.2009 at about 5.00 a.m., P.W.4 found one Bolero vehicle bearing registration no.OR-02-AS-0344 was coming from Koraput side. He stopped the vehicle with the assistance of his staff on N.H.43 near village Tangiri. Two occupants were found in the vehicle and smell of ganja was coming from the vehicle. He stopped the vehicle with the assistance of his staff on N.H.43 near village Tangiri. Two occupants were found in the vehicle and smell of ganja was coming from the vehicle. P.W.4 called one independent witness Bhuban Prasad Roula (P.W.2) of village Pottangi and suspecting that contraband ganja was being transported, he asked the driver of the vehicle about his identity who disclosed his name as Tularam Bhoi @ Tulu (appellant no.2) and the other occupant gave his identity as Ghadua Muduli (appellant no.1). When P.W.4 expressed his intention to search the vehicle and gave his option to both the appellants as to whether they were willing to be searched before any Executive Magistrate or any Gazetted Officer, they submitted their wilingness to be searched in the presence of Executive Magistrate. P.W.4 sent requisition to the District Magistrate, Koraput for deputing one Executive Magistrate to the spot and guarded the vehicle till the arrival of the Executive Magistrate. P.W.5 Sunil Kumar Nayak who was the Executive Magistrate -cum- B.D.O., Pottangi arrived at the spot on 04.02.2009 at 3.00 p.m. and in his presence, the personal searches of P.W.4 as well as other witnesses were taken and nothing objectionable articles were found. Then the Bolero vehicle was searched and 28 nos. of gunny bags containing ganja were found inside the vehicle. P.W.4 called the weighman namely Bipra Charan Badtia (P.W.1) who came to the spot with weighing instruments to weigh the ganja. After P.W.1 took the weight, P.W.4 prepared a weighment chart and sample packets of 24 grams in duplicate from each of the ganja packets. Paper slips containing signatures of the appellants, witnesses, P.W.5, weighman were prepared and personal seal impression of P.W.4 was given on the same. A paper slip was also kept inside the polythene packet which contained sample ganja. Thereafter it was kept in a paper envelope and sealed with the personal seal of P.W.4. A paper slip was also kept in the bulk ganja packets which were also sealed properly with the personal brass seal impression of P.W.4. P.W.4 prepared the seizure list of the bulk exhibits and also the sample packets. He also seized the offending vehicle which was used for transportation of ganja. The appellants and the witnesses put their signatures in the seizure list. The personal brass seal impression of P.W.4 was given on the seizure list. P.W.4 prepared the seizure list of the bulk exhibits and also the sample packets. He also seized the offending vehicle which was used for transportation of ganja. The appellants and the witnesses put their signatures in the seizure list. The personal brass seal impression of P.W.4 was given on the seizure list. Copy of the seizure list was handed over to each of the appellants and personal seal of P.W.4 was given in the zima of P.W.5, the Executive Magistrate. As prima facie case under section 20(b) of the N.D.P.S. Act was made out against the appellants, they were arrested by P.W.4 after explaining the grounds of arrest and intimation was given to their family members. After detection of the case, P.W.4 drew up a plain paper F.I.R. at the spot and returned to the police station with the appellants along with the seized materials and registered Pottangi P.S. Case No. 05 dated 04.02.2009 under section 20(b) of the N.D.P.S. Act. He continued with the investigation of the case and kept the 28 nos. of seized gunny bags of ganja in the Malkhana of the police station along with 56 nos. of sample packets. The weighing instruments which were seized from the weighman were given in his zima. P.W.4 sent a full report of arrest and seizure under section 57 of the N.D.P.S. Act to the Supdt. of Police, Koraput on 05.2.2009 and on the very day, he forwarded the appellants to the Court of learned Sessions Judge -cum- Special Judge, Koraput-Jeypore and also prayed for a direction to the clerk in-charge of Malkhana to receive the seized ganja packets and 28 nos. of sample packets and also made a prayer to the Court to send the rest 28 nos. of sample packets to R.F.S.L., Berhampur for chemical analysis. The learned Sessions Judge -cum- Special Judge, Koraput directed P.W.4 to send the sample packets for chemical examination through S.D.J.M., Koraput. As per the orders of the Court, the sample packets were dispatched by the S.D.J.M., Koraput to R.F.S.L., Berhampur on 06.02.2009. On 07.02.2009 the bulk quantity of ganja packets were handed over the clerk in-charge of Malkhana, Jeypore. P.W.4 seized the station diary register, dispatch register and Malkhana register of Pottangi police station which were left in the zima of the S.I. Dayanidhi Nayak as per zimanama Ext.15. The Bolero vehicle was released in favour of the owner Dillip Ku. On 07.02.2009 the bulk quantity of ganja packets were handed over the clerk in-charge of Malkhana, Jeypore. P.W.4 seized the station diary register, dispatch register and Malkhana register of Pottangi police station which were left in the zima of the S.I. Dayanidhi Nayak as per zimanama Ext.15. The Bolero vehicle was released in favour of the owner Dillip Ku. Sahu (P.W.3) as per the order of the Court. P.W.4 received the chemical examination report (Ext.16) which indicated that the exhibits marked as A-1 to Z-1, AA-1 and AB-1 contained flowering and fruiting tops of cannabis plant, commonly known as ganja. As per the orders of the Supdt. of Police, Koraput, P.W.4 handed over the charge of investigation to Shri A.K. Patnaik, S.D.P.O., Sunabeda on 28.01.2010 who submitted charge sheet under section 20(b) of N.D.P.S. Act on 30.01.2010. 3. On receipt of charge sheet, the learned Sessions Judge -cum- Special Judge, Koraput-Jeypore took cognizance of offence under section 20(b)(ii)(C) of the N.D.P.S. Act on 02.02.2010. Charge was framed on 04.08.2010 and the appellants pleaded not guilty and claimed to be tried. 4. The defence plea of the appellants was one of denial. 5. In order to prove its case, the prosecution examined five witnesses. P.W.1 Bipra Charan Badtia was the weighman who came to the spot with the weighing instruments being called by the police and weighed the ganja found in 28 gunny bags and the total weight came to 270 kgs. He also prepared two sample packets of ganja of 24 grams each from each of the gunny bags. He is a witness to the seizure list Ext.1. He further stated about the seizure of the weighing instruments as per seizure list Ext.2 and taking zima of the same as per zimanama Ext.3. He proved the sample packets of ganja as well as twenty eight packets of bulk ganja seized by police. P.W.2 Bhubana Prasad Roulo is an independent witness who stated about the appellants carrying contraband ganja in the Bolero vehicle which was detained by P.W.4. He further stated about the search of the vehicle and seizure of the ganja packets located inside the vehicle in presence of the Executive Magistrate. He is a witness to the seizure list Ext.1 and also weighment chart Ext.4. He further stated about the search of the vehicle and seizure of the ganja packets located inside the vehicle in presence of the Executive Magistrate. He is a witness to the seizure list Ext.1 and also weighment chart Ext.4. P.W.3 Dillip Kumar Sahu was the owner of the offending Bolero vehicle and he stated that the appellant no.2 Tularam Bhoi @ Tulu was the driver of the vehicle and on 03.02.2009 he had taken the vehicle from him telling that he would carry a family from Sunabeda to Bhubaneswar and subsequently he came to know about the detention of the vehicle for illegal transportation of ganja. P.W.4 Hemanta Kumar Panda was the Inspector in charge, Pottangi police station who conducted the search and seizure of contraband ganja from the Bolero vehicle and he also investigated the case from the date of detection till 28.01.2010 when the investigation was handed over to one A.K. Patnaik, S.D.P.O., Sunabeda who on completion of investigation submitted charge sheet. P.W.5 Sunil Kumar Naik was the B.D.O. -cum- Executive Magistrate, Pottangi who came to the spot as per the direction of the District Magistrate, Koraput and was present when the search of Bolero vehicle was taken and 28 bags of ganja were recovered from the vehicle which on weighment found to be 270 kgs. He also stated about the preparation of the sample packets and further stated that he kept the brass seal with him which was handed over to him by P.W.4. The prosecution exhibited sixteen documents. Exts.1, 2 and 14 are the seizure lists, Exts.3, 5, 9 and 15 are the zimanamas, Ext.4 is the weighment chart, Ext.6 is the D.R. No. 173 dated 04.02.2009 of IIC, Pottangi P.S., Ext.7 is the option of appellant no.1 Ghadua Muduli, Ext.8 is the option of appellant no.2 Tularam Bhoi, Ext.10 is the F.I.R., Ext.11 is the formal F.I.R., Ext.12 is the carbon copy of detail report sent to S.P., Koraput, Ext.13 is the carbon copy of letter of S.D.J.M., Koraput to R.F.S.L., Berhampur and Ext.16 is the chemical examination report. The prosecution also proved forty seven material objects. M.O.I to XXVIII are the sample packets of ganja, M.O.XXIX to LVI are the packets of ganja, M.O.LVII is the brass seal. No witness was examined on behalf of the defence. 6. The prosecution also proved forty seven material objects. M.O.I to XXVIII are the sample packets of ganja, M.O.XXIX to LVI are the packets of ganja, M.O.LVII is the brass seal. No witness was examined on behalf of the defence. 6. The learned trial Court after analysing the evidence on record came to hold that stopping of the vehicle in question at the relevant point of time by the Pottangi police officials is well proved by the prosecution. Taking into account the evidence of independent witness (P.W.2), the Executive Magistrate (P.W.5) and the investigating officer (P.W.4), the learned trial Court came to hold that that the prosecution has well proved that huge quantity of ganja was being transported in the Bolero vehicle and there is no reason as to why the Executive Magistrate (P.W.5) would speak falsehood. It was further held that on a conspectus viewing of the evidence of P.Ws.2, 3, 4 and 5, it is a crystal clear that the appellant Tularam Bhoi was the driver of the vehicle and the appellant Ghadua Muduli was the lone occupant of the vehicle and commercial quantity of ganja was being transported by the two appellants in the vehicle without any authority. It was further held that the report of the chemical examiner marked as Ext.16 clearly revealed that it was nothing but flowering and fruiting tops of cannabis plant commonly known as ganja. Learned trial Court also came to hold that the prosecution has well proved that the appellants were possessing and transporting commercial quantity of ganja in a Bolero vehicle without any authority or license which proved the offence under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants. 7. Mr. Smruti Ranjan Mohapatra, learned counsel appearing for the appellants strenuously contended that mandatory provision under section 42 of the N.D.P.S. Act has not been complied with which has vitiated the search and seizure. He asserted that even though it is the prosecution case that on receiving reliable information relating to transportation of ganja, station diary entry was made by P.W.4 but neither the station diary entry nor the copy of the same was produced in Court during trial and marked as exhibit. He asserted that even though it is the prosecution case that on receiving reliable information relating to transportation of ganja, station diary entry was made by P.W.4 but neither the station diary entry nor the copy of the same was produced in Court during trial and marked as exhibit. It is further contended that there is every doubt of sending the grounds of belief to the Superintendent of Police, Koraput and the material witnesses in that respect have neither been examined nor material documents relating to the receipt of such a vital report at the S.P.’s office have been proved during trial and therefore, it is argued that everything has been subsequently stage managed to show the compliance of section 42 of the N.D.P.S. Act. Learned counsel for the appellants further contended that no witness of the locality from where the vehicle was detained and searched was examined and P.W.4 has not complied with the provisions laid down under section 100(4) of the Criminal Procedure Code as he had not called two or more independent and respectable inhabitants of the locality to remain present when the offending vehicle was searched and it appears that the seizure witness P.W.2 is a stock witness of the prosecution. Learned counsel for the appellants further contended that P.W.4 who was the Inspector in-charge of Pottangi police station has not only conducted the search and seizure but he is also the investigating officer and he being an interested witness should not have conducted the investigation which has resulted in causing serious prejudice to the appellants. Learned counsel for the petitioner further contended that P.W.4 was the Malkhana in-charge and though it is stated that the contraband articles and the sample packets after its seizure were kept in malkhana before its production in Court but neither the Malkhana register nor its copy were proved during trial. Learned counsel for the appellants further contended that the original report of arrest and seizure in compliance of the provision under section 57 of the N.D.P.S. Act has also not been proved and what was produced before the Court during trial was the carbon copy of such report. The learned counsel further submitted that though P.W.4 has stated that the brass seal was handed over to P.W.5 but the evidence of P.W.5 goes to show that the brass seal was with P.W.4 till it was produced in Court during trial. The learned counsel further submitted that though P.W.4 has stated that the brass seal was handed over to P.W.5 but the evidence of P.W.5 goes to show that the brass seal was with P.W.4 till it was produced in Court during trial. It is argued that since punishment prescribed under the N.D.P.S. Act are very stringent in nature, it was required on the part of the prosecution to prove that all the mandatory provisions are being duly complied with and the contraband articles and the sample packets were kept in safe custody till it is produced in Court and dispatched for chemical examination and in the case in hand, the prosecution has failed to bring clinching materials on record on those aspects and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. The learned counsel for the appellants placed reliance in the cases of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827, State of West Bengal -Vrs.- Babu Chakraborty reported in (2004) 29 Orissa Criminal Reports (SC) 378 and Bhima Gouda -Vrs.- State of Orissa reported in (1997) 12 Orissa Criminal Reports 203 relating to the effect of non-compliance of the provisions under sections 42(1) and 42(2) of the N.D.P.S. Act. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate on the other hand supported the impugned judgment and contended that since the vehicle was detained and search and seizure was made in a public place, therefore, section 43 of the N.D.P.S. Act and not section 42 of the N.D.P.S. Act is applicable in the case. He further contended the appellants were found in the offending vehicle when it was detained and the appellant no.2 was driving the vehicle and commercial quantity of ganja was found in it. He further submitted that in the presence of the Executive Magistrate (P.W.5), search of the vehicle was taken and ganja packets were recovered and the weighman (P.W.1) weighed the ganja and prepared sample packets which were sealed at the spot with paper slips and the bulk quantity of ganja packets and sample packets in sealed condition were kept in the police station malkhana and therefore, it cannot be said that there was any scope for tampering with the articles seized. He further submitted that even though the station diary entry book, diary book and Malkhana register were not produced in the trial Court but the seizure list indicates about the seizure of those documents and the oral evidence relating to keeping of the articles in malkhana has remained unshaken and therefore, the learned trial Court was justified in convicting the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act. 8. Adverting to the contentions regarding compliance of the provision under section 42 of the N.D.P.S. Act, in case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827 while discussing regarding the compliance of section 42 of the N.D.P.S. Act in case of a vehicle which was seized at the public place carrying contraband articles, it was held that since the jeep cannot be said to be a public conveyance within the meaning of Explanation to section 43 of the N.D.P.S. Act, hence, section 43 was clearly not attracted and provisions of section 42(1) proviso were required to be complied with and it was further held that the aforesaid statutory mandatory provisions having not complied with, the High Court did not commit any error in setting aside the conviction. The present is not a case where P.W.4 suddenly carried out search in the vehicle at a public place. P.W.4 himself stated that he received the reliable information regarding transportation of ganja in a Bolero vehicle and he has come up with a case of compliance of section 42 of the N.D.P.S. Act. There is no material that the offending vehicle comes within public conveyance and when search was conducted after recording information under section 42(1), therefore, even though the detention was made during night and seizure was made in a public place during day time, compliance of the provisions of section 42 of the N.D.P.S. Act is mandatory. The Hon’ble Supreme Court while discussing the provision under section 42 of the N.D.P.S. Act in case of State of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283 has been pleased to hold that the object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the benefit while carrying out arrest or search as provided under the proviso to section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates of the trial. The decision rendered in the case of Baldev Singh (supra) was further considered by a five-Judge Bench in the case of Karnail Singh -Vrs.- State of Haryana reported in (2009) 44 Orissa Criminal Reports (SC) 183 wherein it was held in the concluding paragraph as follows:- “17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham 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. 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.” In view of the settled position of law, now it is to be seen whether the contentions raised by the learned counsel for the appellants that there is non-compliance of mandatory provision under section 42(1) and 42(2) of the N.D.P.S. Act is sustainable or not. In the first information report (Ext.10), the Inspector in charge, Pottangi police station (P.W.4) has mentioned that when he received a reliable information at 2.30 a.m. regarding transportation of ganja in a Bolero vehicle bearing registration No.OR-02-AS-0344 from Koraput side towards Salur, he noted the fact vide P.S. S.D. vide S.D. Entry No. 68 dated 04.02.2009 and he believed that there would be delay caused in obtaining a search warrant which would facilitate the accused persons to escape with the contraband ganja and he thought it prudent to conduct raid without obtaining a search warrant. Accordingly, he recorded his grounds of belief in the P.S. station diary and sent a report to Superintendent of Police, Koraput who was the immediate superior as per the P.S. D.R. No.173 dated 04.02.2009. While deposing in Court, P.W.4 has also made similar statement. Though the station diary book and dispatch register of Pottangi police station were seized under seizure list Ext.14 on 08.02.2009 by P.W.4 along with Malkhana register but neither the station diary book nor the dispatch register was produced in Court during trial. Even the authenticated copies of the station diary and dispatch register were also not produced. Therefore, there was no material before the trial Court that any such entry was in fact been made. In view of the mandatory provision of section 42 of the N.D.P.S. Act, the Court is required not only to verify that the reliable information was taken down in writing but also the grounds of belief was also recorded as per the second proviso to section 42(1) of the N.D.P.S. Act and copy of the same was sent to the immediate official superior in view of subsection (2) of section 42 of the N.D.P.S. Act. P.W.4 has stated that he sent the report to Superintendent of Police, Koraput as per Ext.6 through C/295 R.N. Biswal and in that respect P.S. D.R. No.173 dated 04.02.2009 was made. The concerned constable through whom the report under Ext.6 is stated to have been dispatched has not been examined. P.W.4 admits that there is no initial or signature either of Superintendent of Police or any officer who is in charge of Superintendent of Police in token of having perused Ext.6. He has further stated that Ext.6 has not been diarized in the office of Superintendent of Police. P.W.4 admits that there is no initial or signature either of Superintendent of Police or any officer who is in charge of Superintendent of Police in token of having perused Ext.6. He has further stated that Ext.6 has not been diarized in the office of Superintendent of Police. He has further stated that though he had collected Ext.6 from the office of Superintendent of Police but he has not seized the same. On perusal of Ext.6, it appears that a seal impression of the Superintendent of Police finds place on it and the date has been given to be 04.02.2009 but no signature of any person from the S.P. office is there on Ext.6. Admittedly, nobody from the S.P. office has been examined to depose relating to the receipt of Ext.6 in their office and no seizure list has been prepared relating to seizure of Ext.6 from the office of Superintendent of Police, Koraput. Therefore, when the person concerned who carried Ext.6 to the office of Superintendent of Police, Koraput has not been examined, none of the persons from the office of Superintendent of Police, Koraput has been examined to say about the receipt of Ext.6 in their office, none of the documents from the office of Superintendent of Police, Koraput has been produced during trial relating to receipt of Ext.6 and even the receipt of such an important document has not been diarized and the dispatch register of Pottangi police station relating to dispatch of Ext.6 has not been proved, the contention of Mr. Mohapatra that there is every doubt relating to the compliance of the mandatory provision under section 42 of the N.D.P.S. Act has got substantial force. In a case of this nature where the prosecution is required to prove the compliance of the mandatory provision under section 42 of the N.D.P.S. Act, all the relevant documents which are connected with such compliance are required to be proved before the trial Court in accordance with law and similarly all the concerned witnesses should be examined in Court to prove the vital aspect. In absence of proof of the oral as well as documentary evidence relating to compliance of such provision, the prosecution case should be viewed with suspicion. 9. In absence of proof of the oral as well as documentary evidence relating to compliance of such provision, the prosecution case should be viewed with suspicion. 9. P.W.4 was the officer who conducted search and seizure and he is also the investigating officer who investigated the case from the date of seizure i.e. 04.02.2009 till 20.08.2010 and the subsequent officer formally submitted charge sheet one day after. The learned counsel for the appellants placed reliance in case of Bata Khrushna Sahu -Vrs.- State of Orissa reported in (2010) 45 Orissa Criminal Reports 606 wherein it has been held that P.W.8 who was the person who conducted the search and allegedly recovered gunny bags M.Os. I, II and III and therefore, the investigation of the case by P.W.8 himself renders the charge against the petitioner vulnerable. In case of Panchanan Das -Vrs.- State of Orissa reported in (2016) 65 Orissa Criminal Reports 702, I have held that in a case under the N.D.P.S. Act, where stringent punishment has been prescribed, ordinarily if a police officer is the informant in the 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, biased or has caused prejudice to the accused. Since the investigation of a case under N.D.P.S. Act is required to be carried out by a person who is absolutely impartial, unbiased and unmotivated, when P.W.4 received the reliable information, searched the vehicle and seized the contraband articles and lodged the first information report, in all fairness of things, he should not have investigated the matter without any exigencies of the situation. 10. Law is well settled that the provisions of sections 100 and 165 of the Code of Criminal Procedure, 1973 which are not inconsistent with the provisions of the N.D.P.S. Act are applicable for effecting search and seizure under the N.D.P.S. Act. 10. Law is well settled that the provisions of sections 100 and 165 of the Code of Criminal Procedure, 1973 which are not inconsistent with the provisions of the N.D.P.S. Act are applicable for effecting search and seizure under the N.D.P.S. Act. Section 165 Cr.P.C. deals with search by an officer in charge of a police station or by a police officer making an investigation into any offence which he is authorized to investigate. Sub-section (4) of section 165 of the Code states that the provisions of the Code as to search-warrants and the general provisions as to searches contained in section 100 of Cr.P.C. shall, so far as may be, apply to a search made under section 165 Cr.P.C. Sub-section (4) of section 100 of Cr.P.C. states that before making a search under Chapter-VII, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and the officer may issue an order in writing to such persons or any of them to be a witness to the search. Even though sub-section (4) of section 100 Cr.P.C. states that such provision is applicable to Chapter-VIII but in view of sub-section (4) of section 165 of Cr.P.C., the procedure has to be followed in all cases of search by either the officer in charge of the police station or a police officer making an investigation into any offence which he is authorised to investigate. If any subordinate officer is entrusted by the officer in charge to carry out such search by an order in writing, then such subordinate officer has also to follow the procedure laid down under section 100 Cr.P.C. Even though section 100 Cr.P.C. states about the search of a closed place but in view of definition of ‘place’ as per section 2 (p) of Cr.P.C., it includes a house, building, tent and vessel. The independent witnesses who have been examined in the case are P.W.1 and P.W.2, out of which P.W.1 was the weighman and they belonged to Mouza Pottangi which is a different village than the place where the seizure was effected. The independent witnesses who have been examined in the case are P.W.1 and P.W.2, out of which P.W.1 was the weighman and they belonged to Mouza Pottangi which is a different village than the place where the seizure was effected. P.W.2 has stated in his evidence that he had attended the Koraput Court as a prosecution witness in various types of cases and he also attended Pottangi police station on many occasions. He has also written the first information reports for the informants. Since P.W.2 is a stock witness of the prosecution, therefore, this Court has to be very cautious in accepting his evidence. A stock witness is a person who is at the back and call of the police. He obliges police with his tailored testimony. In case of Prem Chand (Paniwala) -Vrs.- Union of India reported in A.I.R. 1981 S.C. 613, the Hon’ble Supreme Court emphasized the need of the State to issue clear orders to the Police Department to free the processes of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stockwitnesses. In case of Babudas -Vrs.- State of M.P. reported in (2003 ) 9 Supreme Court Cases 86, it was held as follows:- “4....From the evidence of PW-17, we notice that undoubtedly, he is a stock witness who has been appearing as a witness for recovery on behalf of the prosecution even as far back as the year 1965, therefore, we will have to very cautious in accepting his evidence.” None of the persons of the locality from where the contraband articles were seized in the Bolero vehicle has been examined. The timing of search and seizure, non-availability of independent and respectable witnesses of the locality and noninclination of such persons even though available to become witnesses to the search and seizure are the factors to be taken note of while assessing the non-compliance of sections 100(4) and 165(4) of Cr.P.C. If after making reasonable efforts, the police officer is not able to get public witnesses to associate with the raid or arrest of the accused, the arrest and the recovery made would not be necessarily vitiated. In the case in hand, though the vehicle was detained at 5.00 a.m. on 04.02.2009 but after the arrival of the Executive Magistrate at 3.00 p.m. on 04.02.2009, the search and seizure was made. In the case in hand, though the vehicle was detained at 5.00 a.m. on 04.02.2009 but after the arrival of the Executive Magistrate at 3.00 p.m. on 04.02.2009, the search and seizure was made. P.W.2 has stated that he was sleeping in his house at 3 a.m. when Pottangi Thana babu called him to accompany him for detection of the case and accordingly, he went with him. According to P.W.4, the spot of detection i.e. Tangini Ghati was about 18 Kms. away from Pottangi police station and village Tangini was about 1 Km. away from the place of detection. There is absolutely no evidence that at the time of search and seizure, there was non-availability of independent and respectable witnesses of the locality or non-inclination of such persons even though available to become witnesses to the search and seizure rather P.W.2 has stated that besides him, two to four others were also there. P.W.4 has stated that since he had taken one independent witness from Pottangi along with him, he did not feel the necessity of procuring another independent witness from village Tangini or from hamlet Jodimathili which according to him was 2 Kms. away from the spot. Therefore, learned counsel for the appellants is right in his submission that there is violation of provision under section 100 (4) of Cr.P.C. in carrying a stock witness like P.W.2 from his house during the night for the search and seizure. 11. The next contention raised by the learned counsel for the appellants regarding the non-seizure of the original report of arrest and seizure under section 57 of the N.D.P.S. Act. P.W.4 has stated that on the very next day he has reported to his superior officer under section 57 of the N.D.P.S. Act but the report has not been seized. What was proved during trial as Ext.12 is the carbon copy of the report which was objected to by the defence. No witnesses from the office of the Superintendent of Police, Koraput have also been examined to state about receipt of such report under Ext.12 which was dispatched by P.W.4. What was proved during trial as Ext.12 is the carbon copy of the report which was objected to by the defence. No witnesses from the office of the Superintendent of Police, Koraput have also been examined to state about receipt of such report under Ext.12 which was dispatched by P.W.4. Therefore, when the original report has not been produced and no competent witness from S.P. office has been examined and no corresponding documents from the office of Superintendent of Police, Koraput has been proved relating to receipt of the full report under section 57 of the N.D.P.S. Act in their office, it is very difficult to accept that there is substantial compliance of such provision. In case of Gurbax Singh -Vrs.- State of Haryana reported in A.I.R. 2001 S.C. 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, I.O. 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 noncompliance 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. 12. The contraband ganja as well as the sample packets after seizure was brought to the police station and it is stated to have been kept in the Malkhana by P.W.4 before its production in Court. The evidence of P.W.4 is totally silent as to whether any entries were made in the Malkhana register before keeping the seized articles and sample packets in the Malkhana and also taking the same for production in Court. The Malkhana register was not produced during trial. The evidence of P.W.4 is totally silent as to whether any entries were made in the Malkhana register before keeping the seized articles and sample packets in the Malkhana and also taking the same for production in Court. The Malkhana register was not produced during trial. The copy of the Malkhana register showing the corresponding entries in such register relating to the keeping of the contraband ganja as well as sample packets and taking it out was also not proved. It was the duty of the prosecution to adduce cogent and clinching evidence regarding safe custody of the seized articles along with sample packets in the malkhana of Pottangi police station. Rule 119 of the Orissa Police Rules which deals with Malkhana register states, inter alia, that all the articles of which police take charge, shall be entered in detail, with a description of identifying marks on each article, in a register to be kept in P.M. form No. 18 in duplicate, and a receipt shall be obtained whenever any article or property of which the police take charge is made over to the owner or sent to the Court or disposed of in any other way and these receipt shall be numbered serially and filed, and the number of receipts shall be entered in column No.7. Therefore, it is clear that whenever any article is seized and kept in police malkhana, details thereof should be entered in the Malkhana register and while taking it out, the entry should also be made in such register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court. When the Malkhana register of Pottangi police station has not been proved in the case, it is difficult to believe that the seized articles along with the sample packets were in safe custody before its production in Court for being sent for chemical analysis. Though P.W.4 stated the brass seal was handed over to P.W.5 as per zimanama Ext.9 after the search and seizure and preparation of the seizure list was over but P.W.5 has stated in the cross-examination that he took time twice to produce the seal and he had returned the seal to the Inspector in–charge and then brought it back from him. The statement of P.W.5 raises doubt about the handing over of the brass seal by P.W.4 as per zimanama Ext.9 rather it presupposes that a zimanama was created without handing over the personal brass seal to P.W.5. Law is well settled that the brass seal used in sealing the contraband articles should be kept in the zima of a respectable person and it is required to be produced before the Court at the time of production of the seized articles and sample packets for verification by the Court. The order sheet dated 05.02.2009 of the learned Sessions Judge -cum- Special Judge, Koraput is totally silent regarding production of the brass seal in question and its verification when the seized articles were produced. Even though P.W.4 has mentioned in the F.I.R. that his personal seal impression was given in the seizure list but on verification of the seizure list (Ext.1), it appears that such averment is not correct. When the sample packets as well as bulk quantity of ganja were with P.W.4 who was also the incharge of Malkhana and he was also having the brass seal with him, the possibility of tampering cannot be ruled out. Learned counsel for the appellants placed reliance in case of Sk. Faiyaz -Vrs.- State of Orissa reported in (2010) 46 Orissa Criminal Reports 855 and Bata Krushna Sahu -Vrs.- State of Orissa reported in (2010) 45 Orissa Criminal Reports 606 wherein it has been held that the prosecution is required to prove the proper sealing of seized articles and complete elimination of tampering with such articles during its retention by the investigating agency. Burden of proof of entire path of journey of the articles from the point of seizure till its arrival before chemical examiner has to be proved by adducing cogent, reliable and unimpeachable evidence. 13. Burden of proof of entire path of journey of the articles from the point of seizure till its arrival before chemical examiner has to be proved by adducing cogent, reliable and unimpeachable evidence. 13. In view of the forgoing discussions, I am of the humble view that when there is non-compliance of mandatory provision of section 42 of the N.D.P.S. Act and non-production of the station diary entry, Malkhana register, dispatch register during trial, when the brass seal was not produced in Court at the time of production of the seized articles, respectable and independent persons of the locality where search was made have not been examined, when the compliance of section 57 of the N.D.P.S. Act is also a doubtful feature and moreover P.W.4 being the informant of the case has investigated the case and taken the assistance of stock witness like P.W.2, it cannot be said that the prosecution has successfully established the charge under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants beyond all reasonable doubt. Therefore, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed thereunder is not sustainable in the eye of law. Accordingly, the Criminal Appeal is allowed. The appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellants who are in jail custody shall be set at liberty forthwith if their detention is not required in any other case. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. Appeal allowed.