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2018 DIGILAW 799 (ORI)

Biswanath Patra v. State of Orissa

2018-11-15

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - The appellant Biswanath Patra faced trial in the Court of the learned Addl. Sessions Judge -cum- Special Judge, Malkangiri in Criminal Trial No. 80 of 2003 for offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) and he was found guilty under Section 20(b)(ii) of the N.D.P.S. Act and sentenced to undergo R.I. ten years and to pay a fine of rupees one lakh, in default, to undergo R.I. for a further period of two years vide impugned judgment and order dated 17.01.2007. 2. The prosecution case, as per the first information report dated 04.10.2003 lodged by one Sunil Arun Kumar Nayak (P.W.13), S.I. of Police, Malkangiri Police Station is that on 04.10.2003 at about 10.40 a.m. he received credible telephonic information that an old man was moving in a SBMS bus bearing registration No.OR-10B-5227 sitting on seat no. 35 from Kalimela towards Malkangiri and he was carrying one plastic handbag containing ganja and the bus was proceeding from MV- 79 towards Jeypore. P.W.13 entered the information into writing in a P.S. station diary vide SDE No. 62 dated 04.10.2003 at 10.40 a.m. and intimated the fact by sending the abstract of the station diary to the C.I./S.P., Malkangiri through constable No. HC/200 C. Bishoi by making diary entry. Since there was no time to obtain search warrant and there was every possibility of decamping of the suspect from the bus, P.W.13 along with other police officials proceeded to the spot and they arrived at 11 a.m. and on arrival at the spot in question, when the bus arrived, he stopped the bus and told the driver to keep the bus on the left side of the road. Then P.W.13 along with his staff entered into the bus and found one person was sitting in seat no. 35 and was holding one plastic bag keeping it on his thigh and pungent smell of ganja was coming from the hand bag. On being confronted, the old man claimed to be the owner of the bag and further stated that it was containing ganja and he procured the same from the jungle area of Kalimela police station from one unknown person and that he was taking the same to Ganjam district to sell it for higher profit and he disclosed his name as Biswanath Patra (appellant). After detention of the appellant, P.W.13 called two independent witnesses of the locality and offered option in writing to the appellant whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The appellant offered in writing that he intended to be searched in presence of a Magistrate. P.W.13 sent requisition to S.D.M., Malkangiri through constable with a request to depute an Executive Magistrate to remain present at the time of search and seizure. At about 1.00 p.m., Tahasildar -cum- Executive Magistrate, Malkangiri Sri Radha Ballav Pattnaik (P.W.12) arrived at the spot and P.W.13 narrated about the events and the identity of the Executive Magistrate was conveyed to the witnesses as well as to the appellant and the appellant was asked to get down from the bus with his hand bag containing ganja. A constable was sent to call a weighman who came to the spot and in the presence of the Executive Magistrate as well as other persons, personal search of the appellant was taken but nothing incriminating was found except a cash of Rs.160/- and one bus ticket and when the hand bag was opened, it was found to be containing fruiting and flowering tops of contraband ganja. The appellant failed to produce any licence, authority or permission to possess such ganja. The ganja was weighed by the weighman Sanjib Kumar Ray (P.W.6), which came to 2 K.G. and an extract of 24 grams of sample in duplicate was taken in two polythene covers which were again kept in two paper envelopes and were marked as ‘A1’ and ‘A2’ and the paper slips containing the signatures of the appellant, Executive Magistrate, weighman, witnesses and P.W.13 with seals were put inside each of the sample packets as well as bulk quantities. The seizure list of ganja of bulk quantity with the plastic hand bag and sample packets drawn was prepared and copy of the seizure list was supplied to the appellant. A separate seizure list was prepared for cash of Rs.160/- and the bus ticket and the personal seal of P.W.13 was left in the zima of the weighman Sanjib Kumar Ray (P.W.6) by executing proper zimanama. P.W.13 arrested the appellant after explaining the grounds of arrest, prepared the memo of arrest and drew up the plain paper F.I.R. at the spot and took up investigation of the case. P.W.13 arrested the appellant after explaining the grounds of arrest, prepared the memo of arrest and drew up the plain paper F.I.R. at the spot and took up investigation of the case. The appellant was forwarded to Court and the samples were sent to R.F.S.L., Berhampur for examination. P.W.13 obtained chemical examination report, which indicated that the sample contained flowering and fruiting tops of the cannabis plant, commonly known as ‘ganja’. Subsequently, the charge of investigation was taken over by the Inspector Narayan Mohanty who submitted charge sheet against the appellant. 3. The appellant was charged under Section 20(b)(i) of the N.D.P.S. Act for unlawful possession of 2 K.G. of contraband ganja. The appellant refuted the charge, pleaded not guilty and claimed to be tried. 4. During course of trial, in order to prove its case, the prosecution examined thirteen witnesses. P.W.1 Muna Das, P.W.2 Sukaranjan Choudhury, P.W.6 Sanjib Kumar Ray and P.W.9 Samir Majumdar did not support the prosecution case for which they were declared hostile. P.W.3 Arun Pradhan and P.W.4 Gananath Thanapathi are the witnesses to the seizure of some letters from the office of S.P., Malkangiri under seizure list Ext.2. P.W.5 Jitendra Kumar Pradhan was the constable attached to Malkangiri police station who accompanied the informant to the spot which is R.M.C. check gate and he stated about the presence of the appellant in the SBMS bus and search and seizure of ganja from the possession of the appellant in presence of the Executive Magistrate. P.W.7 Harish Chandra Hantal was the constable attached to Malkangiri police station who on the basis of command certificate carried sample ganja packets to R.F.S.L., Berhampur from the Court of learned S.D.J.M., Malkangiri. P.W.8 Asit Barman Biswal stated about the seizure of two letters by the I.O. on his production from the S.R. Section of D.P.O., Malkangiri under seizure list Ext.2. P.W.10 Mangala Khara stated about the seizure of ganja in a bag from the possession of the appellant as per seizure list Ext.4 in presence of Tahasildar, Malkangiri. P.W.11 N. Sankar Rao was the conductor of SBMS bus and he stated about the seizure of a bag containing ganja from the possession of the appellant as per seizure list Ext.4. P.W.10 Mangala Khara stated about the seizure of ganja in a bag from the possession of the appellant as per seizure list Ext.4 in presence of Tahasildar, Malkangiri. P.W.11 N. Sankar Rao was the conductor of SBMS bus and he stated about the seizure of a bag containing ganja from the possession of the appellant as per seizure list Ext.4. P.W.12 Radhaballava Patnaik was the Tahasildar -cum- Executive Magistrate, Malkangiri who on receipt of requisition from OIC, Malkangiri police station came to the spot and he stated that in his presence, the search and seizure took place and from the possession of the appellant contraband ganja of 2 K.G. was found. He is a witness to the seizure list Ext.4 and Ext.1/1. P.W.13 Sunil Arun Kumar Naik was the S.I. of police attached to Malkangiri police station who is the informant as well as one of the Investigating Officer of the case. The prosecution exhibited seven documents. Ext.1/1, 2, 3 and 4 are the seizure lists, Ext.5 is the sample cover, Ext.6 is the F.I.R. and Ext.7 is the chemical examination report. The prosecution proved the sample ganja as M.O.I. 5. The defence plea of the appellant is one of denial. No witness was examined on behalf of the defence. 6. Though Mr. Sasanka Sekhar Satapathy, Advocate was engaged by the High Court Legal Services Committee to argue the appeal for the appellant but he was not found present when the matter was called and therefore, Mr. Nilamadhaba Praharaj, learned counsel who was present in Court was engaged as Amicus Curiae to assist the Court. He was supplied with paper book and given time to prepare the case. After going through the case records, he placed the impugned judgment and evidence on record. Mr. Praharaj, learned counsel challenging the impugned judgment and order of conviction contended that the mandatory provision under Section 42 of the N.D.P.S. Act has not been complied with and on this sole ground, the appellant is entitled to be acquitted. He argued that the learned trial Court has not given any finding regarding the compliance of any of the mandatory provisions of the N.D.P.S. Act and in a mechanical manner found the appellant guilty under Section 20(b)(ii) even though charge was framed under a wrong provision like 20(b)(i) of the N.D.P.S. Act. He argued that the learned trial Court has not given any finding regarding the compliance of any of the mandatory provisions of the N.D.P.S. Act and in a mechanical manner found the appellant guilty under Section 20(b)(ii) even though charge was framed under a wrong provision like 20(b)(i) of the N.D.P.S. Act. He further argued that the bulk quantity of ganja kept in separate packet at the time of seizure was not produced at the time of trial for marking the same as exhibit and the evidence is silent as to where the specimen seal was kept and it was not produced in Court at any time. Mr. Anupam Rath, learned Addl. Standing Counsel on the other hand supported the impugned judgment and contended that in the first information report, the compliance of Section 42 of the N.D.P.S. Act is apparent and moreover it cannot be said that there is any serious prejudice caused to the appellant merely because he was charged under Section 20(b)(i) of the N.D.P.S. Act instead of Section 20(b)(ii) of the N.D.P.S. Act. 7. Adverting to the contentions raised by the learned counsels for the respective parties and going through the evidence on record, I find there are several infirmities in the prosecution case. The learned trial Court has framed charge under Section 20(b)(i) of the N.D.P.S. Act for unlawful possession of 2 K.G. of Ganja. Section 20(b)(i) prescribes punishment for contravention relating to clause (a) of that Section which deals with cultivation of cannabis plant. Therefore, the learned trial Court in the factual scenario has erroneously framed charge under Section 20(b)(i) instead of Section 20(b)(ii) of the N.D.P.S. Act. This point was not raised during trial. However, it is to be seen whether in view of Section 464 of Cr.P.C., there is any failure of justice due to error in framing charge or any prejudice has been caused to the appellant due to such error. I find that in the contents of the charge, it is clearly mentioned on 04.10.2013 at about 11 a.m. near R.M.C. check gate, Malkangiri, the appellant was found in unlawful possession of 2 K.G. of contraband ganja. There is no dispute that framing of charge is not an empty formality. The object behind framing of charge is to make the accused aware of the nature and extent of the accusation against him. There is no dispute that framing of charge is not an empty formality. The object behind framing of charge is to make the accused aware of the nature and extent of the accusation against him. The learned trial Court should have been careful enough to mention the charge correctly. However, after going through the contents of the charge, I am of the humble view that no prejudice has been caused to the appellant on account of framing of charge under Section 20(b)(i) instead of Section 20(b)(ii) of the N.D.P.S. Act or any failure of justice has occasioned thereby inasmuch as the appellant was made aware of the nature and extent of the accusation against him. 8. Under Section 42(1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to subSection (1) of Section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search during that period would afford opportunity for the concealment of evidence or facility for the escape of an offender. Section 42 (2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours. 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 an information, should reduce the same to writing and also record reasons for the belief 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. In case of State of Punjab -Vrs.- Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, it is held as follows:- “10. The proviso to sub-Section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-Section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-Section (1), shall forthwith send a copy of his belief under the proviso to sub-Section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” In the case of State of West Bengal -Vrs.- Babu Chakraborthy reported in (2004) 12 Supreme Court Cases 201, it is hold that great significance has been attached to the mandatory nature of the provisions, keeping in view the stringent punishment prescribed in the Act. Great importance has been attached to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. The failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. In the case of Dilip and another -Vrs.- State of M.P reported in (2007) 36 Orissa Criminal Reports (SC) 170, it is held that the effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case. 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 Sections 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.” In the case of Rajender Singh -Vrs.- State of Haryana reported in (2011) 50 Orissa Criminal Reports (SC) 217, it is held that the total non-compliance with the provisions sub-Section (1) and (2) of Section 42 is impermissible and it vitiates the conviction. In view of the settled position of law, now it is to be seen whether the contentions raised by the learned counsel for the appellant that there is non-compliance of mandatory provision under Section 42 of the N.D.P.S. Act is sustainable or not. The present is not a case where P.W.13 suddenly carried out search at a public place. P.W.13 had the earlier reliable information while he was at the police station and he himself has come up with a case of compliance of Section 42 of the N.D.P.S. Act in the first information report. In the first information report (Ext.6), P.W.13 has mentioned as follows:- “...... On 04.10.2003 at 10.40 a.m., I received credible telephonic information that one old man is going in SBMS bus bearing Regd. No.OR 10B 5227 sitting on seat no.35 from Kalimela towards Malkangiri and he has carried one plastic hand bag containing ganja. The said bus is going from MV 79 to Jeypore. I entered the information in the P.S. station diary vide SDE No.62 dated 04.10.2003 at 10.40 a.m. and intimated the fact by sending the abstract of the station diary to the C.I./S.P., Malkangiri vide D.R. No.1711(2)/P.S. dt. 04.10.2003 (T) HC/200 G. Bishoi. There is no time to obtain search warrant and there is every possibility of decamping of suspect from the bus.” In his evidence, P.W.13 simply stated that on 04.10.2003 he received reliable information that ganja was being transported in a bus and accordingly, he along with his staff proceeded to R.M.C. gate, Malkangiri. 04.10.2003 (T) HC/200 G. Bishoi. There is no time to obtain search warrant and there is every possibility of decamping of suspect from the bus.” In his evidence, P.W.13 simply stated that on 04.10.2003 he received reliable information that ganja was being transported in a bus and accordingly, he along with his staff proceeded to R.M.C. gate, Malkangiri. Neither has he stated about entering the information in the station diary or intimating the fact by sending the abstract of the station diary to any superior officer by making diary entry through any constable. The relevant station diary has not been proved during trial nor was the abstract of the same exhibited. The constable who stated to have carried the abstract to the C.I./S.P., Malkangiri has not been examined. No officer from the office of C.I./S.P., Malkangiri has been examined to depose in that regard. Therefore, even though in the F.I.R., it is stated about the compliance of Section 42 of the N.D.P.S. Act but since the F.I.R. is not a substantive piece of evidence and during trial, the evidence adduced by the prosecution is totally silent in that respect and no corresponding document has been proved to substantiate such compliance, it is difficult to accept the contention raised by the learned counsel for the State. When the search was conducted after recording reliable information in the police station under Section 42(1) as per the F.I.R., therefore, even though the seizure was made in a public place during day time, in my humble view, compliance of the provisions of Section 42(2) of the N.D.P.S. Act was necessary. In view of the aforesaid discussions, it is apparent that there is non-compliance of the provisions under Section 42 of the N.D.P.S. Act. Law is well settled that total non-compliance with the provisions under sub-Sections (1) and (2) of Section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. 9. Law is well settled that total non-compliance with the provisions under sub-Sections (1) and (2) of Section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. 9. Coming to the contention raised by the learned counsel for the appellant that the bulk quantity of ganja kept in separate packet at the time of seizure was not produced at the time of trial for marking the same as exhibit, it is found that though in the first information report, it is mentioned that the bulk quantity was covered with white cloth stitched separately sealed with wax by heat process by using personal seal of the Executive Magistrate and the informant but the evidence of the informant (P.W.13) is totally silent about the bulk quantity of ganja. Where such bulk quantity was kept after seizure and why it was not produced during trial is shrouded in mystery and no explanation has been offered by the prosecution. If it was kept in Court malkhana, there was no difficulty in producing the same. In case of Noor Aga -Vrs.- State of Punjab reported in JT 2008 (7) SC 409, the Hon’ble Supreme Court held that non-production of primary evidence-the contraband material, by the prosecution before the trial Court has resulted in drawing negative inference against the prosecution and this dents the credibility of the case of prosecution. The best evidence therefore would have been the seized contraband material before the Court which ought to have been produced during the trial and also the prosecution has not tendered any explanation with respect to the failure to produce the evidence. The oral evidence would not discharge the heavy burden on the prosecution particularly where the offence is punishable with stringent sentence as under the N.D.P.S. Act. In case of Ashok @ Dangra Jaiswal -Vrs.- State of M.P. reported in (2011) 49 Orissa Criminal Reports (SC) 225, the Hon’ble Supreme Court held as follows: “12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial Court as a material exhibit and once again there is no explanation for its non-production. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial Court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the Appellant or the other accused.” In case of Jitendra -Vrs.- State of M.P. reported in (2003) 26 Orissa Criminal Reports (SC) 783, the Hon’ble Supreme Court held as follows: “5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (P.W.7), Angad Singh (P.W.8) and Sub- Inspector D.J. Rai (P.W.6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial Court, so as to connect it with the samples sent to the forensic science laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the forensic science laboratory were taken from the drugs seized from the possession of the accused. Although, the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the Court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the chemical examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, ‘non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced’. The High Court observed, ‘non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced’. The High Court relied on Section 465 Code of Criminal Procedure, 1973 to hold that nonproduction of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the N.D.P.S. Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the nonexamination of the investigating officer and nonproduction of the seized drugs, the conviction under the N.D.P.S. Act can still be sustained, is far-fetched.” In case of Vijay Jain -Vrs.- State of M.P. reported in (2013) 14 Supreme Court Cases 527, the Hon’ble Supreme Court held as follows: “12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (P.W.2 and P.W.3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial Court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable.” In view of the ratio laid down by the Hon’ble Supreme Court in the aforesaid decisions, when neither the packet containing bulk quantity of ganja was produced during trial nor any explanation has been offered by the prosecution for such non-production, it affects the credibility of the prosecution case. Mere production of the sample ganja packet which has been marked as M.O.I is not sufficient. It cannot be lost sight of the fact that the prosecution claims the quantity of ganja seized from the possession of the appellant to be 2 K.G. which is obviously lesser than commercial quantity but greater than small quantity and punishable under Section 20(b)(ii)(B) of the N.D.P.S. Act. When the contravention relates to ‘small quantity’ as has been defined under Section 2(xxiia) of the N.D.P.S. Act, the punishment is lesser than what has been prescribed for the offence under Section 20(b)(ii)(B) of the N.D.P.S. Act. Similarly for ‘commercial quantity’, the punishment is more stringent. Therefore, it is the duty of the prosecution to adduce cogent evidence relating to the actual quantity of ganja seized from the possession of the accused which is to be by way of oral, documentary evidence and also by actual production of the contraband ganja in Court and marking it as material object. 10. The last contention which was raised by the learned counsel for the appellant is that the prosecution evidence is silent as to where the personal seal was kept and it was not produced in Court at any time. P.W.13 in the first information report has stated that his personal seal was given in the zima of weighman Sanjib Kumar Roy (P.W.6) by executing proper zimanama. P.W.6 has not supported the prosecution case. The evidence of P.W.13 is completely silent as to whom his personal seal was handed over. P.W.13 in the first information report has stated that his personal seal was given in the zima of weighman Sanjib Kumar Roy (P.W.6) by executing proper zimanama. P.W.6 has not supported the prosecution case. The evidence of P.W.13 is completely silent as to whom his personal seal was handed over. The zimanama of the personal seal has not been proved during trial. The order sheet of the Court indicates that the personal brass seal was not produced in Court when the appellant and seized articles were produced in Court. Handing over the brass seal to an independent, reliable and respectable person and asking him to produce it before the Court at the time of production of the seized articles in Court for verification are not the empty formalities or rituals but is a necessity to eliminate the chance of tampering with the articles. 11. In view of the foregoing discussions, the impugned judgment and order of conviction of the appellant under Section 20(b)(ii) of the N.D.P.S. Act is not sustainable in the eye of law and the same is hereby set aside and the appellant is acquitted of the charge. In the result, JCRLA is allowed. The appellant shall be released from custody forthwith if his 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. Before parting with the case, I would like to put on record my appreciation to Mr. Nilamadhaba Praharaj, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.5,000/- (rupees five thousand only). JCRLA allowed.