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2019 DIGILAW 450 (ORI)

Haren Mandal v. State Of Odisha

2019-07-11

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The appellant Haren Mandal faced trial in the Court of learned Additional Sessions Judge -cum- Special Judge, Nabarangpur in C.T. No. 86 of 2007 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 09.11.2007 he was found in unlawful possession and transportation of Ganja (cannabis) weighing 36 kg. in Majhiguda forest footway. The learned trial Court vide impugned judgment and order dated 17.02.2011 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.1,25,000/- (rupees one lakh twenty five though), in default, to undergo further rigorous imprisonment for period of three years. 2. The prosecution case, in short, is that on 09.11.2007 at about 4.00 p.m. while P.W.4 Dillip Kumar Gouda, S.I. of Excise, Umerkote was performing patrolling duty along with his staff near village Majhiguda under Umarkote police station, at that time, he received information through reliable sources that one man was illegally transporting contraband ganja on the forest footway of village Majhiguda. On receipt of such information, P.W.4 immediately took down the information in writing and sent it to his superior officer, i.e., Excise Superintendent, Nabarangpur vide Ext.3 and then proceeded to Majhiguda jungle. While P.W.4 and the other excise staff were concealing themselves in the jungle awaiting arrival of that man, they found the appellant was coming on that way carrying two gunny bags in a 'bahungi'. The appellant was stopped by the excise officials and P.W.4 gave his identity before him and also told him the reasons for obstructing him. At that time, P.W.1 Sankar Das was passing by that road and he was called to the place where the appellant was detained. Suspecting that the gunny bags were containing contraband ganja, P.W.4 expressed his intention to search the appellant as well as the gunny bags which he was carrying and gave the option of search to the appellant in presence of the Executive Magistrate. After disclosing his name, the appellant gave his option to be searched by an Executive Magistrate. On the basis of the written option (Ext.4) given by the appellant, P.W.4 deputed a constable to the Tahasildar, Umerkote with a written requisition (Ext.5) to come to the spot and to assist in the search. After disclosing his name, the appellant gave his option to be searched by an Executive Magistrate. On the basis of the written option (Ext.4) given by the appellant, P.W.4 deputed a constable to the Tahasildar, Umerkote with a written requisition (Ext.5) to come to the spot and to assist in the search. The Tahasildar (P.W.3) reached at the spot at 6.00 p.m. and he took the personal search of P.W.4 and other excise staff and in his presence, the gunny bags carried by the appellant were opened. P.W.4 tested the contents of the gunny bags by rubbing it in his own hand and he came to know that the articles found inside the gunny bags were nothing but ganja. The ganja was weighed which was found to be 36 kg. and each gunny bag was containing 18 kg. of ganja. P.W.4 collected 50 grams of ganja from each of the gunny bags towards sample and divided it into four packets and each of the sample packets were sealed properly with the personal brass seal of P.W.4, on which P.W.3 and other witnesses signed. The residual ganja in the gunny bags were also sealed in presence of the witnesses and the Executive Magistrate (P.W.3). P.W.4 prepared the seizure list (Ext.1) and a copy of the seizure list was handed over to the appellant, in token of receipt of which the appellant put his L.T.I. on the back of the seizure list. The brass seal of P.W.4 with which gunny bags and sample packets were sealed, was handed over to P.W.3 under zimanama (Ext.2). The appellant was arrested on 09.11.2007 and he was produced before the learned Special Judge, Nabarangpur on 10.11.2007 in the residential office, as it was a holiday. P.W.4 investigated the case and on 11.11.2007 he visited the spot, recorded the statements of witnesses. On 13.11.2007 he took the seized articles again to be produced before the learned Special Judge, Nabarangpur, but since the Malkhana Clerk did not agree to keep the articles in the Malkhana, P.W.4 again returned back to the headquarters and kept the articles in safe custody. On 17.11.2007, P.W.4 again took the seized articles to the Court of learned Special Judge and produced it and as per the orders of the Court, he deposited the residual ganja in the gunny bags in the Court Malkhana vide C.M.R no. On 17.11.2007, P.W.4 again took the seized articles to the Court of learned Special Judge and produced it and as per the orders of the Court, he deposited the residual ganja in the gunny bags in the Court Malkhana vide C.M.R no. 36 of 2007 and produced the sample packets before the learned S.D.J.M., Nabarangpur who sent it for chemical analysis. The Chemical Examiner after analysis, on the basis of description and identification tests performed opined that the two samples, i.e. A-1 and B-1, were Ganja (cannabis) as defined under section 2(iii)(b) of the N.D.P.S. Act. After completion of investigation, P.W.4 submitted the prosecution report against the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act. 3. The appellant was charged under section 20(b)(ii)(C) of the N.D.P.S. Act to which he pleaded not guilty and claimed to be tried. 4. During course of trial, the prosecution examined four witnesses. P.W.1 Sankar Das did not support the prosecution case for which he was declared hostile by the prosecution and cross-examined by the Public Prosecutor. P.W.2 Tripati Prasad Panda was the constable attached to Umerkote Excise Office and he accompanied P.W.4 in the patrolling duty. He stated about the recovery of contraband Ganja from the possession of the appellant in two gunny bags, collection of the samples by P.W.4, sealing of the sample packets after weighment, giving of the brass seal in the zima of P.W.3 as per zimanama (Ext.2). P.W.3 Pitambar Bhoi was the Tahasildar, Umerkote and he came to the spot on receipt of the requisition from P.W.4 and was present when the contraband ganja found in the two gunny bags was weighed, samples were prepared and sealed and he also took the zima of the brass seal with which the sample packets and the gunny bags were sealed. P.W.4 Dillip Kumar Gouda was the S.I. of Excise of Umerkote, who not only detected the appellant carrying contraband Ganja in Majhiguda jungle, but also prepared the seizure list after weighment of contraband ganja and sample collection and he also arrested the appellant and produced him in Court with the seized articles. He is also the Investigating Officer in the case. The prosecution exhibited seven documents. Ext.1/1 is the seizure list, Ext.2 is the zimanama, Ext.3 is the copy of information given to the Superintendent of Excise, Nabagarnagpur on 09.11.2007, Ext. He is also the Investigating Officer in the case. The prosecution exhibited seven documents. Ext.1/1 is the seizure list, Ext.2 is the zimanama, Ext.3 is the copy of information given to the Superintendent of Excise, Nabagarnagpur on 09.11.2007, Ext. 4 is the written option given by the appellant, Ext.5 is the copy of the requisition, Ext.6 is the copy of the letter of S.D.J.M., Nabarangpur regarding sending of exhibits for chemical examination and Ext.7 is the Chemical Examination report. The prosecution also proved the sample packets as M.O.I and M.O.II. 5. The defence plea of the appellant was one of denial and it was pleaded that nothing was seized from his possession and a false P.R. has been filed against him. 6. The learned trial Court after analysing the evidence on record came to hold that notwithstanding the hostile attitude shown by the independent witness (P.W.1), the evidence of P.W.2 and P.W.4 can be considered to be credible one. It is further held that the entire search, seizure and taking of sample having been effected in presence of the Executive Magistrate (P.W.3) and therefore, it can be safely deduced that the evidence of P.W.2 and P.W.4 are credible and beyond reproach and that P.W.3 can be considered to be a witness of sterling worth. It is further held that the brass seal having been handed over to the Executive Magistrate (P.W.3) at the spot in presence of the witnesses, it can be deduced that the sample packets sent to the Chemical Examiner have not been tampered with. The learned trial Court considered the contentions of the defence counsel regarding non-compliance of the provision under section 42 of the N.D.P.S. Act and came to hold that the search and seizure having been taken place in the public place, the strict compliance under section 42 is not required except under section 43 of the said Act. Considering the contention of the defence counsel regarding non-compliance of the provision under section 55 of the N.D.P.S. Act, the learned trial Court came to hold that P.W.4 being invested with the power of the officer in charge of the police station of his jurisdiction, he is entitled to keep the seized articles in his custody and therefore, the contention raised regarding non-compliance of provision under section 55 of the N.D.P.S. Act vitiating the trial was held to be misconceived in law. The learned trial Court further held that the excise officials being empowered by the State Government under sections 41 and 42 of the N.D.P.S. Act to effect search and seizure of the contraband articles and as per the notification issued by the Commissioner of Excise, Government of Odisha, they are vested with the power of the officer in charge of the police station for investigation of the offences under N.D.P.S. Act, it is not required on their part to submit the seized articles before the officer in charge of any police station and they can themselves keep the seized articles till the same is produced before the Special Court. The learned trial Court also considered the contentions raised by the learned defence counsel relating to the delay in production of the seized ganja as well as the sample packets before the Court and held that since the S.I. of Excise submitted a detailed report along with production of the appellant and the seized articles before the Special Judge within seventy two hours of arrest and seizure, it is the sufficient compliance of section 57 of the N.D.P.S. Act and since the Special Judge or the Magistrate is the immediate superior officer of the investigating officer and therefore, the record should not be submitted to the higher officer except to the Special Judge or the Magistrate. It is further held that no illegality has been committed by P.W.4 in conducting the investigation as the same is duly approved by the statutory provision and by the special notification issued by the State Government. Ultimately the learned trial Court came to hold that the prosecution has successfully proved the case against the appellant beyond all reasonable doubt that he was in exclusive possession of the contraband ganja and accordingly, found him guilty under section 20(b)(ii)(C) of the N.D.P.S. Act. 7. Mr. Jugal Kishore Panda, learned counsel appearing for the appellant challenging the impugned judgment and order of conviction contended that since P.W.4 conducted search and seizure and also arrested the appellant, he should not have investigated the case and submitted the prosecution report against the appellant inasmuch as a fair investigation, which is the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person. He relied upon the decision of the Hon'ble Supreme Court in the case of Mohan Lal Vrs. He relied upon the decision of the Hon'ble Supreme Court in the case of Mohan Lal Vrs. State of Punjab,2018 (72) OCR 196 (SC). It is further contended that there is non-compliance of sections 55 and 57 of the N.D.P.S. Act and even though the articles were seized and samples were taken on 10.11.2007 but those were not produced before the learned Special Judge, Nabarangpur when the appellant was produced and it was produced only on 17.11.2007, on which date the sample packets were dispatched for chemical analysis and the seized gunny bags containing the residual ganja were kept in the Court Malkhana. It is submitted that there is lack of evidence relating to the safe custody of the seized ganja as well as the sample packets before its production in Court and the explanation furnished by P.W.4 relating to delay in production is not at all acceptable. It is further contended that there are contradictions in the evidence of the official witnesses relating to the date of seizure of contraband ganja and even though it is the prosecution case that the brass seal of P.W.4, which was utilized in sealing the gunny bags as well as the sample packets was handed over to P.W.3 but the brass seal was not produced in Court for verification when the seized ganja in gunny bags and sample packets were produced and even in Court during trial. He relied upon the decision of this Court in the case of Ramakrushna Sahu Vrs. State of Orissa, (2018) 70 OCR 340 and contended that it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State, on the other hand, supported the impugned judgment and contended that merely because P.W.4, who conducted search and seizure, also submitted prosecution report after investigation, it cannot be said that the investigation is perfunctory and without any material relating to the malafideness in the conduct of P.W.4, the entire prosecution case cannot be disbelieved on that score. It is further contended that when P.W.4 was invested with the power of the officer in charge of the police station by virtue of the notification issued by the Commissioner of Excise, Government of Odisha and he has kept the contraband ganja in the gunny bags as well as the sample packets with him in a sealed condition in safe custody before its production in Court, the contention of the learned counsel for the appellant that there was non-compliance of section 55 of the N.D.P.S. Act cannot be accepted. It is further contended that P.W.4 in his evidence has explained as to why there was delay in production of the seized articles in the Special Court and when there is absence of any material regarding tampering with the seized articles, which was kept in sealed condition and the brass seal was handed over to P.W.3, the delay cannot be held to be fatal. It is further submitted that when the seized articles were produced on 17.11.2007, it was verified by the learned Special Judge, Nabarangpur and as per the direction of the learned Special Judge, the learned S.D.J.M., Nabarangpur also verified the same before sending the samples to the chemical examiner for analysis and no infirmities were noticed and therefore, the learned trial Court has rightly relied upon the evidence of the witnesses i.e. P.Ws.2, 3 and 4, which is corroborated by the documentary evidence i.e. Exts.1 to 7 and there is no illegality in the impugned judgment and therefore, the appeal should be dismissed. 8. Adverting to the contentions raised by the learned counsel for the respective parties, it appears from the evidence of P.W.4 that while he was performing patrolling duty with the excise staff near Majhiguda village, he received information through reliable source regarding carrying of contraband ganja by a person. He stated to have sent information in writing to his superior officer, i.e. Superintendent of Excise, Nabarangpur vide Ext.3. The evidence of P.W.4 is silent as to who took Ext.3 to the superior officer. Ext.3 as such does not indicate that it was received by the Superintendent of Excise, Nabarangpur. Neither any official seal nor any signature of the Superintendent of Excise is found on Ext.3 in token of its receipt. No witness has been examined to say that he produced Ext.3 before the Superintendent of Excise, Nabarangpur. Ext.3 as such does not indicate that it was received by the Superintendent of Excise, Nabarangpur. Neither any official seal nor any signature of the Superintendent of Excise is found on Ext.3 in token of its receipt. No witness has been examined to say that he produced Ext.3 before the Superintendent of Excise, Nabarangpur. No one from the office of Superintendent of Excise, Nabarangpur has been examined to say about the receipt of Ext.3 in that office. No register from the office of Superintendent of Excise, Nabarangpur has also been proved in this case to substantiate such aspect. The evidence of P.W.4 is not corroborated by any other witness. Therefore, except the bald statement of P.W.4 that he sent in writing about the reliable information received relating to carrying of contraband ganja by a person vide Ext.3 to his superior officer, there is nothing on record that in fact any such intimation has been given to the Superintendent of Excise, Nabarangpur and that it was received by him. If clinching oral and documentary evidence is not insisted for compliance of section 42(2) of the N.D.P.S Act then the very purpose of enactment of such a provision would be rendered meaningless. It is not the case of P.W.4 that he suddenly carried out the search of the appellant at a public place and detected ganja. It is a case where P.W.4 stated to have received reliable information beforehand while he was on patrolling duty with his staff and he has also come up with a case of compliance of section 42 of the N.D.P.S. Act. In the case of Karnail Singh Vrs. State of Haryana, (2009) 44 OCR 183 (SC), it is 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." Even though P.W.4 was on patrolling duty with his staff when he received the reliable information and according to him, he tried to comply the requirements of sections 42(1) and 42(2) of the N.D.P.S. Act and in that respect, the prosecution has proved Ext.3 but since the dispatch of Ext.3 to the superior officer i.e. Superintendent of Excise, Nabarangpur becomes a doubtful feature, I am of the humble view that for the noncompliance of section 42(2) of the N.D.P.S. Act, the prosecution case relating to fairness in the process of recovery becomes doubtful. 9. With regard to non-compliance of section 55 of the N.D.P.S. Act as contended by the learned counsel appearing for the appellant, it appears that even though as per the notification issued by the Commissioner of Excise, Government of Odisha dated 03.03.1998, all the officers of and above the rank of S.I. of Excise of the Excise Department of the State are invested with the power of the officer in-charge of police station for investigation of the offence under the N.D.P.S. Act and the Excise Officers from the rank of S.I. of Excise have been empowered with the power of officer in charge of the police station to investigate into the case but mere statement of P.W.4 that he kept the articles in safe custody in the headquarters is not sufficient without any clinching documentary evidence in that respect. P.W.4 has stated that on 10.11.2007 he produced the accused along with the seized articles before the learned Special Judge, Nabarangpur, but the order sheet of the learned Special Judge, Nabarangpur dated 10.11.2007 does not indicate anything relating to production of the seized articles before him on that day. It only reflects about the receipt of forwarding report along with the seizure list, memo of arrest, option query of the Investigating Officer, option of the accused, intimation letter of the I.O., zimanama and requisition letter when the appellant was produced before the Court. It only reflects about the receipt of forwarding report along with the seizure list, memo of arrest, option query of the Investigating Officer, option of the accused, intimation letter of the I.O., zimanama and requisition letter when the appellant was produced before the Court. Therefore, the statement of P.W.4 that the seized articles were also produced on 10.11.2007 cannot be accepted. Though P.W.4 has stated that on 13.11.2007 he again took the seized articles to be produced before the learned Special Judge, Nabarangpur and the Malkhana clerk did not agree to keep the same in the Malkhana, but there is absence of any documentary evidence in that respect. The Malkhana clerk has also not been examined. When there is no order of the Court on 13.11.2007 to show that the seized articles were produced and it was directed to be kept in Malkhana, the statement of P.W.4 is not believable. The prosecution evidence is totally silent as to why not only on 10.11.2007 but also prior to 17.11.2007 the seized contraband articles in gunny bags along with the sample packets were not produced before the learned Special Judge, Nabarangpur. When there is absence of any documentary evidence as well as oral evidence relating to the safe custody of the seized articles before its production in Court and the explanation furnished by P.W.4 is not acceptable and it runs contrary to the order-sheet of the case record, I am of the humble view that the delay in production of the seized articles is fatal to the prosecution case. It is the duty of the prosecution to adduce cogent, reliable and unimpeachable evidence to prove that the contraband articles after its seizure were not only properly sealed and kept in safe custody before its production in Court and that there was no chance of tampering with the same, but also the articles which were produced in the Court, were the very articles which were seized in the case. The entire path right from the point of the seizure of contraband articles till its production before the Court for its dispatch to the chemical examiner has to be covered by the prosecution by adducing clinching evidence as the punishment prescribed for the offences under the N.D.P.S. Act are very stringent in nature. 10. The entire path right from the point of the seizure of contraband articles till its production before the Court for its dispatch to the chemical examiner has to be covered by the prosecution by adducing clinching evidence as the punishment prescribed for the offences under the N.D.P.S. Act are very stringent in nature. 10. The brass seal which was handed over to P.W.3 was not produced in Court when the seized ganja in gunny bags and sample packets were produced for verification. The order-sheet dated 17.11.2007 clearly reveals that only the sample of the seized property vide Exts. A-1, A-2, B-1 and B-2 were produced and a prayer was made by the S.I. of Excise, Umerkote to send it to the Chemical Examiner and accordingly, the learned Special Judge sent it to the learned S.D.J.M., Nabarangpur to open a part file and to send the samples to the Chemical Examiner and there was a further direction that the other seized materials are to be deposited in the Court Malkhana. P.W.3 has also not stated that he produced the brass seal which he had taken in zima at the time of production of the seized articles in Court. Even the brass seal was not produced during trial of the case. The seized gunny bags containing ganja which were kept in Court Malkhana were also not produced during trial. In the case of Gorakh Nath Prasad Vrs. State of Bihar, (2018) 69 OCR 409 (SC), it is held as follows:- "8. The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being Ganja. No explanation has also been furnished by the prosecution for non-production of the Ganja as an exhibit in the trial. The benefit of doubt will, therefore, have to be given to the Appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra and Anr. Vrs. State of M.P., (2004) 10 SCC 562 , and reiterated in Ashok alias Dangra Jaiswal Vrs. State of Madhya Pradesh, (2011) 5 SCC 123 , as follows: "12. The benefit of doubt will, therefore, have to be given to the Appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra and Anr. Vrs. State of M.P., (2004) 10 SCC 562 , and reiterated in Ashok alias Dangra Jaiswal Vrs. State of Madhya Pradesh, (2011) 5 SCC 123 , 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. 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. 13. It may be noted here that in Jitendera Vrs. State of M.P., (2004) 10 SCC 562 , on similar facts this Court held that the material placed on record by the prosecution did not bring home the charge against the Accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra (supra), the Court observed and held as under: (SCC pp. 564-65, paras 5-6) "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 (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 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 them 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..... 6......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. 6......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 NDPS 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....." 11. The evidence of P.W.4 is totally silent regarding compliance of section 57 of the N.D.P.S. Act which states that within forty eight hours next after the arrest or seizure under the Act, the person making such arrest or seizure has to make a full report of all the particulars of such arrest or seizure to his immediate official superior. In case of Sukhdev Singh Vrs. State of Haryana, (2013) 2 SCC 212 , it is held that once the contraband is recovered, then there are other provisions like section 57 of the N.D.P.S. Act which the empowered officer is mandatorily required to comply with. The observation of the learned trial Court that the S.I. of Excise (P.W.4) submitted a detailed report along with production of the appellant and the seized articles before the Special Judge within seventy two hours of arrest and seizure and that it is the sufficient compliance of section 57 of the N.D.P.S. Act and the further observation that the Special Judge or the Magistrate are the immediate superior officer of the investigating officer and therefore, the record should not be submitted to the higher officer except the Special Judge or the Magistrate, is totally misconceived. The seized articles were never produced before the learned Special Judge within seventy two hours of arrest and seizure. It was produced after seven days. Full report of all the particulars of arrest or seizure has to be made by the person making arrest or seizure to his immediate official superior. Submission of such report to the Special Judge or the Magistrate without submitting the same to the immediate official superior is not contemplated under section 57 of the N.D.P.S. Act. As held by the Hon'ble Supreme Court in case of State of Punjab Vrs. Submission of such report to the Special Judge or the Magistrate without submitting the same to the immediate official superior is not contemplated under section 57 of the N.D.P.S. Act. As held by the Hon'ble Supreme Court in case of State of Punjab Vrs. Balbir Singh & others, (1994) 7 OCR 283 (SC) that if there is no strict compliance of section 57 of the N.D.P.S. Act, that by itself cannot render the acts done by the officers null and void and at the most it may affect the probative value of the evidence regarding arrest or search and in some cases it may invalided such arrest or search but such violation by itself does not invalided the trial or the conviction if otherwise there is sufficient material. The officers, however, cannot totally ignore these provisions and if there is no explanation for non-compliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the Courts have to appreciate the evidence and the merits of the case bearing these aspects in view. 12. Even though the date of seizure has been stated as 07.11.2007 by the Executive Magistrate (P.W.3) while P.W.2 and P.W. 4 stated it to be 09.11.2007, but in view of the materials available on record, it can be said that the occurrence took place on 09.11.2007 and the date, which has been stated by P.W.3 is a mistake. 13. In view of the forgoing discussions, since there is absence of cogent material relating to keeping of the seized articles along with the sample packets in safe custody till its production in the Court, the delay in production of the seized articles along with the sample packets in Court has not been explained by the prosecution with satisfactory evidence, there is non-compliance of the provision under sections 42 (2) and 57 of the N.D.P.S. Act and moreover P.W.4 being the officer, who after conducting search and seizure has also investigated the matter and submitted prosecution report which creates doubt in the fairness in the process of recovery and investigation, I am of the humble view that it would be risky to uphold the impugned judgment and the order of conviction and sentence passed against the appellant. Accordingly, the impugned judgment and order of conviction of the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed thereunder is hereby set aside. The Criminal Appeal is allowed. The appellant is acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellant, who is in jail custody, shall be set at liberty 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.