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2019 DIGILAW 485 (ORI)

Mayadhar Kabi v. State of Odisha

2019-07-25

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. 1. The appellant Mayadhar Kabi faced trial in the Court of learned Additional Sessions Judge, Balasore in Special Case No. 13/36 of 2010 for offence punishable under section 20(b)(n)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here after N.D.P.S. Act') on the accusation that on 05.05.2010 at about 8 a.m., he was found in unlawful possession of Ganja (cannabis) weighing 246 kg. in six plastic jerry bags in village Rampur (Sasanasahi). The learned trial Court vide impugned judgment and order dated 13.03.2012 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for period of one year. 2. The prosecution case, in short, is that on 05.05.2010 while P.W. 5 Amarendra Kumar Jena, Inspector of Excise, E.I. and E.B., Unit-II, Cuttack was performing patrolling duty along with his staff at Rampur chhak on Khaira Agarpada road during the evening hours, he got reliable information regarding possession of huge quantity of ganja in the house of the appellant and accordingly, after recording the statement of the informer, he sent a copy of the information to the Deputy Commissioner of Excise through Sarat Chandra Das, Excise Constable who was present at the spot and he also intimated this fact over phone and proceeded to the spot without requisition of the Executive Magistrate fearing concealment or whisking away of the contraband articles and after ascertaining the house of the appellant from villagers, he conducted search of the house of the appellant in presence of witnesses after observing necessary formalities of search and recovered six plastic jerry bags containing ganja which were found to be 246 kg. in toto. He seized the jerry bags and prepared seizure list and sealed the bags with proper seal taking signatures of the appellant and the witnesses. He affixed the personal brass seal on each of the bag and the brass seal was handed over in the zima of Patitapaban Kar (P.W. 4). The appellant was arrested and he was produced in the Court of Special Judge, Balasore with documents. On the direction of learned Special Judge, the learned S.D.J.M., Balasore collected samples from each bag and sent it to the Chemical Examiner who on examination found it to be ganja. The appellant was arrested and he was produced in the Court of Special Judge, Balasore with documents. On the direction of learned Special Judge, the learned S.D.J.M., Balasore collected samples from each bag and sent it to the Chemical Examiner who on examination found it to be ganja. After receipt of Chemical Examination Report and on completion of investigation, P.W. 5 submitted the prosecution report. 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 five witnesses. P.W. 1 Hrusikesh Hota was the A.S.I., of Excise attached to E.I. & E.B., Cuttack who stated about seizure of six bags containing ganja from the house of the appellant under seizure list (Ext. 2). P.W. 2 Narayan Ch. Behera was the R.I. at Bartana Circle under Khaira Tahsil and on the requisition of Excise Inspector to the Tahsildar, Khaira, he was deputed to the spot and he prepared the sketch map of the spot room on 19.06.2010. He disclosed that the house in question was owned by Kanhu Kabi, son of Nidhi Kabi of village Rampur. After death of Kanhu Kabi, his two sons Mayadhar Kabi (appellant) and Gayadhar Kabi possessed the house. He further stated that the appellant was residing in the spot house at the relevant point of time. Ext. 3 is the report prepared by P.W. 2 and Ext. 4 is the spot map. P.W. 3 Krushna Ch. Pati stated about the search of the house of the appellant conducted on 05.05.2010 but he did not support the prosecution case for which he was declared hostile. P.W. 4 Patitapabana Kar stated to have put his signature at Rampur chhak on some documents. P.W. 5 Amarendra Kumar Jena was the Inspector of Excise, E.I. & E.B., Cuttack who not only conducted search and seizure but also the Investigating Officer of the case. The prosecution exhibited twenty three documents. Ext. 1 is the written information, Ext. 2 is the seizure list, Ext 3 is the report of the R.I., Ext. 4 is the sketch map. Ext. 5/2 is the option letter of the appellant, Ext. 6/2 is the spot map, Ext. 7 is the detailed report, Ext. 8 is the statement 'of the appellant, Ext. 9 is the statement of the witness Krushna Ch. Pati, Ext. 2 is the seizure list, Ext 3 is the report of the R.I., Ext. 4 is the sketch map. Ext. 5/2 is the option letter of the appellant, Ext. 6/2 is the spot map, Ext. 7 is the detailed report, Ext. 8 is the statement 'of the appellant, Ext. 9 is the statement of the witness Krushna Ch. Pati, Ext. 10 is the copy of the requisition issued by the Tahsildar, Ext. 11 is the command certificate, Ext. 12 is the acknowledgment receipt of sample, Ext. 13 is the chemical examination report, Ext. 14 is the paper showing handing over of brass seal, Ext. 15 is the copy of the confidential report, Ext. 16 is the inventory list, Ext. 17 is the rough weighment, Ext. 18 is the Panchanama, Ext. 19 is the ground of belief, Ext. 20 is the zimanama of brass seal, Ext. 21 is the seized khatian, Ext. 22 is the pan card of the appellant, Ext. 23 is the paper showing special training undergone by P.W. 5. The prosecution also proved the bags containing bulk quantity of ganja as M.O.I. to M.O. VI and the bag containing the broken seal having the seal of S.D.J.M., Balasore as M.O. VII. 5. The defence plea of the appellant was one of complete denial to the prosecution case. 6. The learned trial Court after analyzing the evidence on record came to hold that the challenge of the defence that there was non-compliance of provision under section 42 of the N.D.P.S. Act cannot be accepted/believed, in view of the fact that sample was collected at the time of seizure and produced before the proper Court. It is further held that there was proper compliance of section 42 of the N.D.P.S. Act and the search and seizure were properly conducted in presence of the witnesses i.e. P.Ws. 1 and 5 who were cross-examined at length but they have well stood to the test of cross-examination. Learned trial Court further held that the identity of the articles seized from the appellant was well established by the prosecution and the contraband ganja was seized from the house of the appellant which stands recorded in the name of his deceased father and there is no dispute about the same. Learned trial Court further held that the identity of the articles seized from the appellant was well established by the prosecution and the contraband ganja was seized from the house of the appellant which stands recorded in the name of his deceased father and there is no dispute about the same. The ownership of the land being in possession of the appellant having been well proved and established, the said property being shared by the brother of the appellant cannot absolve the appellant of such a serious charge nor can the presence of any other member would dilute the allegation against the appellant in any manner. It was further held that from the evidence on record including the report of the chemical examiner, it is clear that the appellant knowingly and willfully was in possession of the contraband ganja amounting to 246 kg. for use in commercial transaction. No animosity or ill feeling is proved by the defence with the excise sleuths who conducted search and seizure and accordingly, the appellant was found guilty under section 20(b)(ii)(C) of the N.D.P.S. Act. 7. Mr. Basanta Kumar Das, learned counsel appearing for the appellant while challenging the impugned judgment and order of conviction submitted that P.W. 5, the Inspector of Excise, E.I. and E.B., Cuttack on receipt of the reliable information not only conducted search and seizure but also carried out the investigation and on completion of investigation, he submitted the prosecution report against the appellant. Relying upon the ratio laid decision by the Hon'ble Supreme Court in the case of 2018 (II) OLR (SC) 485 Mohan Lal Vs. State of Punjab reported in (2018) 72 Orissa Criminal Reports (SC) 196, he argued that the informant and the investigator must not be the same person, as in that case there is possibility of bias on the part of the investigator. Learned counsel further highlighted that there is noncompliance of provision under section 42 of the N.D.P.S. Act and the reliable information and the grounds of belief which were taken down in writing as per Ext. 15, though stated to have been sent to the immediate official superior but there is no clinching material in that respect and he placed reliance in the case of Sumit Kumar Behera and another Vs. State of Odisha reported in 2019 (II) Orissa Law Reviews 49. 15, though stated to have been sent to the immediate official superior but there is no clinching material in that respect and he placed reliance in the case of Sumit Kumar Behera and another Vs. State of Odisha reported in 2019 (II) Orissa Law Reviews 49. It is further argued that even though P.W. 5, the Investigating Officer stated that his personal brass seal was given in zima to P.W. 4 but P.W. 4 is totally silent in that respect and the brass seal was also not produced in Court at any time and even the specimen seal impression was also not produced in Court at the time of production of the seized ganja. He further submitted that the learned Magistrate has committed illegality in collecting samples without comparing the seal impression which was available on the ganja packets with the specimen impression and sending it to the chemical examiner. It is further held that since no sample was collected at the spot and gunny bags were produced in Court after four hours, there is every possibility of tampering with the articles. It is highlighted by the learned counsel for the appellant that since the offence carries stringent punishment, in view of the non-compliance of the provision under section 42 of the N.D.P.S. Act and other lacunas in the case, benefit of doubt should be extended in favour of the appellant. Mr. Prem Kumar Patnaik, learned Additional Government Advocate, on the other hand, contended that merely because P.W. 5, the Inspector of Excise who conducted search and seizure has also conducted the investigation and submitted prosecution report, on that score alone, the appellant cannot be acquitted as the defence has failed to establish any kind of bias or enmity on the part of the Investigating Officer with the appellant. Learned counsel for the State placed reliance on the decision of the Hon'ble Supreme Court in the cases of Varinder Kumar Vs. State of Himachal Pradesh reported in (2019) 73 Orissa Criminal Reports (SC) 946 and S. Jeevanatham Vs. State through inspector of Police, T.N. reported in (2004) 5 SCC 230 . It is further contended that P.W. 5 was on patrolling duty when he received the reliable information and he immediately reduced the information into writing, which has been proved as Ext. State through inspector of Police, T.N. reported in (2004) 5 SCC 230 . It is further contended that P.W. 5 was on patrolling duty when he received the reliable information and he immediately reduced the information into writing, which has been proved as Ext. 15 which itself reflects that the copy of the same was handed over to one Sarat Chandra Das for its dispatch to the official superior and the defence having been failed to bring anything on record by way of cross-examination that such a document was created just to show pseudo compliance of the provision under section 42 of the N.D.P.S. Act, the contention of the learned counsel for the appellant regarding non-compliance of section 42 of the N.D.P.S. Act cannot be accepted. It is further contended that even though the brass seal was not produced in Court at any point of time but when the gunny bags were produced by the Investigating Officer immediately after its seizure and it was found to be in a sealed condition and there is no material that the seal had been tampered with, the contention of the learned counsel for the appellant that for the non-production of brass seal or the specimen seal impression before the learned Special Judge or the learned S.D.J.M., there is every possibility of manipulation with the seized articles, cannot be sustained. It is contended that the learned trial Court has discussed the evidence of each of the witnesses carefully and meticulously and also the documents proved by the prosecution and has rightly came to the conclusion that the case against the appellant has been proved beyond all reasonable doubts and there is no illegality or infirmity in the impugned judgment and order of conviction and therefore, the appeal should be dismissed. 8. 8. Adverting to the contentions raised by the learned counsel for the respective parties and coming to the first point canvassed by the learned counsel for the appellant that the appellant is entitled to get benefit of doubt as P.W. 5, the Inspector of Excise being an officer who conducted search and seizure also carried out investigation and submitted prosecution report and that the entire investigation is vitiated in the eye of law, I find that in the case of Mohan Lal (surpa), though the Hon'ble Supreme Court has held that fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person and any possibility of bias or a predetermined conclusion has to be excluded and leaving the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the Courts in a state of uncertainty and confusion, which has to be avoided but in the case of Varinder Kumar (supra), it has been held that the criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it un-directional exercise. A proper administration of the criminal justice delivery system, therefore, requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. The Hon'ble Court held that pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by individual facts of the case. In the case of S. Jeevanatham (supra) in which case the appellant was found guilty under section 8(c) read with section 20(b)(ii) of the N.D.P.S. Act and one of the contentions that was canvassed was that P.W. 8, who lodged the F.I.R. had himself conducted the investigation and hence, the entire investigation was vitiated, the Hon'ble Supreme Court referred to the decision in the case of State Vs. V. Jayapaul reported in (2004) 5 SCC 223 and held as follows: "In the instant case, P.W. 8 conducted the search and recovered the contraband article and registered the case and the article seized from the appellants was narcotic drug and the counsel for the appellants could not point out any circumstances by which the investigation caused prejudice or was biased against the appellants. P.W. 8 in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation." In the case in hand, except giving bald suggestion to P.W. 5 that the investigation was perfunctory and that nothing was seized from the house of the appellant from his conscious possession, nothing has been elicited by the defence to show that P.W. 5 had any animosity towards the appellant or that he was in any way personally interested in the case or that there was any sort of bias in the process of investigation. Therefore, on this score alone that P.W. 5 not only conducted search and seizure but also submitted the prosecution report on completion of investigation, by itself cannot be a ground for acquittal of the appellant. Therefore, the first contention of the learned counsel for the appellant challenging the impugned judgment fails. 9. Coming to the second contention of the learned counsel for the appellant regarding non-compliance of the provisions under section 42 of the N.D.P.S. Act, P.W. 5 stated that on 05.05.2010 at about 6.30 a.m. while he was on patrolling duty along with his excise staff at Rampur Chhak near Khaira Agarpada area, he got information regarding possession and selling/retailing of huge quantity of ganja in the house of the appellant and being satisfied with the information received from the reliable informer, he recorded the statement of the informer and sent a copy of the information to the Deputy Commissioner of Excise through Sarat Chandra Das, Excise Constable, who was present at the spot and he also intimated this fact over telephone. The said information has been marked as Ext. 15. On a plain reading of Ext. The said information has been marked as Ext. 15. On a plain reading of Ext. 15, it appears that though there is an endorsement of one Sarat Chandra Das to have received a copy of the same in order to give it to E.D.C. (CD), Cuttack, but the said Sarat Chandra Das has not been examined during trial. Nobody from the office of the Deputy Commissioner of Excise has been examined nor has any document from that office been proved to substantiate that Ext. 15 was in fact received in that office. There is no endorsement in Ext. 15 relating to receipt of this document in the office of the Deputy Commissioner of Excise Therefore, except the bald statement of P.W. 5 that Ext. 15 was sent to the Deputy Commissioner of Excise, there is neither any corroborative oral nor documentary evidence to substantiate such aspect. In the case of 2009 (II) OLR (SC) 628 Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 , the Hon'ble Supreme Court while dealing with the compliance of the requirements under sections 42(1) and 42(2) of the N.D.P.S. Act as was earlier held in the cases of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat reported in (2000) 2 SCC 513 and Sajan Abraham Vs. State of Kerala reported in (2001) 6 SCC 692 , has held as follows: "35.......(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" Since in view of the provisions under section 42(2) of the N.D.P.S. Act, an officer taking down any information in writing under sub-section (1) of the said section or recording grounds of his belief under the proviso thereto, has to send a copy thereof to his immediate official superior within seventy two hours and it is a case where P.W. 5 had the earlier reliable information while he was on patrolling duty and he himself has come up with a case of compliance of section 42, therefore, mere proving of Ext. 15 and mere statement of P.W. 5 without any corroborative oral and documentary evidence regarding its actual dispatch or receipt in the office of the Deputy Commissioner of Excise, cannot be sufficient to hold compliance of the said section inasmuch as possibility of concoction of such a document at a belated stage making it ante-dated cannot be ruled out. The Court has to make certain external checks to see whether section 42 of the N.D.P.S. Act has been complied with at right time or not, as the failure to comply renders the entire prosecution case suspect and causes prejudice to the accused and it has got a bearing on the credibility of the evidence of the official witnesses. 10. Coming to the next contention raised by the learned counsel for the appellant relating to non-production of brass seal or specimen seal impression at the time of production of seized gunny bags before the learned S.D.J.M., Balasore for collection of samples, I find that P.W. 5 has stated that after seizure of the contraband ganja in six bags, those were sealed with paper seal having signatures of the appellant and the witnesses and his personal seal impression was given on each of the bags including the balance and weight and measure and that he handed over the personal brass seal in the zima of P.W. 4 Patitapabana Kar. The zimanama has been proved as Ext. 20. Most surprisingly, P.W. 4 is totally silent to have received any such brass seal from P.W. 5. No brass seal was also produced either at the time of production of the seized gunny bags before the learned Special Judge, Balasore or the learned S.D.J.M., Balasore and even it was not produced in the Court during trial. Though the specimen seal impression according to P.W. 5 was taken in a paper and it has been marked as Ext. 14, but such paper containing specimen seal impression was also not produced before the Court at the time of collection of the sample for verification with reference to the seal impressions which were given on the paper slips attached to the gunny bags. Ext. 14, but such paper containing specimen seal impression was also not produced before the Court at the time of collection of the sample for verification with reference to the seal impressions which were given on the paper slips attached to the gunny bags. Ext. 14 as such indicates that the personal brass seal was returned back by P.W. 4 to P.W. 5 on 19.06.2010 and the paper containing the specimen seal impression and the endorsement of P.W. 4 was produced for the first time before the learned Special Judge on 31.08.2010. Learned counsel for the petitioner placed reliance in the case of 2018 (II) OLR 270 Ghadua Muduli and another Vs. State of Orissa, reported in (2018) 71 Orissa Criminal Reports 413, wherein it is held 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 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. Admittedly, the samples were not collected at the spot, but six gunny bags, which were seized at the spot, were first produced before the learned Special Judge, Balasore and then on the direction of the learned Special Judge, those were produced before the learned S.D.J.M. Balasore, where the samples were collected. The learned S.D.J.M., Balasore has opened a part file on 05.05.2010 where he has mentioned regarding production of six Nos. of jerry-bags and further mentioned that fifty grams of ganja were collected from each of the gunny bags and those were sent to the Chemical Examiner-cum-Deputy Drugs Controller, State Drugs Testing & Research Laboratory, Bhubaneswar through the Investigating Officer for chemical examination and report and the order sheet further reveals that direction was also given to the Investigating Officer to produce the bulk ganja before the Judge in-charge of Malkhana, Balasore The learned S.D.J.M., Balasore has not mentioned in the order-sheet dated 05.05.2010 that he verified the sealed gunny bags and found it to be intact. The order sheet also does not reveal any production of specimen seal impression or any comparison of the same with any seal, which is stated to have been given on the gunny bags after its seizure. Therefore, since the samples were not collected at the spot and there is no clinching materials that till the gunny bags were, produced in the Court, those were in safe custody with proper sealed condition, it cannot be said that possibility of tampering with the articles is totally ruled out. Neither the brass seal nor the specimen seal impression was produced before the learned Special Judge, Balasore as well as before the learned S.D.J.M., Balasore at the time of production of the seized articles and collection of sample packets and no explanation has been offered by the prosecution in that respect and therefore, I am of the humble view that it is a serious lacuna in the prosecution case. 11. There are certain other features in the case which cannot be. lost sight of. As per the evidence of the R.I. (R.W. 2), the landed property stood recorded in the name of Kanhu Kabi, wife of Nidhi Kabi of village Rampur. Kanhu Kabi was dead and his two sons namely, Mayadhar (appellant) and Gayadhar possessed the said property. Gayadhar was the eldest and Mayadhar (appellant) was the youngest. P.W. 3 and P.W. 4 both have stated that the appellant was living in a joint family. P.W. 5 has stated that the house of the appellant was consisting of five rooms which include three asbestos rooms and two pucca rooms. The recovery was made from the pucca bed room. No personal belongings of the appellant were seized from that room. In absence of seizure of personal belongings and clinching evidence to establish the physical possession of the appellant relating to the room in question, it is difficult to believe the sole possession of the room with the appellant. It is incumbent upon the prosecution to prove by cogent and reliable evidence that the appellant was in exclusive possession of the contraband ganja. Once exclusive possession is proved, conscious possession which means awareness about a particular fact is presumed unless rebutted by evidence on record. It is incumbent upon the prosecution to prove by cogent and reliable evidence that the appellant was in exclusive possession of the contraband ganja. Once exclusive possession is proved, conscious possession which means awareness about a particular fact is presumed unless rebutted by evidence on record. Once possession is established, the person who claims that it is not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. (Ref: Madan Lal and Anr. Vs. State of Himachal Pradesh; (2003) 26 Orissa Criminal Reports (SC) 287). P.W. 1 has stated that there were three to four adult members in the house of the appellant and P.W. 5 questioned all the adult members. In this case, no other family member is accused and the prosecution has not adduced any evidence as to who was occupying the particular room from where the contraband ganja was seized. This is a serious lacuna in the prosecution case. Sections 35 and 54 of the N.D.P.S. Act raise presumptions with regard to the culpable mental state on the part of the accused and also place the burden of proof in this behalf on the accused. However, the presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. If the prosecution fails' to prove the fundamental facts so as to attract the rigours of section 35 of the N.D.P.S. Act, the actus reus cannot be said to have been established. (Ref: Noor Aga Vs. State of Punjab : (2008) 16 SCC 417 ). 12. If the prosecution fails' to prove the fundamental facts so as to attract the rigours of section 35 of the N.D.P.S. Act, the actus reus cannot be said to have been established. (Ref: Noor Aga Vs. State of Punjab : (2008) 16 SCC 417 ). 12. In view of the foregoing discussions, when there is non-compliance of the provisions under section 42 of the N.D.P.S. Act and keeping of the brass seal in the zima of P.W. 4 is doubtful and neither the brass seal nor the specimen seal impression was produced before the Court at the time of production of the seized articles and collection of samples and the order-sheet of the learned S.D.J.M., Balasore dated 05.05.2010 is silent that the seized ganja packets were produced in a sealed condition to rule out the possibility of tampering with the same and above all when P.W. 5 being the officer conducting search and seizure has conducted investigation and no explanation is forthcoming from the side of the prosecution as to why any other competent officer was not assigned the role of investigator in the case and when in view of the stringent punishment prescribed for the offence, the prosecution is required to prove its case beyond all reasonable doubt with clinching material, which is lacking in the case, I am of the humble view that the impugned judgment and order of conviction is not sustainable in the eye of law. 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.