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2019 DIGILAW 514 (ORI)

Manoj Kumar Panigrahi v. State Of Orissa

2019-08-08

S.K.SAHOO

body2019
JUDGMENT : S. K. Sahoo, J. The appellant Manoj Kumar Panigrahi faced trial in the Court of learned Sessions Judge -cum- Special Judge, Ganjam, Berhampur in 2(a) C.C. No.01 of 2011 (N) (T.R. No. 02 of 2011) for the 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 29.01.2011 at about 11.00 a.m. at the first gate of Berhampur Town, he was found in illegal and unauthorized possession of forty six kilograms of contraband ganja (cannabis) in two gunny bags. The learned trial Court vide impugned judgment and order dated 13.12.2011 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for three years. 2. The prosecution case, in short, is that on 29.01.2011 at about 10.30 a.m. Sri Sibaprasad Gantayat (P.W.3), the Inspector of Excise, E.I. & E.B., Berhampur received information from reliable sources that on the same day some unknown persons were likely to transport contraband ganja (cannabis) from Digapahandi to Berhampur Town. On receipt of such information, P.W.3 intimated the said fact to his higher authority, i.e. the Deputy Commissioner of Excise, Berhampur and as per the direction of his authority; he proceeded to the first gate area of Berhampur Town along with his staff for performing patrolling duty. While he was performing patrolling duty at the first gate, he noticed the appellant standing there with two gunny bags. On suspicion, he detained the appellant and disclosed his identity to him in presence of the witnesses and enquired about the contents of the gunny bags. Since the appellant remained silent, P.W.3 suspected that the gunny bags might be containing contraband articles. He offered an option in writing to the appellant as to whether he wanted to be searched before an Executive Magistrate or a Gazetted Officer, in response to which the appellant also submitted in writing that he had no objection to be searched by P.W.3. Accordingly, after observing all formalities of search, in presence of the witnesses, P.W.3 searched the appellant and the two gunny bags and recovered contraband ganja (cannabis) inside the gunny bags. Accordingly, after observing all formalities of search, in presence of the witnesses, P.W.3 searched the appellant and the two gunny bags and recovered contraband ganja (cannabis) inside the gunny bags. P.W.3 burnt some portion of ganja, rubbed it in his palm and by virtue of his twenty four years of service experience, he became confirmed the articles to be ganja. On weighment, one jerry gunny bag was found to be containing twenty four kilograms of ganja and the other gunny bag was found to be containing twenty two kilograms of contraband ganja, in total, it came to be forty six kilograms of ganja. P.W.3 seized the ganja contained in two gunny bags at the spot, sealed the gunny bags using his personal brass seal. After sealing, the brass seal was given in the zima of P.W.2 Janardan Mangaraj, the Excise Constable who had accompanied him under zimanama with a direction to produce the same in the Court as and when required. P.W.3 prepared the seizure list, read over and explained the contents of the seizure list to the appellant and the witnesses, made over a copy of the seizure list to the appellant and obtained his signature on the reverse of the seizure list in token of receipt of the copy. P.W.3 arrested the appellant on the spot informing him the grounds of arrest and produced him along with the seized articles, original seizure list and other connected papers before the Court of learned Special Judge, Berhampur with a prayer to draw the sample from the seized ganja for sending it for chemical analysis. The appellant was remanded to the jail custody. As per the direction of the learned Special Judge, P.W.3 produced the seized contraband ganja in two gunny bags before the learned S.D.J.M., Berhampur, who drew the sample from each of the gunny bags and sealed the sample packets Ext.A and Ext.B under his personal seal. Duplicate sample ganja packets marked Ext.A/1 and Ext.B/1 was also collected. The gunny bags containing the rest of the seized ganja were re-sealed under the personal seal of the Court. The broken seal of P.W.3 was kept in a separate packet and sealed under the personal seal of the Court. Duplicate sample ganja packets marked Ext.A/1 and Ext.B/1 was also collected. The gunny bags containing the rest of the seized ganja were re-sealed under the personal seal of the Court. The broken seal of P.W.3 was kept in a separate packet and sealed under the personal seal of the Court. The sealed sample packets Ext.A and Ext.B along with copy of forwarding report were kept in another packet and sealed under the personal seal of the Court and it was handed over to the Excise Constable for taking it to the Assistant Chemical Examiner, Divisional Excise Chemical Testing Laboratory, Berhampur at Chatrapur. According to the prosecution, the broken personal seal of the Excise Inspector and duplicate sample ganja packets marked Ext.A/1 and Ext.B/1 and the rest of the seized ganja in gunny bags were deposited in the Court Malkhana vide CMR No. 3 of 2011 dated 29.01.2011. On completion of investigation, P.W.3 submitted the prosecution report against the appellant. 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. The defence plea of the appellant was one of denial. 5. In order to prove its case, the prosecution examined three witnesses. P.W.1 Jalandhar Sahu is an independent witness who 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 Janardan Mangaraj was the Excise Constable and he accompanied the Inspector of Excise (P.W.3) on patrolling duty. He stated about the search and seizure of contraband ganja in two gunny bags from the possession of the appellant and preparation of seizure list. He took zima of the brass seal from P.W.3 under zimanama and produced it in Court at the time of trial. P.W.3 Sri Siba Prasad Gantayat was the Inspector of Excise who stated about the search and seizure of contraband ganja in gunny bags from the possession of the appellant, preparation of the seizure list, sealing of the gunny bags using his personal brass seal, arresting the appellant and producing him in Court. He is also the investigating officer who on completion of investigation submitted prosecution report. The prosecution exhibited seven documents. He is also the investigating officer who on completion of investigation submitted prosecution report. The prosecution exhibited seven documents. Exts.1/1 is the seizure list, Ext.2 is the zimanama, Ext.3 is the option of the appellant, Ext.4 is the information to higher authority, Ext.5 is the experience certificate of P.W.3, Ext.6 is the letter of the I.O. to the learned Special Judge with a prayer for drawal of sample and Ext.7 is the chemical examination report. The prosecution also proved five material objects. M.O.I is the brass seal, M.Os. II & III are the sample packets and M.Os. IV and V are the gunny bags containing ganja. No witness was examined on behalf of the defence. 6. The learned trial Court after analysing the evidence on record and discussing the contention raised by the learned defence counsel relating to the non-compliance of the provision under section 42 of the N.D.P.S. Act, has been pleased to hold that the Excise Officer had informed his immediate superior authority i.e. the Deputy Commissioner of Excise in his letter dated 29.01.2011 regarding illegal transportation of ganja to Berhampur and has recorded the grounds of his belief, which has been marked as Ext.4 and therefore, the Court did not find any force in the contention advanced by the defence counsel in that regard. Coming to the contention raised by the learned defence counsel relating to non-compliance of the mandatory provision under section 50 of the N.D.P.S. Act, it was observed that the information was conveyed to the appellant vide Ext.3 in clear and categorical terms and therefore, the contention was repelled. The learned trial Court found the evidence of the official witnesses to be credible and above reproach and held that merely because P.W.2 and P.W.3 are departmental witnesses, their evidence cannot be discarded as it did not suffer from any inherent infirmity or improbability. The evidence of the official witnesses inspired confidence of the learned trial Court as it got corroboration from all possible details from other evidence on material aspects. The learned trial Court further held that no explanation whatsoever has been offered by the appellant as to how and under what circumstances the gunny bags containing ganja came to his possession and therefore, there would be valid presumption that the appellant was in conscious possession of the contraband articles. The learned trial Court further held that no explanation whatsoever has been offered by the appellant as to how and under what circumstances the gunny bags containing ganja came to his possession and therefore, there would be valid presumption that the appellant was in conscious possession of the contraband articles. Since the chemical examination report proved the seized articles to be flowering and fruiting tops of cannabis plant, which is commonly known as ganja and the appellant failed to produce/prove any document or authority in support of the possession of the contraband ganja, the learned trial Court held that the appellant was found in illegal and unauthorized possession of contraband ganja and accordingly found him guilty under section 20(b)(ii)(C) of the N.D.P.S. Act. 7. Mr. V. Narasingh, learned counsel appearing for the appellant challenging the impugned judgment and order of conviction contended that it is a case where P.W.3, the Inspector of Excise after conducting search and seizure has also investigated the matter and on completion of investigation submitted prosecution report. Relying on the decision of this Court in the case of Panchanan Das Vrs. State of Odisha, 2016 (65) OCR 702, Ghadua Muduli and another Vrs. State of Odisha, 2018 (71) OCR 413, Haren Mandal Vrs. State of Orissa, 2019 (75) OCR 387 and of the Hon'ble Supreme Court in the case of Mohan Lal Vrs. State of Punjab, 2018 (72) OCR 196 (SC), he argued that the investigation of a case under the N.D.P.S. Act is required to be carried out by a person, who is absolutely impartial, unbiased or unmotivated and when P.W.3 himself received reliable information and conducted the search and seizure of the contraband articles, in all fairness of things, he should not have investigated the matter and submitted the prosecution report without any exigencies of the situation which creates doubt in the fairness in the process of recovery and investigation. Learned counsel further argued that though P.W.3 has come up with a case that there was earlier reliable information relating to the transportation of ganja (cannabis) from Digapahandi to Berhampur and that he intimated the fact to his higher authority i.e. the Deputy Commissioner of Excise, Berhampur and as per his instruction, he proceeded on patrolling duty with his staff to work out the information and he also proved Ext.4 to be such written intimation but in the cross-examination, he categorically stated that neither he reduced the reliable information into writing and nor he sent the extract of the recorded grounds of his belief to the immediate authority which is contrary to the examination-in-chief. It is contended that since the version given by P.W.3 in the chief-examination vis-a-vis the cross-examination are contradictory to each other relating to reducing the reliable information into writing and intimating the higher authority vide Ext.4 and the prosecution has not made any attempt to clarify the ambiguity by way of re-examination, it creates doubt about the authenticity of the version of P.W.3. The learned counsel further submitted that even though P.W.2 and P.W.3 are the two official witnesses examined on behalf of the prosecution relating to the search and seizure, the evidence of P.W.2 reflects that while he along with P.W.3 was in patrolling duty, they saw the appellant with two bags, whereas P.W.3 stated that after receipt of the reliable information and getting necessary instruction from the higher authority, he along with P.W.2 proceeded for the patrolling duty. It is further contended that even though Ext.4 bears the seal impression of the Deputy Commissioner of Excise but there is no evidence as to who took Ext.4 to the Office of the Deputy Commissioner of Excise and neither any official from that Office has been examined nor any register from that office has been produced to prove the receipt of Ext.4. It is argued that even though the brass seal with which the seized contraband ganja in two gunny bags were sealed is stated to have been handed over to P.W.2 under zimanama Ext.2 but neither the brass seal nor the specimen seal impression was produced before the learned S.D.J.M., Berhampur at the time of production of the contraband articles for verification. The brass seal was produced for the first time in Court when P.W.2 was examined on 21.09.2011. The brass seal was produced for the first time in Court when P.W.2 was examined on 21.09.2011. It is further contended that since section 54 of the N.D.P.S. Act raises presumption against the appellant to have committed the offence under the Act, if he is found in possession of the contraband articles and fails to account it satisfactorily, it was the bounden duty of the prosecution to prove the search and seizure of such articles from the possession of the appellant with compliance of all legal formalities beyond all reasonable doubt which is lacking in the case. Learned counsel further argued that section 57 of the N.D.P.S. Act states that within forty eight hours next after any arrest or seizure made under the Act, the person effecting such arrest or seizure has to make a full report of all the particulars of such arrest and seizure to his immediate official superior but the evidence of P.W.3 is completely silent relating to the compliance of such provision. Even though such provision is held not to be mandatory but an officer effecting search and seizure cannot totally ignore such a provision otherwise adverse inference is to be drawn against the prosecution. While concluding his argument, the learned counsel contended that since the sole independent witness being examined as P.W.1 has not supported the prosecution case and the version of the two official witnesses are contradictory and there are lacunas in prosecution case relating to search and seizure, it is a fit case where benefit of doubt should be extended in favour of the petitioner. He placed reliance in the cases of Karnail Singh Vrs. State of Haryana, 2009 (44) OCR 183 and Directorate of Revenue Vrs. Mohammad Nisar Holia, 2008 (2) SCC 370 . Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand vehemently argued that even though the independent witness (P.W.1) has not supported the prosecution case, on that score the entire prosecution case cannot be discarded. He contended that the evidence of P.W.2 and P.W.3 is clear that the contraband ganja in two gunny bags were seized from the possession of the appellant while he was standing in a public place. Relying on the decision of the Hon'ble Supreme Court in the case of Sk. Raju Vrs. He contended that the evidence of P.W.2 and P.W.3 is clear that the contraband ganja in two gunny bags were seized from the possession of the appellant while he was standing in a public place. Relying on the decision of the Hon'ble Supreme Court in the case of Sk. Raju Vrs. State of West Bengal, 2018 (72) OCR 437 (SC), it is submitted that since the seizure and arrest was conducted in a public place, section 42 of the N.D.P.S. Act has got no application and section 43 of the N.D.P.S. Act would be attracted. Learned counsel for the State further argued that the defence has not brought anything on record to show that investigation is impartial, biased or has caused prejudice to the accused and therefore, no fault can be found with the investigation of the case by P.W.3. He placed reliance in the case of Varinder Kumar Vrs. State of Himanchal Pradesh, 2019 (73) OCR 946 (SC) wherein it is held that the law laid down in the case of Mohan Lal (supra) cannot be allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations and all the pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case. It is argued that the learned trial Court has rightly assessed the evidence on record and came to a categorical finding that the evidence of the official witnesses inspired confidence as it got corroboration from all possible details from other evidence on material aspects and therefore, the learned trial Court was quite justified in holding the appellant guilty and as such the appeal should be dismissed. 8. Adverting to the first contention raised by the learned counsel for the appellant relating to the unfairness on the part of P.W.3 in conducting search and seizure as well as investigation of the case and in submitting the prosecution report on completion of investigation, it appears that the prosecution has not come forward with any explanation as to why any other empowered officer did not carry out the investigation or at least the investigation was not supervised by some other superior officer. It is not on the case of the prosecution that there was any paucity of competent empowered officers to investigate such type of cases at the relevant point of time or that such officers were otherwise pre-occupied with some other important assignments for which they could not investigate the case. It is of course correct that the defence has not brought anything on record to show that investigation of the case by P.W.3 is in any way impartial, biased or has caused prejudice to the accused. In the case of Panchanan Das (supra), it is held in a case under the N.D.P.S. Act, where stringent punishment has been prescribed, ordinarily if a police officer is the informant in the case, in the fairness of things, the investigation should be conducted by some other empowered police officer or at least the investigation should be supervised by some other senior police officer as the informant police officer is likely be interested in the result of the case projected by him. However, if the informant police officer in the exigencies of the situation conducts investigation and submits final form, it cannot be per se illegal. The defence has to prove in what way such investigation is impartial, biased or has caused prejudice to the accused. In case of Ghadua Muduli (supra), it is held that since the investigation of a case under the N.D.P.S. Act is required to be carried out by a person who is absolutely impartial, unbiased and unmotivated, when P.W.4 received the reliable information, searched the vehicle and seized the contraband articles and lodged the first information report, in all fairness of things, he should not have investigated the matter without any exigencies of the situation. In the case of Haren Mandal (supra), it is held that 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. In the case of Mohan Lal (supra), the Hon'ble Supreme Court held as follows:- "14. In the case of Haren Mandal (supra), it is held that 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. In the case of Mohan Lal (supra), the Hon'ble Supreme Court held as follows:- "14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion." xxx xxx xxx xxx 25......It is therefore held that a 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. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof." In the case of Varinder Kumar (supra), however, the Hon'ble Supreme Court held as follows:- "18. The criminal justice delivery system cannot be allowed to veer exclusively to the benefit of the offender making it uni-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. 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. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case." Therefore, even though in all fairness of things, P.W.3 who has carried out the search and seizure, should not have investigated the case and submitted prosecution report without any exigencies of the situation and more particularly when the prosecution has not come forward with any explanation as to why any other empowered officer did not carry out the investigation or at least the investigation was not supervised by some other superior officer and thereby giving scope to the defence to raise finger that the investigation is not impartial, unbiased and unmotivated, I am of the humble view that on such ground the entire prosecution case cannot be discarded, however, it is one of the aspects which is to be kept in mind along with other lacunas, if any, in the prosecution case in the end to see whether the appellant is to be held guilty of the offence charged or not. 9. Coming to the next point which was canvassed by the learned counsel for the appellant is that P.W.3 stated to have received the reliable information on 29.11.2011 at about 10.30 p.m. that some persons were to transport ganja (cannabis) from Digapahandi to Berhampur and he stated to have intimated the fact to his higher authority i.e. the Deputy Commissioner of Excise, Berhampur and as per the instruction of his authority, he proceeded with his staff on patrolling duty to work out the information. P.W.3 proved Ext.4 as such information to the higher authority. In the cross-examination, however, P.W.3 stated that he has not reduced the reliable information into writing and he went to the spot after receipt of the information. He further stated that he has not sent the extract of the recorded grounds of his belief to the immediate authority. P.W.3 proved Ext.4 as such information to the higher authority. In the cross-examination, however, P.W.3 stated that he has not reduced the reliable information into writing and he went to the spot after receipt of the information. He further stated that he has not sent the extract of the recorded grounds of his belief to the immediate authority. Therefore, not only the version of P.W.3 given in the chief examination is contradictory to what he has stated in the cross-examination but also if the version of P.W.3 in the cross-examination is taken into account, then the existence of Ext.4 itself becomes doubtful. P.W.3 has not been re-examined by the prosecution to clarify the ambiguity which has cropped up in the cross-examination when he stated he did not reduce the reliable information to writing and did not send the extract of the recorded grounds of belief to the immediate authority. Section 138 of the Indian Evidence Act, 1872 clearly states that the re- examination shall be directed to the explanation of the matters referred to in the cross-examination. Therefore, if any ambiguity cropped up during cross-examination of a witness or a witness stated completely contrary to what he has deposed in the chief-examination, it is nonetheless the duty of the prosecution to make a prayer before the learned trial Court for re-examination of such witness and to explain the matters. The object is to give an opportunity to reconcile the discrepancies, if any, between the statement made in the examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. Where there is no ambiguity or where there is nothing to explain, question put in re-examination with the sole object of giving a chance to the witness to undo the effect of the previous statement should not be permitted during re-examination. Recall and re-examination of any person already examined must appear to the Court to be essential for the just decision of the case and exercise of such power should be made judicially and also with extreme care and caution. In absence of any re-examination, since the chief-examination and cross-examination of P.W.3 on the vital point cannot stand together, the prosecution case at the threshold is shrouded in mystery, the benefit of which would enure in favour of the appellant. In absence of any re-examination, since the chief-examination and cross-examination of P.W.3 on the vital point cannot stand together, the prosecution case at the threshold is shrouded in mystery, the benefit of which would enure in favour of the appellant. P.W.2 stated that while he along with P.W.3 was performing patrolling duty, they saw the appellant standing near the first gate and two bags were kept on the ground in front of him. The evidence of P.W.2 is completely silent relating to the receipt of any reliable information by P.W.3 or intimation of such information being sent to the higher authority in writing. Therefore, the version of these two official witnesses create doubt as to where the reliable information was received by P.W.3 and if it is received at all or not. Whereas P.W.3's evidence shows the receipt of reliable information prior to proceeding to the patrolling duty and then while on patrolling duty detecting the appellant standing near the first gate of Berhampur with gunny bags, the evidence of P.W.2 is completely silent relating to receipt of any reliable information rather it indicates as if while on patrolling duty, they per chance found the appellant with the gunny bags. In the case of Sk. Raju (supra), the Hon'ble Supreme Court has held that an empowered officer under section 42(1) is obligated to reduce to writing information received by him, only when an offence punishable under the N.D.P.S. Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with section 42, including recording of information received by empowered officer, is not mandatory, when an offence punishable under the Act is not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public. In that case, the Hon'ble Supreme Court took note of the fact of the case that the appellant was walking along the Picnic Garden Road and he was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. In that case, the Hon'ble Supreme Court took note of the fact of the case that the appellant was walking along the Picnic Garden Road and he was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the "public place" as appears in the explanation to section 43 and therefore, it was held that section 42 had no application. In the case of Karnail Singh (supra), the Hon'ble Supreme Court has held that the material difference between the provisions of sections 42 and 43 of the N.D.P.S. Act is that 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 Directorate of Revenue (supra), the Hon'ble Supreme Court has held as follows:- "14. Section 43, on plain reading of the Act, may not attract the rigours of section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under Sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If section 43 is to be treated as an exception to section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A declaration to the effect that the minimum requirement, namely, compliance of section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission." In this case, the prosecution through P.W.3 has come up with a case that search is being made on receipt of prior reliable information and there was even enough time for compliance of reducing the information to writing vide Ext.4, informing the same to the superior officer and obtain his permission before proceeding on patrolling duty with P.W.2 though the version of P.W.2 is different. Even if the compliance of section 42 of the N.D.P.S. Act is held to be not necessary as the search is required to be made at a public place which is open to the general public but when the prosecution comes up with the compliance of a provision on which there is diametrically opposite statement of a witness and it also runs contrary to the statement of another witness then the Court cannot shut its eyes to the glaring infirmities as it creates doubt about the sanctity of the prosecution version. 10. Ext.4 which is stated to have been sent by P.W.3 to his official superior, no doubt contains the seal of the Office of Deputy Commissioner of Excise but no evidence is forthcoming as to who carried the same to the Office of Deputy Commissioner of Excise. No official from such office has been examined and no register of such office has been produced to prove the receipt of such letter. Thus the receipt of such document by the immediate official superior has not been proved by adducing cogent evidence. 11. It is the prosecution case that P.W.2 kept the personal brass seal of P.W.3, which was utilized for sealing the two gunny bags. Neither the brass seal nor the specimen seal impression was forwarded to the Court at the time of forwarding of the gunny bags in the sealed condition. No paper slip containing the signatures of the witnesses was utilized while sealing the gunny bags. No sample was collected at the spot in presence of the witnesses. No requisition has been sent to any Executive Magistrate to remain present at the time of search and seizure. On verification of the part file opened by the learned S.D.J.M., Berhampur as per the order of the learned Special Judge, Ganjam, it reveals that the learned Magistrate simply verified that the two gunny bags were under seal and he found it to be intact and he opened the seal and collected the samples and then resealed the gunny bags as well as the samples with his personal seal and the broken seal of the I.O. was kept in a separate packet and sealed under his personal seal. Thus it is apparent that neither the brass seal nor the specimen seal impression was produced before the learned Magistrate at the time of production of the gunny bags. Thus it is apparent that neither the brass seal nor the specimen seal impression was produced before the learned Magistrate at the time of production of the gunny bags. A duty is cast upon the official conducting search and seizure to instruct the person who is given zima of the brass seal to produce it before the Court so that necessary verification can be made by the Court with reference to the seal which would be there on the packet containing bulk quantity of contraband articles or sample packets before sending it for chemical analysis. The Court is also required to insist for the production of brass seal or at least verify the specimen seal impression with the seal attached to the seized bags or the sample packets, if the samples are collected by the officer conducting search and seizure before production of the contraband articles in Court. In absence of such procedure being strictly followed, there is every chance of tampering with the articles or with the seal. It is the duty of the prosecution to prove by way of unimpeachable evidence that the contraband article which was seized at the spot is the very article which was produced in Court and sent for chemical examination and the entire path is to be covered by the prosecution by adducing cogent and reliable evidence as in a case of this nature the punishment is stringent in nature otherwise there would be every chance of prejudice being caused to the accused. 12. Section 57 of the N.D.P.S. Act states that if an officer makes any arrest or seizure under this Act then he has to make a full report of all the particulars of such arrest and seizure to his immediate official superior within forty-eight hours next after such arrest or seizure. The evidence of P.W.3 is completely silent relating to compliance of section 57 of the N.D.P.S. Act. No such full report has also been proved during trial. Even though section 57 of the N.D.P.S. Act is held not be mandatory but the official conducting search and seizure cannot totally ignore such a provision which is directory in nature as the same has got a salutary purpose and if he ignores such a provision then adverse inference should be drawn against the prosecution. 13. Even though section 57 of the N.D.P.S. Act is held not be mandatory but the official conducting search and seizure cannot totally ignore such a provision which is directory in nature as the same has got a salutary purpose and if he ignores such a provision then adverse inference should be drawn against the prosecution. 13. Section 54 of the N.D.P.S. Act deals with the presumption which is to be raised against the accused that he has committed an offence under the Act, if any contraband articles is found from his possession and he fails to account it satisfactorily. The burden will shift to the accused only when the prosecution proves the search and seizure of the contraband articles being conducted in strict compliance of all the mandatory provisions and other directory provisions as far as possible. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act. If the search and seizure becomes doubtful or illegal, the question of raising presumption against the accused under section 54 of the N.D.P.S. Act does not arise. 14. In the present case, when the independent witness has not supported the prosecution case, the version of the two official witnesses like P.W.2 and P.W.3 are contradictory to each other and the version of P.W.3 who is an important witness for the prosecution is full of ambiguities, the brass seal stated to have been given in the zima of P.W.2 or the specimen seal impression was not produced before the Court at the time of production of the seized articles, the provisions under section 57 of the N.D.P.S. Act has not been complied with and moreover when P.W.3 being the officer who not only carried out the search and seizure but also conducted the investigation and submitted the prosecution report, I am of the humble view that it cannot be said that the prosecution has successfully established the charge under section 20(b)(ii)(C) of the N.D.P.S. Act beyond all reasonable doubt against the appellant and therefore, the impugned judgment and the order of conviction cannot be sustained in the eye of law. Accordingly, the Criminal Appeal is allowed. The impugned judgment and order of conviction passed by the learned trial Court in convicting the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and the passing the sentence thereunder is hereby set aside. Accordingly, the Criminal Appeal is allowed. The impugned judgment and order of conviction passed by the learned trial Court in convicting the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and the passing the sentence thereunder is hereby set aside. The appellant is acquitted of such charge and he 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 to the learned trial Court forthwith for information.