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2019 DIGILAW 621 (ORI)

Herasha Majhi @ Hiresa Majhi v. State of Odisha

2019-10-22

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The appellants Herasha Majhi @ Hiresa Majhi and Jejanga Majhi faced trial in the Court of learned Sessions Judge-cum-Special Judge, Rayagada in C.T. Case No. 08 of 2011 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 06.02.2011 at about 5.00 a.m. in front of Kenduguda outpost under Padmapur police station in the district of Rayagada, they were found in possession of contraband ganja weighing 10 kgs. 640 grams and 13 kgs. 860 grams in two bags for selling purpose at Berhampur. The learned trial Court vide impugned judgment and order dated 05.08.2014 found the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh only) each, in default, to undergo further rigorous imprisonment for a period of one year each. 2. The prosecution case, as per the first information report lodged by Alekha Chandra Dalei (P.W.2), S.I. of Police, Kenduguda outpost, in short, is that on 05.02.2011 at about 9.00 p.m. some of the police officials of Kenduguda police outpost and CRPF personnel were performing blocking and area domination duty in front of Kenduguda outpost road. At about 5.00 a.m. on 06.02.2011, they found two persons coming from Sardhapur side in a Hero Honda Splendor motorcycle bearing registration no.OR-07-F-3000. The informant and his team stopped the motorcycle and found the pillion rider was carrying a jerry bag and another jerry bag was loaded on the carrier of the motorcycle and acute smell of ganja was coming from both the jerry bags. The informant suspected that the jerry bags might be containing ganja. On being confronted by the informant, the rider of the motorcycle identified himself as Herasha Majhi (appellant no.1) and the pillion rider identified himself as Jejanga Majhi (appellant no.2). Both the appellants confessed that they were transporting ganja for sale at Berhampur. After giving his identity, the informant offered the appellants with the option of being searched by a Gazetted Officer or in presence of an Executive Magistrate. The appellants opted in writing that they wanted to be searched in presence of an Executive Magistrate. Both the appellants confessed that they were transporting ganja for sale at Berhampur. After giving his identity, the informant offered the appellants with the option of being searched by a Gazetted Officer or in presence of an Executive Magistrate. The appellants opted in writing that they wanted to be searched in presence of an Executive Magistrate. The informant sent intimation about the detention of the appellants with jerry bags to his official superior over phone and also sent requisition of the Sub-Collector, Gunupur for deputation of an Executive Magistrate to remain present at the spot during search and seizure and the appellants were detained. Khirabdhi Behera (P.W.12), Tahasildar, Padmapur arrived at the spot on 06.02.2011 at about 01.00 p.m. as per the order of A.D.M., Rayagada and after giving his personal search before the appellants as well as taking the personal search of other witnesses, in their presence, the appellants were searched and the contraband ganja found in the two bags were weighed by weighman Jitendra Mohapatra (P.W.7) and net quantity of ganja found in one bag was 10 kgs. 640 grams and in the other bag, it was 13 kgs. 860 grams and accordingly, a weighment chart was prepared. From each of the bag, sample ganja of 50 gms. in duplicate was collected in two packets after homogenous mixture separately. The sample packets collected from the jerry bag containing 10 kgs. 640 grams were marked as A-1 and A-2 and the sample packets collected from the jerry bag containing 13 kgs. 860 grams were marked as B-1 and B-2 respectively. The sample packets so collected were sealed with wax and personal seal impression of the informant was put on it and similarly the bulk quantity of ganja found in the jerry bags after collection of samples were also sealed and a seizure list was prepared in presence of the witnesses, P.W.12 and the weighman. The informant seized the weighing machine in presence of the witnesses as per seizure list and left it in the zima of the weighman (P.W.7). The brass seal which was used for sealing and packing of the ganja packets was also left in the zima of P.W.7 under proper zimanama. The informant seized the weighing machine in presence of the witnesses as per seizure list and left it in the zima of the weighman (P.W.7). The brass seal which was used for sealing and packing of the ganja packets was also left in the zima of P.W.7 under proper zimanama. The informant found prima facie case under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants for illegal possession and transportation of commercial quantity of ganja in a motorcycle and accordingly, prepared the written report and sent the report to the Inspector in charge of Padmapur police station for registration of the case through a constable. 3. The Inspector in-charge of Padmapur police station namely, Smt. Jyotsnna Kaunri (P.W.13) on receipt of the written report through constable, registered Padmapur P.S. Case No. 08 of 2011 against the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and took up investigation. During course of investigation, the I.O. examined the constable who carried the written report, visited the spot, examined the informant, took charge of the seized articles and prepared the spot map (Ext.14). She examined the appellants and arrested them and returned to the police station with the appellants and the seized articles and kept the seized articles in the P.S. Malkhana after making necessary entry in the Malkhana register. On 07.02.2011 the appellants were forwarded to Court and the seized bulk ganja packets and sample packets were also produced in Court and prayer was made by the I.O. for sending the seized sample packets for chemical analysis and also to keep the seized bulk ganja packets in Court Malkhana. The learned Special Judge, Rayagada directed for production of the sample packets before the learned S.D.J.M., Rayagada for sending it to R.F.S.L., Berhampur and accordingly, the I.O. produced the sample packets before the learned S.D.J.M., Rayagada who forwarded the same for chemical analysis through constable along with specimen seal impression marked as Ext.C in a sheet of paper. A separate petition was filed to receive the bulk ganja packets marked as Exts.A and B in the Court Malkhana along with the sample packets marked as Exts.A-2 and B-2. The prayer was allowed. A separate petition was filed to receive the bulk ganja packets marked as Exts.A and B in the Court Malkhana along with the sample packets marked as Exts.A-2 and B-2. The prayer was allowed. A query was made while forwarding the sample packets for chemical analysis as to whether the brass seal impression on the inner cover of exhibits A-1 and B-1 tallies with that of specimen seal impression of Ext.C. The I.O. also seized the station diary of Kenduguda outpost and the message for deputation of Executive Magistrate to A.D.M., Rayagada under seizure list Ext.11/1. The station diary entry book and Malkhana register of Padmapur police station were seized under seizure list Ext.12 and those were left in the zima of S.I. of police Krushna Chandra Rout executing zimanama Ext.21. On 07.02.2011 the I.O. made a full report of all the particulars of arrest and seizure to the Superintendent of Police, Rayagada and on 07.03.2011 she seized the full report as per seizure list Ext.10. On 25.03.2011 the I.O. received the chemical examination report (Ext.23) which indicated that the exhibits marked as A-1 and B-1 were found to contain fruiting and flowering tops of cannabis plants (ganja) and the seal impression of exhibits A-1 and B-1 were found tallied with the specimen seal impression of Ext.C. On 22.06.2011 on completion of investigation, charge sheet under section 20(b)(ii)(C) of the N.D.P.S. Act was submitted against the appellants. 4. The learned trial Court framed charge under section 20(b)(ii)(C) of the N.D.P.S. Act on 01.11.2011 and the appellants refuted the charge and pleaded not guilty and claimed to be tried. 5. The defence plea of the appellants was one of denial. 6. In order to prove its case, the prosecution examined thirteen witnesses. P.W.1 Lingaraj Palka was the constable attached to Kenduguda outpost who accompanied the informant (P.W.2) for patrolling duty. He stated about carrying of ganja in two gunny bags by the appellants in a motorcycle and search and seizure of ganja from the possession of the appellants in presence of the Executive Magistrate. P.W.2 Alekh Chandra Dalai, S.I. of Police of Kenduguda outpost is the informant in the case who detected the appellants carrying ganja in two bags on a motorcycle, seized it after complying the required procedure in presence of the witnesses. P.W.2 Alekh Chandra Dalai, S.I. of Police of Kenduguda outpost is the informant in the case who detected the appellants carrying ganja in two bags on a motorcycle, seized it after complying the required procedure in presence of the witnesses. P.W.3 Pradeep Kumar Rath was the A.S.I of Police attached to Kenduguda outpost who accompanied P.W.2 for patrolling duty. He also stated about the search and seizure of ganja from the possession of the appellants. P.W.4 Surendra Sabar was the police constable attached to District Police Office, Rayagada who is a witness to the seizure of detailed report regarding seizure of ganja as per seizure list Ext.10 on being produced by the steno to S.P., Rayagada. P.W.5 Rabinarayan Acharya, P.W.6 Debendra Panda and P.W.7 Jitendra Mohapatra who are the independent witnesses did not support the prosecution case and they were declared hostile by the prosecution and cross-examined. P.W.8 Simanchala Sahu was the constable attached to Padmapur Police Station who stated about the seizure of one command certificate and one RFSL receipt under seizure list Ext.9. P.W.9 A. Kamaraju Patra was the Havildar and P.W.10 Ratnakar Bhanja was the Sepoy of CRPF Camp at Kenduguda respectively who accompanied P.W.2 for patrolling duty and they stated about search and seizure of ganja from the possession of the appellants in presence of the Executive Magistrate. P.W.11 Rabi Pradhan was a constable attached to the Padmapur Police Station who is a witness to the seizure of detailed report regarding seizure of ganja as per seizure list Ext.10 on being produced by the steno to S.P., Rayagada and one Malkhana register vide Ext.12. P.W.12 Khirabdhi Behera was the Tahasildar, Padmapur, who on receipt of a message from A.D.M., Rayagada proceeded to the spot and he stated about the search and seizure of contraband ganja in two bags from the possession of the appellants, collection of sample packets from the bags, sealing of the bags and sample packets and preparation of the seizure lists in which he put his signatures. P.W.13 Smt. Jyotsnna Kaunri was the Inspector in charge of Padmapur police station, who registered the case on receipt of the written report from P.W.2. She is also the investigating officer. The prosecution exhibited twenty seven documents. P.W.13 Smt. Jyotsnna Kaunri was the Inspector in charge of Padmapur police station, who registered the case on receipt of the written report from P.W.2. She is also the investigating officer. The prosecution exhibited twenty seven documents. Ext.1 is the option of appellant no.1 Hiresa Majhi, Ext.2 is the option of appellant no.2 Jejanga Majhi, Ext.3 is the message sent to S.D.M. for deputation of an Executive Magistrate, Exts.4, 5, 9, 10, 11/1, 12 and 13 are the seizure lists, Exts.6, 20 and 21 are the zimanama, Ext.7 is the certificate of the Executive Magistrate, Ext.8 is the F.I.R., Ext.14 is the spot map, Ext.15 is an application by the I.O. to Court for sending exhibits to R.F.S.L., Berhampur for chemical examination and opinion, Ext.16 is another application by the I.O. to Court to keep the mal items in the Court Malkhana, Ext.17 is the forwarding report of exhibits to R.F.S.L., Ext.18 is the command certificate, Ext.19 is the acknowledgement receipt, Ext.22 is the detailed report, Ext.23 is the chemical examination report, Ext.24 is the statement of R.N. Acharya (P.W.5), Ext.25 is the statement of Debendra Panda (P.W.6) and Ext.26 is the statement of Jitendra Mahapatra (P.W.7) recorded by the I.O. during investigation and Ext.27 is the extract of station diary entries nos.124, 125 dated 06.02.2011 and 142 dated 07.02.2011. The prosecution also proved six material objects. M.O.I is the sample packet, M.O.II is the seized ganja, M.O.III is the sample packet of ganja (A-2), M.O.IV is the sample packet of ganja (B-2) and M.Os.V and VI are the gunny bags containing seized ganja. No witness was examined on behalf of the defence. 7. The learned trial Court after analysing the evidence on record came to hold that the evidence of P.Ws. 1, 2, 3, 8 and 9 that the appellants were carrying ganja in two jerry bags have not been discredited and there was nothing to disbelieve them merely because they were official witnesses. The confession of the appellants before the Executive Magistrate (P.W.12) was accepted and it was held by the learned trial Court that the conscious possession of the bags M.Os.V and VI can safely be attributed to the appellants. The confession of the appellants before the Executive Magistrate (P.W.12) was accepted and it was held by the learned trial Court that the conscious possession of the bags M.Os.V and VI can safely be attributed to the appellants. It was further held that noncompliance of the provision under section 42(2) of the N.D.P.S. Act has no bearing on the merits of the case as there was no occasion for P.W.2 or his party coming to know about the arrival of the appellants or transportation of contraband ganja. The learned trial Court further held that there is no material on record that there was any tampering of the seal or displacement of the seized articles while keeping the same in the police station Malkhana and there is no missing link in the chain of circumstances from the point of seizure till the arrival of the seized articles in Court. It was further held that the presence of ganja leaves would not rule out the presence of flowering and fruiting tops and that there was substantial compliance of section 57 of the N.D.P.S. Act which is not mandatory. It was further held that the prosecution has successfully proved that the appellants were transporting 24.5 kgs. of ganja and they have failed to rebut the legal presumption arising under section 54 of the N.D.P.S. Act and accordingly the appellants were found guilty under section 20(b)(ii)(C) of the N.D.P.S. Act. 8. Mr. Satyabrata Pradhan, learned counsel appearing for the appellants strenuously argued that the independent witnesses to the search and seizure of contraband ganja have not supported the prosecution case for which they have been declared hostile and since the version of the official witnesses are doubtful, the learned trial Court was not justified in convicting the appellants. He further argued that there are discrepancies regarding date and time of search and seizure as per the statements of the prosecution witnesses. The ownership of the motorcycle in which the appellants were stated to be carrying contraband ganja has not been established by the prosecution and therefore, it is doubtful as to how the motorcycle in question came into the possession of the appellants. The ownership of the motorcycle in which the appellants were stated to be carrying contraband ganja has not been established by the prosecution and therefore, it is doubtful as to how the motorcycle in question came into the possession of the appellants. Challenging the safe custody of the contraband ganja after its seizure till its production in Court, it was argued that when neither the Malkhana register nor its extract has been produced in the trial Court and the brass seal of the informant with which the contraband ganja and the sample packets were sealed was not produced in Court at the time of production of the seized articles for verification, it is a serious lacuna in the prosecution case. It was further argued that the compliance of section 57 of the N.D.P.S. Act has not been satisfactorily proved by the prosecution which has a bearing on the appreciation of the evidence. Placing reliance in the cases of Ramakrushna Sahu Vs. State of Orissa, (2018) 70 OCR 340, Gurbax Singh Vs. State of Haryana, (2001) AIR SC 1002, State of Punjab Vs. Balbir Singh, (1994) 7 OCR 283 (SC), Prasanta Kumar Behera Vs. State of Orissa, (2016) 64 OCR 40, Ghadua Muduli Vs. State of Orissa, (2018) 71 OCR 413, Zwinglee Ariel Vs. State of M.P., (1954) AIR SC 15, Paramahansa Jadab Vs. The State, (1964) AIR Orissa 144 and Makhan Singh Vs. State of Haryana, (2015) 61 OCR 532 (SC) while canvassing different points, it was argued that benefit of doubt should be extended in favour of the appellants. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate on the other hand supported the impugned judgment and contended that even though the independent witnesses have not supported the prosecution case relating to the search and seizure of contraband ganja from the possession of the appellants but since all the official witnesses have consistently stated in that respect which has not been shaken in the crossexamination and their version is clear, cogent and trustworthy and they have no axe to grind against the appellants to falsely entangle them in a case of this nature, the learned trial Court rightly accepted such evidence and found the appellants guilty of the offence charged. He argued that immediately after the detention, the appellants disclosed before P.W.2 that they were taking the gunny bags containing ganja for sale at Berhampur and they also confessed before P.W.12 and their conduct is admissible as res gestae under section 6 of the Evidence Act and in view of section 26 of the Evidence Act, the confessional statements made by the appellants before P.W.12 is admissible and merely because the prosecution has not adduced any evidence relating to the ownership of the motorcycle in question and how such motorcycle came into the possession of the appellants, it would not ipso facto be a ground to discard the transportation of contraband ganja in that motorcycle. It was further argued that after the contraband ganja was seized and sealed, it was properly stored in the P.S. Malkhana before its production in Court and as per the order of the Court, it was also produced before the chemical examiner in sealed condition and the defence has not challenged the factum of safe custody of the contraband ganja after its seizure by cross-examining the relevant witness (P.W.13) and therefore, the hypothetical argument that there was possibility of tampering with the seized contraband ganja cannot be accepted. He argued that there is substantial compliance of the provision under section 57 of the N.D.P.S. Act and placing reliance on the Division Bench decision of Punjab and Haryana High Court in the case of State of Haryana Vs. Padam @ Parmod, (2019) 2 Crimes(HC) 13 (P & H), it was argued that since there is no infirmity in the impugned judgment, the appeal should be dismissed. 9. It is true that the independent witnesses like P.Ws.5, 6 and 7 have not supported the prosecution case for which they have been declared hostile by the prosecution and allowed to be cross-examined by the learned Special Public Prosecutor under section 154 of the Indian Evidence Act, 1872. Merely because the independent witnesses have turned hostile, the evidence of the police witnesses cannot be disbelieved. Conviction can be based solely on the testimony of official witnesses; condition precedent is that the evidence of such witnesses must be reliable, trustworthy and must inspire confidence. There is absolute no command of law that the testimony of the police officials should always be treated with suspicion. Conviction can be based solely on the testimony of official witnesses; condition precedent is that the evidence of such witnesses must be reliable, trustworthy and must inspire confidence. There is absolute no command of law that the testimony of the police officials should always be treated with suspicion. Of course while scrutinising the evidence, if the Court finds the evidence of the police officials as unreliable and untrustworthy, the Court may disbelieve them but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is based on the principle that quality of the evidence weighs over the quantity of evidence. The rule of prudence requires a more careful scrutiny of the evidence of the police officials, since they can be said to be interested in the result of the case projected by them. Absence of any corroboration from the independent witnesses does not in any way affect the creditworthiness of the prosecution case. Non-supporting of the prosecution case by independent witnesses in N.D.P.S. Act cases is a usual feature but the same cannot be a ground to discard the entire prosecution case. If the evidence of the official witnesses which is otherwise clear, cogent, trustworthy and above reproach is discarded in such cases just because the independent witnesses did not support the prosecution case, I am afraid that it would be an impossible task for the prosecution to succeed in a single case in establishing the guilt of the accused. Therefore, the Court has got an onerous duty to appreciate the relevant evidence of the official witnesses and determine whether the evidence of such witnesses is believable after taking due care and caution in evaluating their evidence. In case of Prasanta Kumar Behera (supra), it is held as follows:- "However it is the settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be a ground to discard the prosecution case in toto. On the other hand if the statements of the official witnesses relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. On the other hand if the statements of the official witnesses relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence and determine whether the evidence of the Police Officer/Excise Officer is believable after taking due care and caution in evaluating their evidence." 10. Now it is to be seen how far the evidence of the official witnesses are reliable and trustworthy. P.W.2, the informant has stated that while he along with the other police officials were performing patrolling duty near Kenduguda outpost, they found two persons coming in a motorcycle carrying two gunny bags containing something. They detained those two persons and since ganja smell was emanating from the gunny bags, on being confronted by P.W.2, those two persons not only disclosed their identity as appellants but also told that they were carrying the gunny bags containing ganja for sale at Berhampur. The Hero Honda Splendor motorcycle which the appellants were riding was having registration no.OR-07-E-3000. P.W.2 communicated regarding detention of contraband goods to the Inspector in-charge of Padmapur police station, S.D.P.O. and Superintendent of Police. When the appellants were asked by P.W.2 as to whether they wanted to be searched by the police officials or by an Executive Magistrate, the appellants exercised their option in writing to be searched by an Executive Magistrate. Letters of option have been proved by P.W.2 as Exts.1 and 2. P.W.2 sent intimation to Sub-Collector, Gunupur for deputation of an Executive Magistrate to the spot to remain present during search and seizure. The copy of the message has been marked as Ext.3. The evidence of P.W.2 on the above aspect gets support from the evidence of other official witnesses like P.W.1, P.W.3, P.W.9 and P.W.10. The learned counsel for the appellants contended that P.W.3 admitted that he had not signed on the seizure lists or any other documents in token of his presence at the spot at the relevant time of search and seizure. P.W.9 has also stated that no document relating to the fact that he was on duty at the spot on the relevant date of seizure was seized from him by the S.I. of police. P.W.9 has also stated that no document relating to the fact that he was on duty at the spot on the relevant date of seizure was seized from him by the S.I. of police. P.W.10 has stated that he has not signed in any seizure lists and no document in token of the fact that he was on duty on the relevant date of seizure was seized from him by the police. It is contended by the learned counsel for the appellants that since there is no documentary evidence to support that P.Ws.3, 9 and 10 were present at the spot at the time of detention of the motor cycle or at the time of search and seizure, their evidence should be taken out of consideration as there was every chance of including those official witnesses as the witnesses to the search and seizure at a belated stage. Sub-sections (4) and (5) of section 100 of Cr.P.C. read with section 165(4) of Cr.P.C. nowhere indicate that all the persons witnessing a search are required to sign on the seizure list. Even they shall not be required to attend the Court as witnesses to the search unless specifically summoned by it as per provision under section 100(5) of Cr.P.C. Signing of the seizure list is not a part of witnessing the search. The officer making search shall as far as practicable call upon two or more independent and respectable persons of the locality to remain present at the time of search and seizure and sign the search/seizure list. Where there are number of persons present, the officer concerned may in his discretion make two or more of them as witnesses to the search and seizure and obtain their signatures on the relevant documents. Therefore, a seizure list is not required to be signed by all the witnesses present at the time of search and seizure and the evidence of a witness to the search and seizure which is otherwise reliable and trustworthy and his presence at the relevant time cannot be brushed aside merely because he is not a signatory to the seizure list. In other words, even if the officer making search fails to obtain the signature of a person who is a witness to the seizure in the seizure list, it may amount to an irregularity and the effect of the same would depend upon the facts and circumstances of each case. Even if for the sake of argument, the evidence of P.Ws.3, 9 and 10 are taken out of consideration on the ground that there is no documentary evidence to show their presence at the spot at the relevant time, there remains two official witnesses like P.Ws. 1 and 2 who have deposed regarding the detention of the appellants while coming on the motorcycle carrying two gunny bags and option being given by the appellants to be searched by an Executive Magistrate. The investigating officer (P.W.13) seized the station diary of Kenduguda outpost, message for deputation of Executive Magistrate to A.D.M., Gunupur, Message of A.D.M., Rayagada for deputation of Executive Magistrate and command certificate for deputation of staff for Naka duty of Kenduguda outpost on production by S.I. of police Alekha Chandra Dalai as per the seizure list Ext.11/1. The command certificate of the constable (P.W.1) has also been seized under seizure list Ext.9. Though it has been elicited in the cross-examination of P.W.2 that there is no document to show that he was directed to remain present for the blocking which was going on at the spot, nothing further has been elicited to discard the evidence of the police officials that they were performing patrolling duty near the outpost and that they detained the appellants while carrying two gunny bags in a motorcycle from which smell of ganja was emanating and that as per the option given by the appellants, request was made by P.W.2 to the A.D.M., Gunupur for deputation of an Executive Magistrate to remain present at the time of search and seizure. Regarding discrepancies of the date and time of search and seizure in the evidence of the prosecution witnesses as contended by the learned counsel for the appellants, it is highlighted that P.W.2 gave prevaricating statements. Regarding discrepancies of the date and time of search and seizure in the evidence of the prosecution witnesses as contended by the learned counsel for the appellants, it is highlighted that P.W.2 gave prevaricating statements. However, on a careful scrutiny of the evidence of P.W.2, it appears that though he along with other police officials were performing patrolling duty near the outpost on 05.02.2011 but the detection was made on 06.02.2011 at 5.00 a.m. whereafter intimations were sent to different authorities and ultimately the seizure was effected after the arrival of the Executive Magistrate at 2.00 p.m. P.W.1 has also stated that the Executive Magistrate arrived at the spot at about 1.00 p.m. P.W.12, the Executive Magistrate stated that he reached at the spot at about 1.00 p.m. whereafter the formalities of search and seizure were conducted. P.W.3 has stated that the patrolling duty started at 9.00 p.m. on 05.02.2011 and the appellants were detained while coming on the motor cycle at 5.00 a.m. on 06.02.2011 and the Executive Magistrate arrived at the spot at 1.00 p.m. P.W.9 and P.W.10 have stated that they were performing patrolling duty on 05.02.2011 night and the appellants were detained with their motorcycle on 06.02.2011 at about 5.00 a.m. and the Executive Magistrate arrived at the spot at about 1.00 p.m. on 06.02.2011. Thus there are no discrepancies in the evidence of the official witnesses relating to the date and time of the search and seizure rather it indicates that the patrolling duty was being performed by P.W.2 and his team during the night on 05.02.2011 near Kunduguda outpost and the appellants with their motorcycle were detained on 06.02.2011 at about 5.00 a.m. and then intimations were sent to different authorities and when P.W.12 arrived at the spot on 06.02.2011 at about 1.00 p.m., in his presence the search and seizure took place. In the seizure list (Ext.4), the timing of seizure is reflected as 06.02.2011 at 2.00 p.m. P.W.13, the Inspector in-charge of Padampur police station has stated that Kenduguda outpost was under her control and its staff used to act as per her direction but NAKA duty and area domination duty were not performed as per her direction but it was as per the direction of the S.I. of police of Kenduguda outpost. Therefore, the contention of the learned counsel for the appellants regarding discrepancies of the date and time of search and seizure has no merit and liable to be rejected. 11. The next aspect which is to be dealt is the confessional statement of the appellants before P.W.2 and P.W.12. The learned trial Court has placed reliance on the confession of the appellants before P.W.12. P.W.2 has stated that after the detention, the appellants disclosed before him that they were taking the gunny bags containing ganja for sale at Berhampur and when P.W.12 came to the spot at 2.00 p.m. and two local witnesses namely Debendra Panda and Rabinarayan Acharya also came there, on being asked by P.W.12, the appellants confessed before him that they were taking gunny bags containing ganja for sale. It is not disputed that the evidence of P.W.2 relating to confession of the appellants gets corroboration not only from the evidence of P.W.1 and P.W.9 but also from the evidence of P.W.12. There is no cross-examination on such aspects and even no suggestion has been given to any of these witnesses that the appellants have made no confession either before P.W.2 or P.W.12. The learned counsel for the appellants placing reliance on the decision of the Hon'ble Supreme Court in the case of Zwinglee Ariel (supra) and of this Court in the case of Paramhansa Jadab (supra) contended that such confessional statements are inadmissible. Under section 25 of the Evidence Act, no confession made by an accused to a police officer can be admitted in evidence against him. Section 26 states that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Therefore, section 26 is an exception by which a confessional statement made in the immediate presence of the Magistrate is made provable and becomes admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. In case of Indra Dalal Vs. State of Haryana, (2015) 61 OCR 1001 (SC), the Hon'ble Supreme Court while discussing section 26 of the Evidence Act held as follows:- "16. In case of Indra Dalal Vs. State of Haryana, (2015) 61 OCR 1001 (SC), the Hon'ble Supreme Court while discussing section 26 of the Evidence Act held as follows:- "16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts. 17. The word 'confession' has no where been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible." In case of Zwinglee Ariel (supra), it is held that if the confessional statement is not recorded by the Magistrate in the manner prescribed by section 164 of Cr.P.C., the same will not be admissible in evidence under section 26 of the Evidence Act even if such confession is made in the immediate presence of the Magistrate. In case of Paramhansa Jadab (supra), it is held that "police custody" for purpose of section 26 does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. As soon as an accused or suspected person comes into the hands of a police officer, he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in "custody" within the meaning of section 26 of the Evidence Act. Even indirect control over the movements of suspects by the police would amount to 'police custody' within the meaning of section 26. The learned counsel for the State placed reliance in the case of Padam @ Parmod (supra) in which a Division Bench of Punjab and Haryana High Court held that the expression 'Magistrate' in section 26 of the Evidence Act includes 'Executive Magistrate' and not only the 'Judicial Magistrate'. Even though P.W.2 has stated that after their detention, the appellants confessed before him that they were taking the gunny bags containing ganja for sale at Berhampur but in view of section 25 of the Evidence Act, it is not admissible. P.W.12 stated that when he arrived at the spot at about 1.00 p.m., he found the appellants were present near a motorcycle and two gunny bags were kept on the motorcycle and the police persons were present surrounding them. He disclosed his identity and on being asked, the appellants disclosed their names and told that they were taking ganja for sale. P.W.12 has not reduced the confessional statement into writing. Except giving his identity, P.W.12 has not followed any of the requirements as laid down under section 164 of Cr.P.C. for recording of confession by the Magistrate. Even if it is not a confession made before a Magistrate which was reduced into writing but since it is sought to be utilized against the maker thereof, prudence requires that not only the Magistrate must disclose his identity before the maker but also explain to the person concerned that he is not bound to make a confession and if he does so, it may be used against him. There must be also material that the Magistrate has reason to believe that confessional statement is being made voluntarily. There must be also material that the Magistrate has reason to believe that confessional statement is being made voluntarily. If these minimum requirements are not adhered to and the confessional statement made before the Magistrate which is not reduced to writing, is used against the maker thereof, it is likely to cause serious prejudice to him. In the present case, the appellants were detained in police custody since 5.00 a.m. and P.W.12 arrived at the spot at about 1.00 p.m. which is almost eight hours after their detention. In such a scenario when they were surrounded by police, it is very difficult to accept that the confession, if any, was made in a free mind. There was every possibility of influence of the police to the appellants by way of threat, inducement or promise. Therefore, it would not be proper to place reliance on the so-called confessional statements made by the appellants before P.W.12. Moreover, it is a joint confessional statement and it is not known which appellant spoke what words and what sequence. Another interesting feature is that in the first information report, it is mentioned that when the Executive Magistrate interrogated, the appellants disclosed that they were carrying ganja in their motorcycle after procuring the same at the cost of Rs.500/- per bag with a view to sale in higher price. Thus, there are discrepancies relating to the exact nature of disclosure made by the appellants before P.W.12. The appellants specifically denied in their statements recorded under section 313 of Cr.P.C. to have made any such confession. In view of the foregoing discussions, I am of the humble view that the learned trial Court was not justified in placing reliance on the confessional statements of the appellants. Even otherwise, the confessional statements made by the appellants before P.W.12 cannot be utilized as res gestae under section 6 of the Evidence Act as it is not a spontaneous statement but was given after eight hours of police detention. To form particular statement as part of the same transaction as required under section 6 of Evidence Act, it must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after the occurrence. In the case of Gentela Vijayavardhan Rao Vs. To form particular statement as part of the same transaction as required under section 6 of Evidence Act, it must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after the occurrence. In the case of Gentela Vijayavardhan Rao Vs. State of Andhra Pradesh, (1996) 6 SCC 241 , while discussing section 6 of the Evidence Act, the Hon'ble Supreme Court held that the principle or law embodied in section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. Thus the contention of the learned counsel for the State that conduct of the appellants is admissible as res gestae, is not acceptable. 12. Let me now analyse the evidence on record relating to the search and seizure of contraband ganja from the possession of the appellants. P.W.2 has stated that P.W.7 was called with weighing machine and P.W.12 took personal search of all the staff present and did not recover anything from any person. The first gunny bag was weighed and it was found to be 10 Kgs. 710 grams and the second gunny bag was found to be 13 Kgs. 800 grams. After measurement, the contents of gunny bags were mixed together and sample of 50 grams each was collected from each gunny bag. He further stated that the sample packets were properly sealed and the personal seal of P.W.2 was put on the sample packets. 710 grams and the second gunny bag was found to be 13 Kgs. 800 grams. After measurement, the contents of gunny bags were mixed together and sample of 50 grams each was collected from each gunny bag. He further stated that the sample packets were properly sealed and the personal seal of P.W.2 was put on the sample packets. The bulk quantity of ganja contained in the two packets were also sealed with the personal seal of P.W.2 and then the signatures of P.W.12 and other persons present at the spot were obtained on the paper slips which were affixed to the sample packets. P.W.12 has not stated anything relating to taking of personal search of anyone in the chief examination. However, the learned defence counsel without being conscious of the of quoted principle that a counsel cross-examining a witness should first know what not to ask than what to ask, has elicited in the cross-examination of P.W.12 that prior to the search of the appellants, their personal search was taken and nothing was recovered from their possession and then the personal search of three police personnel were also taken and nothing was recovered. P.W.12 without stating what quantity of ganja was found from each of the bag has stated that opening the gunny bags, ganja was found and on weighment, the ganja along with the gunny bags came to 24 Kgs. 655 grams and the net weight of ganja was 24 Kgs. 500 grams. He further stated that P.W.2 collected two sample packets from each gunny bag each containing 50 grams and sealed the same by using wax and brass seal and marked the sample packets as A-1, A-2, B-1 and B-2. He further stated that P.W.2 also sealed the gunny bags containing bulk ganja by using wax and brass seal and thereafter seized the jerry bags containing bulk ganja as well as sample packets under seizure list Ext.4 and signed the seizure list. He further stated that P.W.2 seized the weighing machine and obtained the signatures of the witnesses, appellants and his own signature on the paper slips and kept one paper slip in each sample packets and on the gunny bags containing ganja. He further stated that P.W.2 seized the weighing machine and obtained the signatures of the witnesses, appellants and his own signature on the paper slips and kept one paper slip in each sample packets and on the gunny bags containing ganja. P.W.12 gave certificate to the fact that two packets of seized ganja marked as A and B were weighed, packed, sealed and labeled in his presence as per seizure list so also the sample packets vide A-1, A-2, B-1 and B-2 were prepared. P.W.2 left the seized weighing machine and his personal brass seal under the zima of P.W.7 by executing a zimanama. Thus the evidence of P.W.2 gets corroboration from the evidence of P.W.12. P.W.7 has not supported the prosecution case. No weighment chart was proved during trial. P.W.2 should not have mixed the contents of the two gunny bags together before collecting the sample. Samples should have been collected from the individual gunny bag separately and it should have also been separately marked. What was the content of one bag cannot be known once it is mixed with the content of the other bag and thereafter sample is taken. The statement of P.W.2 regarding collection of sample appears to be a little confusing. Though on the one hand, he states that the contents of gunny bags were mixed together whereas on the other hand, he states that sample of 50 grams each was collected from each gunny bag. It seems that the contents of each gunny bag were homogeneously mixed but separately and then the samples were collected in duplicate from each gunny bag separately. P.W.12 has stated two sample packets were collected from each gunny bag and it was marked as A-1 and A-2 so far as the first bag is concerned and B-1 and B-2 so far as the second bag is concerned. It appears that A-1 and B-1 were sent for chemical examination whereas A-2 and B-2 were kept in Court Malkhana along with the bulk quantity of ganja. The exhibits marked as A-1 and B-1 on chemical examination were found to contain fruiting and flowering tops of cannabis plant (ganja). P.W.2 has stated that his personal brass seal was left in the zima of P.W.7 by executing zimanama (Ext.6). The exhibits marked as A-1 and B-1 on chemical examination were found to contain fruiting and flowering tops of cannabis plant (ganja). P.W.2 has stated that his personal brass seal was left in the zima of P.W.7 by executing zimanama (Ext.6). P.W.12 has also stated that P.W.2 left the seized weighing machine and his personal brass seal under the zima of weighman (P.W.7) on execution of a zimanama. P.W.3 has stated that P.W.2 left the brass seal under the zima of P.W.7 on execution of a zimanama. The zimanama (Ext.6) clearly indicates that the brass seal along with weighing machine were handed over in the zima of P.W.7. Even though P.W.7 has not supported this aspect for which he was declared hostile but since three official witnesses have stated in that respect and nothing has been brought out in the cross-examination to disbelieve such aspect, I find no constraint in accepting the prosecution case that the personal brass seal of P.W.2 was handed over to P.W.7 after the bulk ganja packets and sample packets were sealed. Now coming to the safe custody of the contraband ganja after its seizure, P.W.2 has stated that when the Inspector in charge (P.W.13) came to the spot, he handed over the seized articles, the appellants and all the papers to her. P.W.13 has stated that after she took charge of the seizure list and the seized items from P.W.2, she resealed the seized bulk ganja and sample packets of ganja and after she returned to the police station at 10.00 p.m. on 06.02.2011 along with the appellants and the seized articles, she kept the seized articles at P.S. Malkhana vide Malkhana Register Entry No.1 of 2011 and on 07.02.2011, the appellants were sent to the learned Special Judge, Rayagada along with the seized bulk ganja and sample packets. P.W.13 has further stated that there was a Malkhana at Padmapur police station and S.I. of police K.Ch. Rout was the incharge of P.S. Malkhana but she has not cited K.Ch. Rout as a witness in the charge sheet. She admits that she had not sent the Malkhana register of the police station or even the extract of it to the Court. Suggestion has been given that she has not deposited the seized bulk ganja and sample packets at P.S. Malkhana on 06.02.2011. Rout as a witness in the charge sheet. She admits that she had not sent the Malkhana register of the police station or even the extract of it to the Court. Suggestion has been given that she has not deposited the seized bulk ganja and sample packets at P.S. Malkhana on 06.02.2011. She admits that she has left Column No.4 blank in respect of P.S. property registration number in the final form. The extract of the station diary entry nos.124, 125 dated 06.02.2011 and 142 dated 07.02.2011 of Padmapur police station has been marked as Ext.27. S.D. Entry No.124 reveals that P.W.13 resealed the seized articles after taking charge. S.D. Entry No.125 reveals that P.W.13 took the Malkhana key from S.I. of police K.Ch. Rout and she kept the sealed jerry bags containing bulk quantity of ganja and sample packets in the Malkhana and it was entered in the Malkhana register bearing no.1/2011. S.D. Entry No.142 reveals that after the lock of the Malkhana was opened in presence of constable, the mal items marked as A, A-1, A-2, B, B-1 and B-2 were found intact and it was brought out of the Malkhana. There is virtually no crossexamination on the station diary entries. Learned counsel for the appellants placing reliance in the case of Ramakrushna Sahu (supra) contended that since the Malkhana register or its extract has not been produced in Court, the safe custody of the seized articles after its seizure and before its production in Court is doubtful. In the said case, it has been held as follows:- "Rule 119 of the Orissa Police Rules which deals with malkhana register states, inter alia, that all the articles of which police take charge, shall be entered in detail, with a description of identifying marks on each article, in a register to be kept in P.M. form No. 18 in duplicate, and a receipt shall be obtained whenever any article or property of which the police take charge is made over to the owner or sent to the Court or disposed of in any other way and these receipt shall be numbered serially and filed, and the number of receipts shall be entered in column No. 7. Therefore, it is clear that whenever any article is seized and kept in police malkhana, details thereof should be entered in the malkhana register and while taking it out, the entry should also be made in such register. This would indicate the safe custody of the articles seized during investigation of a case before its production in Court. When the malkhana registers of Jarada police station as well as Baidyanathpur police station have not been proved in the case and the officers in charge of malkhana of the respective police stations have not been examined, it is difficult to believe that the seized articles along with the sample packets were in safe custody before its production in Court for being sent for chemical analysis." In the case in hand, the Malkhana register of Padmapur police station or its extract has neither been seized during investigation nor produced during trial. The person in charge of P.S. Malkhana namely K.Ch. Rout has neither been cited as a charge sheet witness nor examined in Court. Except P.W.13, no other witness has stated about keeping the seized articles in the P.S. Malkhana. Except the extract of station diary entry, there is no other document to show that the seized articles were kept in the P.S. Malkhana. The detailed report (Ext.22) which was submitted on 07.02.2011 by P.W.13 to the Superintendent of Police, Rayagada nowhere indicates that the seized articles were kept in Malkhana before those were sent to Court with the forwarding of the appellants. Neither in Ext.15 nor in Ext.16, it was mentioned that the bulk ganja packets and sample packets were kept in Malkhana. No reason has been assigned by P.W.13 as to why the vital document like Malkhana register or its extract has been withheld from the Court. Thus, it can be said that the prosecution has failed to adduce cogent evidence that the seized bulk ganja packets and the sample packets were in safe custody before its production in Court. The personal brass seal of P.W.2 was handed over to P.W.7 under zimanama (Ext.6) but the order sheet of the Court indicates that the said seal was not produced in Court either at the time of production of the seized contraband ganja and the sample packets at the first instance or at the time of trial. The personal brass seal of P.W.2 was handed over to P.W.7 under zimanama (Ext.6) but the order sheet of the Court indicates that the said seal was not produced in Court either at the time of production of the seized contraband ganja and the sample packets at the first instance or at the time of trial. Handing over the brass seal to an independent, reliable and respectable person and asking him to produce it before the Court at the time of production of the seized articles in Court for verification are not the empty formalities or rituals but is a necessity to eliminate the chance of tampering with the seized articles while in police custody. P.W.2 has stated that the signatures of P.W.12 and other persons present at the spot were obtained on the paper slip which was affixed on the sample packet A-1 which was collected from one bag. He has also stated that the other sample packet was collected from the second bag and the signatures of P.W.12 and others were taken on the paper slip which was affixed on such sample packet. P.W.12 however stated that paper slip containing the signatures of the witnesses, appellants, P.W.2 and his own signature was kept in each sample packet and also in the gunny bags containing ganja. During examination of P.W.12, one sample packet marked A-2 was opened in Court in presence of the witnesses and it was found that no paper slip containing the signature of any person was inside the alleged sample packet. No such paper slip was found in exhibits A-1 and B-1 sent for chemical analysis. Therefore, the so-called paper slips containing the signatures of the witnesses was neither there on the sample packets nor found inside it which is a suspicious feature. Though Ext.C which contained specimen seal impression in a sheet of paper was sent along with sample packets Ext.A-1 and Ext.B-1 for chemical examination but none has stated Ext.C was prepared from the personal brass seal of P.W.2 which was handed over to P.W.7. This missing link weakens the prosecution case and tilts the balance in favour of the appellants. 13. Coming to the non-compliance of section 57 of the N.D.P.S. Act, it was argued by the learned counsel for the appellants that there is no receipt or acknowledgement of the detailed report Ext.22 in the office of the Superintendent of Police, Rayagada. This missing link weakens the prosecution case and tilts the balance in favour of the appellants. 13. Coming to the non-compliance of section 57 of the N.D.P.S. Act, it was argued by the learned counsel for the appellants that there is no receipt or acknowledgement of the detailed report Ext.22 in the office of the Superintendent of Police, Rayagada. P.W.13, the I.O. admits that there is no receipt or acknowledgement in token of the fact that the detailed report was received by the office of Superintendent of Police, Rayagada. Though P.W.4, P.W.11 as well as P.W.13 have stated that the detailed report was seized from the steno of Superintendent of Police namely Sisir Kumar Swain under seizure list Ext.10 but P.W.13 has stated that he has not examined steno Sisir Kumar Swain and he has also not cited him as a witness in a charge sheet. In case of Gurbax Singh (supra), it is held that it is true that the provision under section 57 of the N.D.P.S. Act is directory and violation of such provision would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore the provision and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In case of Balbir Singh (supra), it is held that if there is non-compliance of the provision under section 57 of the N.D.P.S. Act or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. In the case of Ghadua Muduli (supra), it is held that when the original report has not been produced and no competent witness from the S.P. office has been examined and no corresponding documents from the office of S.P. has been proved relating to receipt of the full report under section 57 of the N.D.P.S. Act, it is very difficult to accept that there is substantial compliance of such provision. Therefore, in absence of any documentary evidence like receipt or acknowledgement of the detailed report in the S.P.'s office and non-examination of the steno namely Sisir Kumar Swain from whom such report was seized, it cannot be said that the prosecution has proved the substantial compliance of the provision under section 57 of the N.D.P.S. Act. 14. It is contended by the learned counsel for the appellants that since the ownership of the motorcycle in question has not been established by the prosecution and it is doubtful as to where from the motorcycle came into the possession of the appellants, benefit of doubt should be given to the appellants. Reliance was placed in the case of Makhan Singh (supra) wherein the Hon'ble Supreme Court analysing the facts came to hold that the Courts below erred in attributing to the appellants the onus to prove that wherefrom fitter-rehra (a vehicle) had come, especially when ownership/possession of fitter-rehra has not been proved by the prosecution. There cannot be any settled principle that wherever the prosecution has failed to establish the ownership of a vehicle in which the accused was carrying contraband articles and how the vehicle came into his possession, benefit of doubt should be extended in his favour. An accused may commit theft of a vehicle and thereafter changing its colour and tampering with its registration number, engine and chassis number may use it for committing the offence in the event of which it would be difficult for the prosecution to establish the ownership of the vehicle. Therefore, possession of the vehicle with the accused at the time of commission of crime is an important aspect which is to be carefully considered by the Court. 15. Law is well settled that the prosecution has to prove that the articles which were produced before the Court were the very articles which were seized and the entire path has to be proved by adducing reliable, cogent, unimpeachable and trustworthy evidence. Since the punishment is stringent in nature, any deviation from it would create suspicion which would result in giving benefit of doubt to the accused. Since the punishment is stringent in nature, any deviation from it would create suspicion which would result in giving benefit of doubt to the accused. In view of the foregoing discussions, when the confessional statements of the appellants before P.W.2 and P.W.12 cannot be acted upon, the safe custody of the seized articles before its production in Court is doubtful, the P.S. Malkhana register or its extract has not been produced during trial in support of keeping the seized articles in safe custody, the personal brass seal of P.W.2 with which the seized articles were sealed was not produced in Court at the time of production of the seized articles and even during trial and there is no satisfactory compliance of the provision of section 57 of the N.D.P.S. Act, it cannot be said that the prosecution has successfully established the charge under section 20(b)(ii)(C) of the N.D.P.S. Act against the appellants beyond all reasonable doubt. Therefore, the impugned judgment and order of conviction of the appellants under section 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed thereunder is not sustainable in the eye of law. Accordingly, the Criminal Appeal is allowed. The appellants are acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellants who are in jail custody shall be set at liberty forthwith if their detention is not required in any other case. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.