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2021 DIGILAW 118 (ORI)

Sibaram Swain v. State of Orissa

2021-03-15

S.K.SAHOO

body2021
JUDGMENT : S.K. SAHOO, J. The appellants Sibaram Swain (Crl. A. No.580 of 2013) and Ratnakar Swain (Crl. A. No.44 of 2014) faced trial in the Court of learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2(a) C.C. No.11 of 2011(N) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter 'N.D.P.S. Act'). They were found guilty by the learned trial Court of the offence charged and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo further rigorous imprisonment for a period of one year vide impugned judgment and order dated 27.11.2013. Since both the criminal appeals arise out of one common judgment and order of conviction, with the consent of learned counsel for the respective parties, those were heard analogously and disposed of by this common judgment. 2. The prosecution case, in short, is that Sri Sarat Chandra Bhanja (P.W.3), Sub-Inspector of Excise, E.I. & E.B., Unit-II (S.D.), Berhampur received a credible telephonic information on 04.07.2011 at about 6.00 a.m. about transportation of Ganja in an auto rickshaw near Ambapua and Gopalpur junction area and on getting such information, he reduced the information into writing and informed his superior authority i.e. the I.I.C. of Excise Sri S.P. Gantayat vide Ext.7 and as per the direction of Sri Gantayat, P.W.3 proceeded to the spot to verify the correctness of the information. Four excise constables including P.W.2 and one A.S.I. of Excise also accompanied him. The prosecution case further reveals that near Gopalpur junction area, when they were performing patrolling duty, around 11.00 a.m. an auto rickshaw bearing registration no.OR-07N-1450 was found coming towards Berhampur town from Ambapua side. On suspicion, the said auto rickshaw was detained in which one person was found on the rear seat and another person was found driving the vehicle. On being asked, the driver disclosed his name as Sibaram Swain (appellant in Crl. A. No.580 of 2013) whereas the other person sitting on the rear seat gave his identity as Ratnakar Swain (appellant in Crl. A. No.44 of 2014). On being asked, the driver disclosed his name as Sibaram Swain (appellant in Crl. A. No.580 of 2013) whereas the other person sitting on the rear seat gave his identity as Ratnakar Swain (appellant in Crl. A. No.44 of 2014). It is the further case of the prosecution that the auto rickshaw being detained was found to be carrying four airbags on the rear seat, which were by the side of the appellant Ratnakar Swain and one jerry basta was found on the foot rest of the rear seat. Both the appellants, on being asked by P.W.3 about the contents of airbags and jerry basta, kept mum. On suspicion, P.W.3 disclosed his intention to search the airbags and jerry basta. P.W.1, an independent witness was then called to remain present during the proposed search and seizure. It is the further case of the prosecution that the appellants were then asked by P.W.3 as to whether they wanted the search to be conducted in presence of an Executive Magistrate or Gazetted Officer. The appellants opted to be searched by P.W.3 and such options were given in writing vide Exts.3/1 and 4/1. Thereafter, on observing other formalities such as giving of personal search etc. to the appellants and others, when no incriminating item was found from the possession of P.W.3, the airbags and jerry basta were searched by bringing those from the auto rickshaw. All the four airbags and jerry basta being opened were found to be containing Ganja. P.W.3 conducted preliminary tests such as by rubbing on the palm and burning a little portion out of the contents found inside the airbags and jerry basta and from his experience, he could ascertain that it was ganja. Weighment being made, four airbags were found to contain 14 Kgs., 16 Kgs., 17 Kgs. and 13 Kgs. of ganja whereas the jerry basta was found to be containing 10 Kgs. of ganja. The airbags and basta were then sealed by using paper slips and the brass seal of P.W.3 obtaining the signatures of others including the appellants. The said brass seal was then given in zima of P.W.2 under proper zimanama (Ext.5/1). P.W.3 next prepared the seizure list (Ext. 1/1) to that effect. The appellants being arrested were directly produced before the Court of learned Special Judge, Berhampur on the same day. The said brass seal was then given in zima of P.W.2 under proper zimanama (Ext.5/1). P.W.3 next prepared the seizure list (Ext. 1/1) to that effect. The appellants being arrested were directly produced before the Court of learned Special Judge, Berhampur on the same day. P.W.3 made a prayer before the Court for collection of samples from the airbags and jerry basta and for their onward dispatch to DECTL, Berhampur at Chatrapur, which being allowed, learned S.D.J.M., Berhampur collected samples from airbags and jerry basta and those were forwarded for chemical examination. The report came to the same effect as was the finding of preliminary test of P.W.3 so far as the contraband items are concerned. P.W.3 also ascertained the ownership of the vehicle standing to be in the name of the appellant Sibaram Swain. P.W.3 thereafter submitted a preliminary report describing the details of such seizure and other follow up action in that regard. Thereafter, on completion of investigation, P.W.3 submitted prosecution report against the appellants to stand their trial. 3. The appellants on being charged under section 20(b)(ii)(C) of the N.D.P.S. Act for unlawful possession of 70 Kgs. of contraband ganja, refuted the charge, pleaded not guilty and claimed to be tried. 4. During course of trial, in order to prove its case, the prosecution examined three witnesses. P.W.1 Kalu Charan Sethi is an independent witness to the seizure who was a betel shop owner, did not support the prosecution case, rather he stated that on being asked by some excise officials, he put his signatures on some written papers ten to fifteen in numbers and proved Exts.1 to 6 as his signatures. P.W.2 Antaryami Sahu was the Constable of Excise attached to E.I. & E.B., Southern Division, Berhampur who accompanied P.W.3 for patrolling duty and stated about search and seizure of ganja from the possession of the appellants. On being asked by P.W.3, he called P.W.1 in whose presence the airbags and basta were searched. He is also a witness to the seizure of bags containing ganja and other contemporaneous documents such as zimanama. P.W.3 Sarat Chandra Bhanja was the S.I. of Excise, E.I. & E.B., Berhampur who not only detained the auto rickshaw, seized the contraband ganja, produced the seized ganja and the appellants in Court after their arrest but on completion of investigation, submitted the prosecution report. 5. The prosecution exhibited eight documents. P.W.3 Sarat Chandra Bhanja was the S.I. of Excise, E.I. & E.B., Berhampur who not only detained the auto rickshaw, seized the contraband ganja, produced the seized ganja and the appellants in Court after their arrest but on completion of investigation, submitted the prosecution report. 5. The prosecution exhibited eight documents. Ext.1/1 is the seizure list, Ext.2/1 is the spot map, Ext.3/1 is the option given to the appellant Sibaram Swain, Ext.4/1 is the option given to the appellant Ratnakar Swain, Ext.5/1 is the zimanama, Ext.6/1 is the preliminary test report, Ext.7 is the intimation given to I.I.C. and Ext.8 is the chemical examination report. The prosecution proved twelve material objects. M.O.I is the brass seal, M.Os.II to VI are the packets containing second part of sample, M.O.VII is the packet containing residue ganja, M.Os.VIII to XI are the airbags containing residue ganja and M.O.XII is the jerry basta. 6. The defence plea of the appellant Ratnakar Swain was that at the relevant point of time, he had alighted from a bus near the first gate, when the Excise Constable (P.W.2) called him and brought him to the Excise Office in a vehicle, where his signatures were obtained in different documents and thereafter he was falsely implicated in the case. The defence plea of the appellant Sibaram Swain was that when he was coming driving his auto rickshaw, the appellant Ratnakar Swain requested him to take him to Berhampur and sat on the rear seat. It was his further plea that he had no connection with the airbags and basta and he was also not aware about its contents. The defence exhibited the arrest memo of the appellant Ratnakar Swain as Ext.A. 7. The learned trial Court after assessing the evidence on record has been pleased to hold that the prosecution is found to have established by clear and cogent evidence that the auto rickshaw bearing registration no. OR-07N-1450 was detained at the relevant place and time. It was further held that the evidence of P.Ws.2 and 3 cannot be disbelieved even without P.W.1's supporting evidence with regard to the fact that the appellant Ratnakar Swain was coming in the auto rickshaw sitting on the rear seat. OR-07N-1450 was detained at the relevant place and time. It was further held that the evidence of P.Ws.2 and 3 cannot be disbelieved even without P.W.1's supporting evidence with regard to the fact that the appellant Ratnakar Swain was coming in the auto rickshaw sitting on the rear seat. While dealing with the provision of section 35 of the N.D.P.S. Act regarding culpable mental state of the appellants, the learned trial Court held that the prosecution has established the presence of the appellants in the auto rickshaw followed by recovery of M.Os. VII to XII beyond reasonable doubt and therefore, the presumption as to the culpable mental state of both the appellants got raised pushing the onus on them to prove the non-existence of such mental state for the same offence by proving their absence of intention, motive, knowledge of a fact and belief in or having any reason to believe as per the required mode with the standard of proof beyond a reasonable doubt. With regard to non-compliance of the provision of section 50 of the N.D.P.S. Act, the learned trial Court has held that for search of vehicle, this provision did not require mandatory compliance in view of the decision of the Hon'ble Supreme Court in the case of State of H.P. Vs. Pawan Kumar reported in (2005) 4 SCC 350 . It was further held that there was hardly any time lag between seizure, production and also chemical examination and considering the quantity of contraband seized in the case, the possibility of planting looks an impossibility. It was further held that the samples were taken from what were seized and were also having been chemically examined and accordingly, the appellants were found guilty of the offence charged. 8. Mr. V. Narasingh, learned counsel appearing for the appellant Sibaram Swain in Crl. A. No.580 of 2013 who was also appointed as Amicus Curiae in Crl. A. No.44 of 2014 for the appellant Ratnakar Swain, placed the impugned judgment, the evidence of the witnesses, the exhibited documents and contended that it is the specific plea of the appellant Sibaram Swain that he was the auto rickshaw driver and he was taking the appellant Ratnakar Swain to Berhampur on rental basis who was sitting on the back seat. The appellant further pleaded that he had got no connection with the air bags as well as jerry bag found in the auto rickshaw and he was not even aware of its contents. He argued that the plea taken by appellant Sibaram Swain gets corroboration from the evidence of the prosecution witnesses who stated that on being asked about the contents of the air bags and jerry basta, the appellant Sibaram Swain told that he had no knowledge about its contents as those were kept by the appellant Ratnakar Swain and he was carrying appellant Ratnakar Swain as well as the bags on payment of hire charges. He further argued that there is no material on record about any previous acquaintance between the two appellants or any such contract between them to carry the bags with an exorbitant price taking risk or that the appellant Sibaram Swain knowingly permitted his auto rickshaw to be used as a conveyance for commission of the offence. He further argued that the conduct of the appellant Sibaram Swain in not trying to flee away when he was asked to stop the auto rickshaw is a very relevant factor under section 8 of the Evidence Act and it shows that he was not aware of the contents of the bags and also absence of culpable mental state. He further argued that the learned trial Court has committed certain error of record which has resulted in perverse finding and therefore, the appellant Sibaram Swain should be given benefit of doubt. Arguing for the appellant Ratnakar Swain, Mr. V. Narasingh, learned Amicus Curiae urged that there is statutory infraction of the provision under section 42 of the N.D.P.S. Act which is mandatory in nature so also the provision under section 57 of the N.D.P.S. Act which though directory in nature but cannot be totally ignored by the Investigating Officer. Such failure, according to the learned counsel will have a bearing on the appreciation of evidence regarding arrest of the accused and seizure of the articles. Such failure, according to the learned counsel will have a bearing on the appreciation of evidence regarding arrest of the accused and seizure of the articles. The brass seal given in the zima of P.W.2 was not produced at the time of production of seized ganja in Court for drawal of sample for comparison and the tampering of seal cannot be ruled out and since P.W.3 who detected and seized contraband ganja is himself the investigating officer, who on completion of investigation submitted the prosecution report, serious prejudice has been caused to the appellants and therefore, benefit of doubt should also be extended in favour of the appellant Ratnakar Swain. He placed reliance on the decisions of the Hon'ble Supreme Court in the cases of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat reported in (2000) 18 Orissa Criminal Reports (SC) 512, Bhola Singh Vs. State of Punjab reported in 2011 (I) Orissa Law Reviews (SC) 1043, Manoj Kumar Panigrahi Vs. State of Orissa reported in (2019) 75 Orissa Criminal Reports 761 and Herasha Majhi Vs. State of Odisha reported in (2019) 76 Orissa Criminal Reports 728. 9. Mr. P.K. Mohanty, learned Additional Standing Counsel appearing for the State on the other hand supported the impugned judgment and contended that appellant Sibaram Swain has failed to prove that he had no such culpable mental state even though he was carrying the airbags and jerry basta containing ganja in his auto rickshaw. He argued that since the confessional statement of an accused before the Excise Officials is inadmissible in view of the provisions of Section 25 of the Evidence Act, the said statement made cannot be utilised in support of defence plea. The manner in which the ganja was being transported and the presence of both the appellants inside the auto rickshaw at the time of detention and the prevaricating statements made by the appellants after their arrest relating to the ganja bags and also in their accused statements proves the offence. Placing reliance on the ratio laid down in the cases of Amar @ Amarnath Nayak Vs. State of Orissa reported in 2018 (I) Orissa Law Reviews 562, Surinder Kumar Vs. State of Punjab reported in (2020) 2 SCC 563 , Sajan Abraham Vs. State of Kerala reported in (2001) 6 SCC 692 and Karnail Singh Vs. Placing reliance on the ratio laid down in the cases of Amar @ Amarnath Nayak Vs. State of Orissa reported in 2018 (I) Orissa Law Reviews 562, Surinder Kumar Vs. State of Punjab reported in (2020) 2 SCC 563 , Sajan Abraham Vs. State of Kerala reported in (2001) 6 SCC 692 and Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 , he argued that the appeals should be dismissed. 10. Let me now first deal with the contentions raised by the learned counsel for the respective parties so far as the appellant Sibaram Swain is concerned. Out of three witnesses examined on behalf of the prosecution, P.W.1 has not supported the prosecution case and P.Ws.2 and 3, who are the official witnesses have stated about the detention of the auto rickshaw, search and seizure of contraband ganja from it. Law is well settled as held in the case of Surinder Kumar (supra) that the evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. P.W.2 has stated that when they detained the auto rickshaw while performing their patrolling duty, the appellant Sibaram Swain was driving the vehicle and on being asked, he disclosed his name. Appellant Ratnakar Swain was sitting on the rear seat and he also disclosed his name. When they noticed four numbers of air bags and one jerry bag lying on the backside of the rear seat and asked about the contents of those bags, appellant Sibaram Swain told them that he had no knowledge about the contents of the bags as those bags were kept by appellant Ratnakar Swain and he was carrying him as well as the bags on payment of hire charges. When the appellant Ratnakar Swain was asked about the contents of those bags, he admitted that the bags were kept by him in the auto rickshaw and that he was travelling on payment of hire charges but he also maintained silent with regard to the contents of those bags. In the cross-examination, P.W.2 further stated that appellant Sibaram Swain produced relevant documents concerning the auto rickshaw and appellant Ratnakar Swain disclosed that he was carrying the bags in the auto rickshaw having hired it for the purpose. In the cross-examination, P.W.2 further stated that appellant Sibaram Swain produced relevant documents concerning the auto rickshaw and appellant Ratnakar Swain disclosed that he was carrying the bags in the auto rickshaw having hired it for the purpose. P.W.2 further stated that no sooner did they give signal to the driver of the auto rickshaw i.e. appellant Sibaram Swain, he stopped the vehicle. P.W.3 stated that when he noticed the auto rickshaw coming towards Berhampur town from Ambapua side during patrolling, on suspicion, he detained the same and found that the appellant Sibaram Swain was driving the auto rickshaw and appellant Ratnakar Swain was sitting on the rear seat of auto rickshaw keeping four air bags by his side and one jerry basta near his legs. He further stated that when he asked about the contents of the air bags and the jerry basta to both the appellants, they remained silent. In the cross-examination, P.W.3 stated that the auto rickshaw is a public carrier one and he had verified the R.C. book and appellant Ratnakar Swain had claimed the ownership of the air bags and jerry basta before him. He further stated that he had not directed his investigation to find out if there was any relationship between the two appellants and he had also not directed his investigation as regards the starting point of the auto rickshaw. At this juncture, the accused statement of the appellant Sibaram Swain needs consideration. The appellant pleaded that when he was coming driving his auto rickshaw, appellant Ratnakar Swain requested him to take him to Berhampur and sat on the rear seat. It was further pleaded that he had no connection with the air bags and basta and he was also not aware about its contents. The appellant pleaded that when he was coming driving his auto rickshaw, appellant Ratnakar Swain requested him to take him to Berhampur and sat on the rear seat. It was further pleaded that he had no connection with the air bags and basta and he was also not aware about its contents. Thus, the cumulative effect of the evidence of the P.Ws.2 and 3 as well as the defence plea of the appellant Sibaram Swain is as follows:- (i) The appellant Sibaram Swain was coming driving the auto rickshaw from Ambapua side and going towards Berhampur town when it was detained by the excise staff; (ii) No sooner P.W.3 and his team gave signal to the driver of the auto rickshaw to stop the vehicle, the appellant Sibaram Swain stopped the vehicle; (iii) Appellant Sibaram Swain produced the documents of the auto rickshaw and told that he was carrying appellant Ratnakar Swain as well as the bags on payment of hire charges and that he had no knowledge about the contents of the bags which were kept by the appellant Ratnakar Swain; (iv) Appellant Ratnakar Swain claimed ownership of the air bags and jerry basta before the excise officials at the spot. At this juncture, three sections of the N.D.P.S. Act i.e. sections 25, 35 and 54 need consideration. The aforesaid three sections are extracted herein below:- 25. Punishment for allowing premises, etc., to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. 35. Presumption of culpable mental state.- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 54. Presumption from possession of illicit articles.- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of- (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. The basic ingredients of section 25 of the N.D.P.S. Act thus appear to be as follows:- (i) The accused must be either the owner, or occupier or he must have the control or use of the house, room, enclosure, space, place, animal or conveyance; (ii) He must have knowingly permitted such house, conveyance etc. to be used for the commission of an offence punishable under any provision of N.D.P.S. Act by any other person. Mere ownership of the vehicle in which transportation of contraband articles was found is by itself not an offence. The words knowingly permits' are significant. The expression knowingly' has to be given due weight. As per the Chambers Dictionary, 12th Edition, knowingly' means in a knowing manner, consciously, intentionally. In the case of Raghunath Singh Vs. State of Madhya Pradesh reported in 1967 Maharashtra Law Journal 575, a three-Judge Bench of the Hon'ble Supreme Court has held that the words knowing' or knowingly' are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. In the case of Raghunath Singh Vs. State of Madhya Pradesh reported in 1967 Maharashtra Law Journal 575, a three-Judge Bench of the Hon'ble Supreme Court has held that the words knowing' or knowingly' are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established. The words, knowing' or knowingly' are obviously more forceful than the words Ahas reason to believe', because those words insist on a greater degree of certitude in the mind of the person who is set to know or to do the act knowingly. It is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed. When these words are used, something more than suspicion or reason to believe is required. Thus, it is for the prosecution to establish that with the owner's or driver's knowledge, the vehicle was used for commission of an offence under the N.D.P.S. Act. However, once the prosecution establishes the ownership as well as grant of permission by the accused to use his house or vehicle etc. by another person for commission of any offence under the N.D.P.S. Act, the burden shifts to the accused and he has to give rebuttal evidence to disprove such aspects. It is not always expected of an owner of a commercial vehicle to know what luggage the passenger of his vehicle was carrying with him/her particularly when the owner has engaged a driver for running of the vehicle. At best, the owner cautions his driver not to carry any suspected person or suspected article in the vehicle. Similarly, it would be too much to expect of a driver of the vehicle to enquire into details regarding the contents of the luggage carried by the passenger as he is mainly concerned with the hire charges. Therefore, there is possibility that without knowing the contents of the luggage, the owner or driver of the vehicle may permit the passenger to carry the luggage in which contraband articles are secretly kept and in such a scenario, it would not be proper and justified to hold the owner or the driver guilty of commission of offence under the N.D.P.S. Act merely for the illegal act of the passenger without any material to show that it was knowingly permitted. It would depend on the nature of evidence adduced in the case to case basis, the facts and circumstances of the case, the nature and quantity of contraband articles transported, the immediate conduct of the driver and the passenger of the vehicle at the time when the vehicle was intercepted or asked to be stopped. The statements made by the driver and the passenger relating to the contraband articles immediately after the detention was made, how and when the contract was made to carry the passenger with luggage, the previous acquaintance if any between the owner/driver of the vehicle with the passenger and the amount of hire charges settled for carrying the luggage are certain relevant factors for consideration. It would be a travesty of justice to prosecute the owner or driver of a vehicle and to hold them guilty for the act committed by a passenger travelling in the vehicle who was found to be carrying contraband articles in his luggage without even any semblance of material that the vehicle was knowingly permitted to be used for the commission of the offence. Sections 35 and 54 of the N.D.P.S. Act raise presumptions with regard to the culpable mental state on the part of the accused and also place the burden of proof in this behalf on the accused. However, the presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. If the prosecution fails to prove the fundamental facts so as to attract the rigours of section 35 of the N.D.P.S. Act, the actus reus cannot be said to have been established. It would be profitable to refer to a few cases and appreciate the ratio laid down in it. In the case of Abdul Rashid Ibrahim Mansuri (supra), while analysing the provision under section 35 of the N.D.P.S. Act, the Hon'ble Supreme Court held as follows:- "21. No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in Sub-section (2) as "beyond a reasonable doubt”. No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in Sub-section (2) as "beyond a reasonable doubt”. If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt dispelled. Even so, it is for the accused to dispel any doubt in that regard. 22. The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence." In the case of Bhola Singh (supra), the Hon'ble Supreme Court held as follows:- "While dealing with the question of possession in terms of Section 54 of the Act and the presumption raised under Section 35, this Court in Noor Aga Vs. State of Punjab and Anr. State of Punjab and Anr. (2008) 16 SCC 417 while upholding the constitutional validity of Section 35 observed that as this Section imposed a heavy reverse burden on an accused, the condition for the applicability of this and other related sections would have to be spelt out on facts and it was only after the prosecution had discharged the initial burden to prove the foundational facts that Section 35 would come into play. Applying the facts of the present case to the cited one, it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word "knowingly", and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities. We are of the opinion that in the absence of any evidence with regard to the mental state of the appellant, no presumption under Section 35 can be drawn. The only evidence which the prosecution seeks to rely on is the appellant's conduct in giving his residential address in Rajasthan although he was a resident of Fatehabad in Haryana while registering the offending truck cannot by any stretch of imagination fasten him, with the knowledge of its misuse by the driver and others." In the case of Amar @ Amarnath Nayak (supra), this Court has been pleased to hold as follows:- "Section 35 of the N.D.P.S. Act deals with presumption of 'culpable mental state' and it provides that in any prosecution for an offence under N.D.P.S. Act which requires a 'culpable mental state' of the accused, the Court shall presume the existence of such mental state. The 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. However, it is for the defence to prove that the accused had no such mental state with respect to the act charged as an offence in that prosecution. The 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. However, it is for the defence to prove that the accused had no such mental state with respect to the act charged as an offence in that prosecution. The accused is to prove that he was not in conscious possession of the contraband if it is proved by the prosecution that he was in possession thereof and he is also to prove that he had no such mental state with respect to the act charged as an offence. xxx xxx xxx Law is well settled that the prosecution has to prove its case beyond all reasonable doubt whereas the accused can prove its defence by preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstance upon which the accused relies. Section 106 of the Evidence Act clearly enjoins that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 35(2) of the N.D.P.S. Act requires the accused to prove beyond a reasonable doubt that he had no culpable mental state with respect to the act charged. The general principle regarding the discharge of burden by preponderance of probability is not applicable. The burden can be discharged by an accused adducing cogent and reliable evidence which must appear to be believable or by bringing out answers from the prosecution witnesses or showing circumstances which might lead the Court to draw a different inference." The Hon'ble Supreme Court in the case of Hanif Khan Vs. Central Bureau of Narcotics reported in 2019 SCC OnLine SC 1810 held as follows:- "8....The prosecution under the N.D.P.S. Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. In Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417 , it was observed as follows: "58. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. In Noor Aga Vs. State of Punjab reported in (2008) 16 SCC 417 , it was observed as follows: "58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused and also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt' but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established." 9. Because there is a reverse burden of proof, the prosecution shall be put to a stricter test for compliance with statutory provisions. If at any stage, the accused is able to create a reasonable doubt, as a part of his defence, to rebut the presumption of his guilt, the benefit will naturally have to go to him." The Hon'ble Supreme Court in the case of Mohan Lal Vs. The State of Punjab reported in 2018 (II) Orissa Law Reviews 485 held as follows:- "10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the N.D.P.S. Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the N.D.P.S. Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities." In the case of Naresh Kumar Vs. State of Himachal Pradesh reported in (2017) 15 SCC 684 , it is held as follows:- "9. The presumption against the accused of culpability under Section 35 and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability." In the case of Union of India (UOI) Vs. Sanjeev V. Deshpande reported in 2014 (II) Orissa Law Reviews (SC) 707, it is held as follows:- "Section 35 stipulates that in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the Court trying offence is mandated to assume the existence of such mental state, though it is open for the accused to prove that he had no such mental state." In the case of Dehal Singh Vs. State of Himachal Pradesh reported in (2010) 9 SCC 85 , it is held as follows:- "Section 35 of the Act recognizes that once possession is established, the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. State of Himachal Pradesh reported in (2010) 9 SCC 85 , it is held as follows:- "Section 35 of the Act recognizes that once possession is established, the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Further the person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is further available under Section 54 of the Act, which provides that accused may be presumed to have committed the offence unless he accounts for satisfactorily the possession of contraband." In the case of Madan Lal and Anr. Vs. State of H.P. reported in (2003) 7 SCC 465, wherein it has been held as follows:- "22. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors., 1979 Cri.L.J. 1390, to work out a completely logical and precise definition of possession' uniformly applicable to all situations in the context of all statutes. 23. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. The State of M.P., 1972 CriLJ 1187 possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. 25. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561). In an interesting case, it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See: Sullivan v. Earl of Caithness, 1976 (1) All ER 844). 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." Mr. V. Narasingh, learned counsel appearing for the appellants placed paragraph 11 of the impugned judgment and submitted that the observation made therein that the evidence of P.W.3 that the appellant Ratnakar Swain claimed the bags to be of his own, has not been corroborated by P.W.2 is an error of record inasmuch as P.W.2 has specifically stated in cross-examination that the appellant Ratnakar Swain disclosed before him that he was carrying the bags in the said auto rickshaw having hired it for the purpose. I find substantial force in the argument of the learned counsel for the appellants that the learned trial Court has committed an error of record in the aforesaid aspect. The learned counsel for the appellants further drew the attention of the Court to the observation made in paragraph 11 of the impugned judgment, wherein it has been observed that in the present case when all proved and attending circumstances are cumulatively viewed, provision of section 43(b) of the N.D.P.S. Act also got attracted to say that one was the companion of another or in company and that also leads to drawal of presumption under section 54 of the N.D.P.S. Act, which has not been satisfactorily accounted for. Section 43(b) of the N.D.P.S. Act states that any officer of any of the departments mentioned in section 42 of the said Act, can detain and search any person whom he has reason to believe to have committed an offence punishable under the said Act and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Merely because a person is arrested being in the company of another person against whom reasonable belief arises to have committed the offence under the N.D.P.S. Act, that would not ipso facto prove his culpable mental state as required under section 35 of the N.D.P.S. Act particularly in view of the definition of the term Culpable mental state' as appearing in the explanation to section 35(1) of the said Act. Section 54 of the N.D.P.S. Act no doubt raises presumption from possession of illicit articles, but again it states that such presumption can be raised only when the person in possession fails to account such possession satisfactorily. Adverting to the contention raised by the learned counsel for the State that confessional statement of appellant Sibaram Swain made to Excise Officials at the spot cannot be utilised in support of defence plea, few decisions would be suffice to deal with the same. The majority view in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2020) 80 Orissa Criminal Reports (SC) 641 (Para 155) is that the officers who are invested with powers under Section 53 of the N.D.P.S. Act are police officers' within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an Accused under the N.D.P.S. Act. In the case of Madaiah Vs. State reported in 1992 Criminal Law Journal 502, a Division Bench of Madras High Court held as follows:- "8. Reverting now to the argument of learned counsel, it is pointed out that neither u/s. 25 nor u/s. 26 of the Evidence Act, there is any prohibition for the accused to make use of his own confession or to rely upon the said confession for his benefit although the sections make it very evident that a confession made to a Police Officer by the accused in detention if it is u/s. 25, it is totally inadmissible, whereas u/s. 26, it is admissible provided it is made before a Magistrate. In either event, it is pointed out and in our opinion rightly too, the controversy herein is not covered either by S. 25 or 26 of the Act and there is no other provision occurring on this point. In either event, it is pointed out and in our opinion rightly too, the controversy herein is not covered either by S. 25 or 26 of the Act and there is no other provision occurring on this point. In reality we think, there is no bar in law precluding the accused from relying upon his own confession for his purposes. That such is certainly the position as the provisions of the Evidence Act stand is not disputed by the learned Public Prosecutor. 9. It is relevant at this stage to point out that u/s. 8 of the Evidence Act, the conduct of the accused subsequent to the occurrence is very relevant. Taking that aspect of the matter into consideration, the fact of the accused going straight to the Police Station and making a statement explaining his conduct in that behalf would be clearly admissible but for the fact that his conduct is demonstrated by the statement of the accused admitting the commission of a crime. 10. Be that as it may, there is nothing in the Evidence Act that precluded an accused from relying upon his confession for his own purpose. This advantage, no doubt, the prosecution does not have because of the total ban enacted u/s. 25 in making use of the confession in any manner barring the limited user, the prosecution can make of it u/s. 26 provided the confession is made in the presence of a Magistrate. The accused is not untrammeled by either of these sections in case he desires to rely on the confession. This appears to be the considered view of the Lahore and the Madras High Courts in Lal Khan's case (1949 Cri LJ 977) and in In Re Mottai Thevar's case (1952 Cri LJ 1210). The dictum of the Lahore High Court in Lal Khan's case (1949 Cri LJ 977) is as follows: "Where an accused person himself makes a statement which is taken down as a first information report, the statement is inadmissible against the accused as it amounts to a confession to a Police Officer. But there is no bar to using such a confession in favour of the accused." 11. Although this decision was not referred to by the later decision of the Madras High Court in Mottai Thevar's case : AIR 1952 Mad 586 , the ratio therein is no different. But there is no bar to using such a confession in favour of the accused." 11. Although this decision was not referred to by the later decision of the Madras High Court in Mottai Thevar's case : AIR 1952 Mad 586 , the ratio therein is no different. The Bench consisting of their Lordships Mack and Somasundaram JJ. indeed a very eminent one laid down that : "Where the accused immediately after killing the deceased goes to the police station and makes a clean breast of the offence, and the statement forms the first information of the offence, though the statement cannot be used against the accused, S. 25, Evidence Act does not bar its use in his favour.” Of course there was some difference between the two learned judges touching the need to retain or abrogate Ss. 25, 26 and 27 of the Evidence Act. The brief highlights of the stand taken by Mack J. in that behalf is in para 8 of the decision whereas the contrary stand taken by Somasundaram, J. is at para 9. Notwithstanding the ideological difference in the stands taken by the two judges, touching the amendment and repeal of Ss. 25, 26 and 27 of the Evidence Act, both fully agreed that the confession made to a Police Officer in custody while it could be used against the accused u/S. 27 of the Act, the ban aforesaid, however, did not preclude the accused from making use of the confession itself. Para 11 of the judgment which features the brief reasoning of Somasundaram, J. makes that aspect of the matter very clear. His Lordship observes: “If it is to be used against the accused, then S. 25 is a bar and it cannot be admitted but it is to be used in favour of the accused, I do not think that S. 25 is a bar and the confession can well be admitted.” (underline is by me to add emphasis). A Division Bench of Madras High Court in the case of Sudalaimani Vs. State reported in 2014-2-LW(Crl) 372 : 2014 (4) CTC 593 , while distinguishing the ratio laid down in Mottai Thevar's case (supra), held that if a confession is given to the police officer before the start of investigation, then it can be used in favour of the accused as held in Mottai Thevar's case. State reported in 2014-2-LW(Crl) 372 : 2014 (4) CTC 593 , while distinguishing the ratio laid down in Mottai Thevar's case (supra), held that if a confession is given to the police officer before the start of investigation, then it can be used in favour of the accused as held in Mottai Thevar's case. If confession is made after the commencement of the investigation, it cannot be used to give any benefit or advantage to the accused in the light of the ban imposed by section 162 of Cr.P.C. P.W.3 in his evidence stated that he made correspondence to the R.T.O., Ganjam, Chatrapur to ascertain the ownership of the auto rickshaw bearing registration no.OR- 07-N-1450 and it was reported to him that the name of the registered owner of the vehicle is appellant Sibaram Swain. Since in the case in hand, the immediate statement made by the appellant Sibaram Swain, the owner -cum- driver of the auto rickshaw after the vehicle was detained was before the start of investigation, in my humble view, he is not precluded from relying upon his confession for his own purpose or in support of his defence plea. The immediate statement was that he had no knowledge about the contents of the bags as the bags had been kept by the appellant Ratnakar Swain and that he was carrying him as well as the bags on payment of hire charges as stated by P.W.2, which is also the defence plea taken by the appellant Sibaram Swain in his accused statement coupled with the statements of both P.W.2 and P.W.3 that appellant Ratnakar Swain claimed ownership of the air bags and jerry basta is admissible under section 6 of the Evidence Act as res gestae as it is simultaneous with the incident or substantial contemporaneous that was made immediately after the occurrence. The essence of the doctrine of the res gestae 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. 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. From the very beginning, the appellant Sibaram Swain had expressed his ignorance about the contents of the airbags as well as the jerry bag. Add to it, his conduct in stopping the vehicle when signal was given by the Excise officials to stop and in not trying to flee away from the spot is also another factor which goes against culpable state of mind. Subsequent conduct is relevant and can be considered under section 8 of the Indian Evidence Act. This section lays down that the conduct of any party in reference to any fact in issue and conduct of any person, an offence against whom is the subject of any proceeding is relevant, whether it was previous or subsequent. The subsequent conduct of accused may be definite counter to his culpability totally inconsistent with innocence. I find no material on record about any previous acquaintance between the two appellants and even P.W.3 has stated that he had not directed his investigation to find out if there remained any relationship between the appellants. There is also no material that any such contract between the appellants to carry the bags with an exorbitant price taking risk. There is also no evidence that any such smell was coming out of the air bags or jerry basta to create suspicion in the mind of the driver. The circumstances appearing in the prosecution evidence are not of such a nature so as to give reasonable assurance to this Court that appellant had the knowledge or the required intention to carry the contraband articles. The prosecution has failed to discharge the initial burden to prove that the appellant had the knowledge that the vehicle he was driving was being used for transporting contraband articles. The prosecution has failed to discharge the initial burden to prove that the appellant had the knowledge that the vehicle he was driving was being used for transporting contraband articles. The evidence of the two official witnesses, the answers elicited from them in the cross-examination and from the circumstances, this Court entertains strong doubt regarding appellant's awareness about the nature of substance in the air bags and jerry basta found in his auto rickshaw and in my considered opinion, the appellant is successfully able to create a reasonable doubt, as part of his defence, to rebut the presumption of his guilt. Thus, I am of the humble view that it cannot be said that the appellant Sibaram Swain had any knowledge of the nature of substance in the air bags and jerry basta and that he knowingly permitted his vehicle to be used for the commission of offence and it also cannot be said that he failed to account satisfactorily the possession of the contraband ganja found in the vehicle. In view of the foregoing discussion, the impugned judgment and order of conviction of the appellant Sibaram Swain cannot be sustained in the eye of law and accordingly, the same is hereby set aside. 11. Now coming to the contentions raised by the learned Amicus Curiae so far as appellant Ratnakar Swain is concerned, those are enumerated herein below:- (i) There is statutory infraction of the provision under section 42 of the N.D.P.S Act which is mandatory in nature; (ii) P.W.3 has not followed the provision under section 57 of the N.D.P.S. Act, which though directory in nature but cannot be totally ignored by the Investigating Officer inasmuch as such failure will have a bearing on the appreciation of evidence regarding arrest of the appellant and seizure of the contraband articles; (iii) The brass seal given in the zima of P.W.2 was not produced at the time of production of seized ganja in Court for drawal of sample for comparison and the tampering of seal cannot be ruled out; (iv) Serious prejudice has been caused to the appellants as P.W.3 who detected and seized contraband ganja, himself investigated the case and submitted prosecution report. P.W.2 has stated that the appellant Ratnakar Swain was sitting on the rear seat of the auto rickshaw and four numbers of airbags and one jerry bag were lying on the backside of the rear seat and when the appellant was asked about the contents of those bags, he admitted that the bags had been kept by him and that he was travelling on payment of hire charges but he maintained silent with regard to the contents of those bags. P.W.2 further stated that the bags were subsequently found to be containing ganja. P.W.3 has almost stated in a similar manner except to the extent that when he asked as regards the contents of the airbags and the jerry basta to both the appellants, they remained silent though he stated that appellant Ratnakar Swain claimed ownership of those bags and jerry basta before him. Whether there was statutory infraction of the provision under section 42 of the N.D.P.S Act: P.W.3 stated that while he was in his office, on receipt of a telephonic information about transportation of ganja near Ambapua and Gopalpur junction area, he reduced the information in writing and immediately informed his superior authority i.e. Sri S.P. Gantayat, IIC of Excise vide Ext.7. Law is well settled that total non-compliance with the provisions under sub-sections (1) and (2) of section 42 of the N.D.P.S. Act is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. Section 42(2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours. Under section 42(1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search during that period would afford opportunity for the concealment of evidence or facility for the escape of an offender. The copy of information taken down in writing under sub-section (1) or the grounds of belief recorded under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act has to be sent to his immediate superior official within seventy-two hours. In case of State of Punjab Vs. Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, it is held as follows:- "10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide Sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of his belief under the proviso to Sub-section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful." In the case of Karnail Singh Vs. State of Haryana reported in (2009) 44 Orissa Criminal Reports 183, 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 in hand, the seizure of contraband article was made from one auto rickshaw which is also a public carrier one as stated by P.W.3. The time of detection was during day time around 11.00 a.m. and the vehicle was seized at the public place carrying contraband articles. Therefore, in my humble view, section 43 of the N.D.P.S. Act would be attracted in the case and recording of reasons for his belief and for taking down of information received in writing with regard to commission of an offence before conducting search and seizure was not required. However, it is not a case where P.W.3 suddenly carried out search at a public place and detected contraband ganja in the auto rickshaw but he had already received the telephonic information about transportation of ganja while he was in his office and he has also come up with a case of compliance of section 42 of the N.D.P.S. Act. An endorsement on Ext.7 shows that it was received on 04.07.2011 at 6.00 a.m. from P.W.3 and direction was given to P.W.3 along with the staff to detect the case and I.I.C, E.I. and E.B., Berhampur has put his signature. The endorsement has been marked as Ext.7/2 which has been proved by none else than P.W.3. An endorsement on Ext.7 shows that it was received on 04.07.2011 at 6.00 a.m. from P.W.3 and direction was given to P.W.3 along with the staff to detect the case and I.I.C, E.I. and E.B., Berhampur has put his signature. The endorsement has been marked as Ext.7/2 which has been proved by none else than P.W.3. In Ext.7, it is mentioned that the details of information has been entered in the information register i.e. C.1 but the information register has not been proved during trial. Similarly, I.I.C, E.I. and E.B., Berhampur has not been examined in the case to prove Ext.7. Even P.W.2 who stated to have carried Ext.7 to I.I.C, E.I. and E.B. as per the version of P.W.3, has not stated anything in that respect. However, nothing further has been elicited in the cross-examination of P.W.3 to disbelieve his evidence and even no suggestion is given by the learned defence counsel that Ext.7 is a fabricated document. Though P.W.3 admits that he had not noted the name of the person who had informed him over telephone in his C.D., but since he was required to maintain confidentiality in that respect, no fault can be found with P.W.3. Therefore, the contention regarding statutory infraction of the provision under section 42 of the N.D.P.S Act is not acceptable. Whether P.W.3 has followed the provision under section 57 of the N.D.P.S Act: In the case of Sajan Abraham (supra), it is held that section 57 of the N.D.P.S. Act is not mandatory in nature. When substantial compliance has been made, it would not vitiate the prosecution case. In the case of Manoj Kumar Panigrahi (supra), the Hon'ble Supreme Court held as follows:- "12. When substantial compliance has been made, it would not vitiate the prosecution case. In the case of Manoj Kumar Panigrahi (supra), the Hon'ble Supreme Court held as follows:- "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 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." P.W.3 has stated that on 05.07.2011 he submitted a report containing the details of search, recovery and seizure. He further stated that he had sent such detailed report to his superior officer through Dak book. Though P.W.3 could not recollect the name of the persons who carried the detailed report for delivery or the time of exact dispatch but that would not falsify the compliance of section 57 of the N.D.P.S. Act. In that view of the matter, it cannot be said that P.W.3 has ignored the provision under section 57 of the N.D.P.S. Act. Whether the seal on seized contraband articles was tampered with: Law is well settled as held in the case of Herasha Majhi (supra) that the prosecution has to prove that the contraband articles 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. P.W.3 has stated that he sealed the air bags and also the jerry basta by using paper slip with his own brass seal under his signature and obtained signatures of the appellants and the witnesses and thereafter, handed over the brass seal in the zima of P.W.2. He proved the zimanama Ext.5/1. P.W.3 has stated that he sealed the air bags and also the jerry basta by using paper slip with his own brass seal under his signature and obtained signatures of the appellants and the witnesses and thereafter, handed over the brass seal in the zima of P.W.2. He proved the zimanama Ext.5/1. He further stated that after preparation of the seizure list in presence of witnesses and members of his party vide Ext.1/1, he had put a specimen impression of the brass seal used for sealing the seized materials on the seizure list and a copy of the seizure list was handed over to each of the appellants and the appellants put their signatures in token up the said receipt. He further stated that from the spot, he directly came to the Court of Special Judge, Berhampur and made a prayer for collection of samples from the air bags and jerry bag for their onward transmission to DECTL, Berhampur at Chatrapur and his prayer was allowed and S.D.J.M., Berhampur collected the samples from each of the air bags and jerry basta and those were properly sealed by him. He further stated that P.W.2 received those sample packets and forwarding letter from learned S.D.J.M., Berhampur for carrying those to the laboratory. P.W.2 has also stated that the bags were paper sealed and the brass seal of P.W.3 was put on the paper seal and the brass seal used for sealing was given in his zima as per zimanama Ext.5/1. P.W.2 produced the brass seal which he had taken on zima in Court at the time of giving evidence and the same has been marked as M.O.I. In view of the evidence of two official witnesses, it appears that the seized articles were sealed at the spot by using paper slip and brass seal of P.W.3 was used for the said purpose which was given to P.W.2 which he produced at the time of trial. The seized articles were directly produced in the Court of learned Special Judge, Berhampur on the very day and the order sheet dated 04.07.2011 of the learned Special Judge also indicates about the production of the accused along with forwarding report, seizure list, memo of arrest, option given by the accused persons, zimanama of the brass seal, spot map, mal challan, statements of the appellants, statements of witnesses, experience certificate of P.W.3, prayer for drawal of sample, disclosure of grounds of arrest, training certificate of P.W.3, drugs testing chart, original registration certificate of auto rickshaw along with seized ganja. The learned Special Judge considered the prayer of P.W.3 on the very day for drawal of samples for necessary chemical analysis at Chemical Testing Laboratory, Chatrapur and to keep the seized ganja in the Court malkhana and the prayer is allowed and direction was given to the learned S.D.J.M., Berhampur for drawing samples from the seized ganja for sending the same for chemical analysis. The Malkhana clerk was directed to receive the seized ganja to be kept in Court malkhana as per the mal challan. The seized auto rickshaw was directed to be kept with P.W.3 in safe custody until further orders. It further appears that on 04.07.2011, on perusal of the order of the learned Special Judge, Berhampur and in obedience of the said order, when P.W.3 produced the seized property in four numbers of air bags and one jerry basta marked as Sl. No. 1 to 5 under his seal, the learned S.D.J.M. noticed that the seized properties were properly sealed by P.W.3 and the seals were intact. The seals were opened by P.W.3 in presence of learned S.D.J.M., Berhampur and out of each seized properties mentioned vide Sl. No. 1 to 5 under his seal, the learned S.D.J.M. noticed that the seized properties were properly sealed by P.W.3 and the seals were intact. The seals were opened by P.W.3 in presence of learned S.D.J.M., Berhampur and out of each seized properties mentioned vide Sl. No.1 to 5, fifty grams each in two separate packets (in total ten packets) were separately drawn as samples and those sample packets were marked as Ext.A, A/1, B, B/1, C, C/1, D, D/1, E and E/1 respectively and those were sealed under the personal seal of the learned S.D.J.M. and the rest of the seized properties contained in item No.1 to 5 were again resealed under the personal seal of learned S.D.J.M. The broken seals of I.O. were kept in a separate packet and it was also sealed under the personal seal of learned S.D.J.M. The sealed sample packets marked as Ext.A, B, C, D and E and a forwarding report being kept in another packet which was also sealed under the personal seal of the learned S.D.J.M. were handed over to P.W.2 for its production before the Chemical Examiner. The rest of the seized properties i.e. Sl. No.1 to 5, the sealed sample packets Ext.A/1, B/1, C/1, D/1 and E/1 along with sealed packets containing broken seal of the I.O. were handed over to P.W.3 to give it to malkhana clerk of Sessions Court at Berhampur. The part file prepared for drawal of samples was sent by the learned S.D.J.M. to the learned Special Judge, Berhampur. Learned Amicus Curiae argued that the brass seal was given in the zima of P.W.2 under zimanama but the brass seal was not produced by P.W.2 when the air bags and jerry bags containing Ganja were produced for the first time for drawing of sample to be sent for chemical analysis. It was further argued that P.W.2 produced the envelope containing the seal (M.O.I) only at the time when he came to give evidence but it was not in a sealed condition. P.W.3 stated that he had put the specimen impression of the brass seal used for sealing the seized materials on the seizure list marked as Ext.1. The seizure list was placed before the learned Special Judge, Berhampur on the date of seizure itself with the seized ganja directly from the spot when the appellants were produced in Court. P.W.3 stated that he had put the specimen impression of the brass seal used for sealing the seized materials on the seizure list marked as Ext.1. The seizure list was placed before the learned Special Judge, Berhampur on the date of seizure itself with the seized ganja directly from the spot when the appellants were produced in Court. The learned S.D.J.M. in the order sheet dated 04.07.2011 has specifically mentioned that the seized articles were properly sealed by the Investigating Officer and the seals were intact. In view of the aforesaid materials on record, merely on account of non-production of brass seal by P.W.2 on the date the seized articles were produced for the first time in Court cannot be ground to hold that seal on seized contraband articles was tampered with. Whether any prejudice was caused to the appellants as P.W.3 who conducted search and seizure also investigated the case: Learned counsel for the appellants contended that it was unfair 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. According to him, the prosecution has not come forward with any explanation as to why any other empowered officer did not carry out the investigation. In the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120 , it is held that in a case where the informant himself is the investigator, by that itself it cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore, on the sole ground that the informant is the investigator, the accused is not entitled to acquittal. Nothing has been brought out in the cross-examination and learned Amicus Curiae has failed to point out any kind of bias or enmity on the part of the Investigating Officer (P.W.3) with the appellants and whether any serious prejudice has been caused to the appellants on account of investigation by P.W.3 or that he conducted any kind of perfunctory investigation. Therefore, this ground is not sustainable in the facts and circumstances of the case. Therefore, this ground is not sustainable in the facts and circumstances of the case. The defence plea taken by the appellant Ratnakar Swain that he was brought to the Excise Office in a vehicle where his signatures were obtained in different documents is not acceptable since from the evidence of P.W.3, it appears that from the spot, he directly came to the Court of the Special Judge, Berhampur. 12. In view of the foregoing discussions, I am of the humble view that prosecution has successfully established the case against the appellant Ratnakar Swain for commission of offence under section 20(b)(ii)(C) of the N.D.P.S. Act and the learned trial Court is quite justified in convicting the appellant for the said offence. The awarded sentence is minimum for the offence committed and therefore, the impugned judgment so far as appellant Ratnakar Swain needs no interference. Accordingly, CRL. A. No.580 of 2013 filed by appellant Sibaram Swain is allowed. The appellant Sibaram Swain shall be released from custody forthwith if his detention is not required in any other case. Crl. A. No.44 of 2014 filed by appellant Ratnakar Swain stands dismissed. Before parting with the case, I would like to put on record my appreciation to Mr. V. Narasingh, the learned Amicus Curiae for rendering his valuable help and assistance in disposal of Crl. A. No.44 of 2014 as well as the connected appeal. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.5,000/- (rupees five thousand only). Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action.