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IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No. 428 of 2016 From the judgment and order dated 28.03.2016 passed by the 2nd Additional Sessions Judge -cum- Judge (Special Court), Sambalpur in T.R. Case No.35/52 of 2012-15. ----------------------------- Laxmi Charan Meher ........... Appellant -Versus- State of Odisha ........... Respondent For Appellant: - Mr. Akshaya Kumar Sahoo For Respondent: - Mr. Manoranjan Mishra Addl. Standing Counsel ----------------------------- P R E S E N T: THE HON’BLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 16.03.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Laxmi Charan Meher along with co- accused Panchanan Pradhan faced trial in the Court of the learned 2nd Additional Sessions Judge -cum- Judge (Special Court), Sambalpur in T.R. Case No.35/52 of 2012-15 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 15.05.2012 at about 2.15 p.m. at village // 2 // Khandahota under the jurisdiction of Rairakhol police station in the district of Sambalpur, they were found illegally transporting ganja weighing about 37 Kgs. which was of commercial quantity in a red colour Passion Plus motor cycle bearing regd. No.OR-15- L-7634 in contravention of the provision under section 8 of the N.D.P.S. Act. The learned trial Court vide impugned judgment and order dated 28.03.2016 has been pleased to acquit the co- accused Panchanan Pradhan of the charge, however found the appellant guilty under section 20(b)(ii)(C) of the N.D.P.S. Act and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default, to undergo R.I. for a further period of two years. 2. The prosecution case, as reveals from the prosecution report in a nutshell is that while Debasis Patel (P.W.6), S.I. of Excise, E.I. & E.B., Sambalpur along with other excise officials were performing patrolling duty at village Khandahota road on 15.05.2012 at about 2.15 p.m., P.W.6 found one person coming in a red colour Passion Plus motor cycle bearing regd. No.OR-15-L-7634. On suspicion, P.W.6 detained him and came to know that he is the appellant and since the appellant was keeping a plastic gunny sack at the back Page 2 of 25 // 3 // side of the motor cycle from which smell of ganja (cannabis) was coming, P.W.6 called the witnesses, namely, Kumar Pradhan (P.W.2), Jogeswar Pradhan (P.W.3) and thereafter he gave option to the appellant to be searched either by Magistrate or by himself to which the appellant gave his option vide Ext.9 to be searched by P.W.6. P.W.6 then gave his personal search and ganja (cannabis) was recovered from the plastic bag which was
Legal Reasoning
tested by P.W.6 by rubbing it on his palm and burning on fire, as a result, he came to know that the article was nothing but ganja (cannabis) on the basis of his nine years of departmental experience. After conducting the test, the ganja (cannabis) was weighed and it came to 37 kgs. and the plastic bag came to 300
Legal Reasoning
grams. Two sample packets were prepared by P.W.6 and each packet contained 50 grams of ganja and the rest ganja of 36.900 grams were kept in the plastic bag and both the bulk quantity of ganja as well as the sample packets were sealed and the signature of the appellant and witnesses were taken on the seized articles. P.W.6 seized the ganja (cannabis) along with the red colour Passion Plus motor cycle. The plastic bag containing bulk quantity of ganja was marked as Ext.A and the sample packets were marked as Ext.A/1 and Ext.A/2. The brass seal of P.W.6 which was used for sealing the packets was handed over Page 3 of 25 // 4 // to Jogeswar Pradhan (P.W.3) after preparing zimanama marked as Ext.2/1. Thereafter he prepared the seizure list and the copy of the same was provided to the appellant and his signature was taken on the seizure list. P.W.6 prepared the spot map, recorded the statement of the appellant vide Ext.10 in which the appellant confessed that he was doing ganja business along with co- accused Panchanan Pradhan from whom he had procured the ganja and he was staying in a house adjacent to the house of co- accused Panchanan Padhan. P.W.6 examined the witnesses and recorded their statements and issued requisition to the Inspector in-charge of Town police station, Sambalpur to keep the contraband articles in police malkhana. The contraband articles marked as Ext.A, Ext.A/1 & Ext.A/2 and the motorcycle were kept in the Town police station malkhana by making necessary entry in the malkhana register. On the next day, i.e. on 16.05.2012, P.W.6 received the contraband articles, forwarded the appellant to the Court of learned Sessions Judge, Sambalpur and produced the seizure list, disclosure of ground of arrest, brass seal, zimanama etc. and made prayer to send the sample ganja packets marked as Ext.A/1 and Ext.A/2 for its chemical examination and opinion and to direct Nazir to receive the seized articles vide Mal challan. The prayer of the I.O. was allowed and Page 4 of 25 // 5 // learned S.D.J.M., Rairakhol was directed to send the sample ganja packets (marked as Ext.A/1 and Ext.A/2) to D.E.C.T.L, Sambalpur for examination. P.W.6 himself produced the sealed packets before the chemical examiner. He also obtained the instruction from the R.T.O., Sambalpur that the seized motorcycle stood in the name of the appellant. He received the chemical examination report vide Ext.16 wherein opinion has been given that the seized materials were ganja (cannabis). In spite of his several attempts, P.W.6 could not arrest the co- accused Panchanan Pradhan and accordingly, he submitted the Prosecution Report against the appellant and the co-accused Panchanan Pradhan for commission of offence under section 20(b)(ii)(C) of the N.D.P.S. Act along his experience certificate and training pass certificate respectively. Subsequently, the co- accused Panchanan Pradhan was arrested and taken into custody and he also faced trial along with the appellant in the Court of learned 2nd Addl. Sessions Judge -cum- Special Judge, (Special Court), Sambalpur. 3. The appellant along with co-accused Panchanan Pradhan was charged under section 20(b)(ii)(C) of the N.D.P.S. Act to which they refuted, pleaded not guilty and claimed to be tried. Page 5 of 25 // 6 // 4. During the course of trial, in order to prove its case, the prosecution examined six witnesses. P.W.1 Girija Shankar Mohanty was the Excise Constable attached to E.I. & E.B. Division, Sambalpur and was one of the members of the patrolling party and he stated about the seizure of the contraband ganja along with the motor cycle from the possession of the appellant. He is a witness to the handing over of the brass seal to one Jogeswar Pradhan (P.W.3) by executing zimanama vide Ext.2/1, arrest memo and the sketch map. P.W.2 Kumar Pradhan, P.W.3 Jogeswar Pradhan and P.W.4 Chandramani Sahoo did not support the prosecution case for which they were declared hostile. P.W.5 Ramesh Kumar Pradhan was the S.I. of Police Town police station, Sambalpur and he stated that on the request of P.W.6 and as per the direction of the Inspector in- charge of Sambalpur Town police station, he kept one plastic jari bag containing ganja, two sealed sample packets each containing 50 grams of ganja marked Ext.A/1 and A/2 and one Hero Honda motor cycle bearing No.OR-15L-7634 in the P.S. malkhana vide Town P.S. Malkhana entry no.18/2012. He is a witness to the prayer made by the S.I. of Excise as per Ext.8. Page 6 of 25 // 7 // P.W.6 Debasis Patel, was the S.I. of Excise, E.I. & E.B. Division, Sambalpur, who conducted search and seizure and he is also the Investigating Officer of the case, who on completion of investigation, submitted Prosecution Report. The prosecution exhibited seventeen documents. Ext.2/1 is the zimanama, Ext.3 is the seizure list, Ext.6 is the spot map, Ext.7/1 is the statement of P.W.3, Ext.8 is the requisition of the I.O. to the I.I.C., Town police station, Sambalpur to keep the seized articles, Ext.9 is the option letter, Ext.10 is the statement of the appellant, Ext.11 is the statement of P.W.2, Ext.12 is the malchalan, Ext.13 is the acknowledgment, Ext.14 is the forwarding letter, Ext.15 is the registration details of the seized motor cycle furnished by the R.T.O., Sambalpur, Ext.16 is the C.E. report and Ext.17 is the statement of Chandramani Sahu. No material objects were proved in evidence on behalf of the prosecution. 5. The defence plea of the appellant was one of complete denial. 6. The learned trial Court vide impingement judgment and order dated 28.03.2016 has been pleased to hold that the seized ganja was recovered from the exclusive possession of the Page 7 of 25 // 8 // appellant while he was transporting the same in a plastic bag in the motor cycle in question and further held that the seized bulk ganja and the sample packets along with the motor cycle belonging to the appellant were kept in Sambalpur Town P.S. malkhana till its production in the Court vide Ext.8, the mandatory provisions as per section 52(3) and section 55 of the N.D.P.S. Act have been complied with and thereby held the appellant guilty of the offence charged while acquitting the co- accused Panchanan Pradhan. 7. Mr. Akshya Kumar Sahoo, learned counsel for the appellant contended that the charge is defective and contrary to the prosecution case. P.W.6 is the officer who not only received reliable information but also conducted search and seizure and he is the investigating officer of the case and therefore, he is a highly interested witness and the appellant has been seriously prejudiced on account of the investigation being conducted by such an officer. Learned counsel further submitted that there has been non-compliance of the mandatory provision of section 50 of the N.D.P.S. Act for which the conviction of the appellant is not sustainable in the eye of law. He argued that since the place of seizure was at village Khandahota under the jurisdiction of Rairakhol police station, after seizure of the articles, it should Page 8 of 25 // 9 // have been produced before the Inspector in-charge of Rairakhol police station which was the nearest police station so that he would have taken charge of the articles before being produced in Court on the next day. Learned counsel further argued that the articles were produced at Sambalpur Town Police Station which is at a distance of 67 kms. away from the place of seizure. Learned counsel further submitted that P.W.5, the S.I. of police, Town police station, Sambalpur though stated that as per the direction of the Inspector in-charge, Town police station, Sambalpur on the requisition submitted by P.W.6, he kept the seized ganja in sealed packets i.e. one plastic jari bag containing 37 Kgs. of ganja, two sealed sample packets each containing 50 grams of ganja marked as Ext.A/1 and Ext.A/2 and one Hero Honda motorcycle bearing regd. No.OR-15-L-7634 after making necessary entry in the malkhana register but neither the malkhana register nor its copy was produced or proved during trial. He further submitted that there is no evidence that any seal of the officer who received the seized contraband articles at Town police station, Sambalpur or the officer in-charge was given which is one of the requirements of the section 55 of the N.D.P.S. Act. It is further submitted that though the brass seal was produced in Court on the date the appellant was produced Page 9 of 25 // 10 // but there is no evidence that the seal impression which was available in the seized articles i.e. bulk quantity of ganja marked as Ext.A and sample packets marked as Ext.A/1 and Ext.A/2 were compared with the brass seal and even the brass seal was not produced and marked as M.O. during trial. The seized contraband articles were also not produced during trial and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Learned counsel for appellant placed reliance on the cases of Santosh Patra & others -Vrs.- State of Odisha reported in 2015 (I) ILR-CUT 974, Than Kunwar -Vrs.- State of Haryana reported in (2020) 5 Supreme Court Cases 260 and Ashok @ Dangra Jaiswal -Vrs.- State of M.P. reported in A.I.R. 2011 S.C. 1335. Mr. Manoranjan Mishra, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and argued that when the appellant was carrying the bag containing ganja in the motorcycle, compliance of section 50 of the N.D.P.S. Act was not required. He further submitted that from the evidence of the official witness (P.W.6), it appears that option was given to the appellant in writing whether he wanted to be searched by Magistrate or by P.W.6. The said writing Page 10 of 25 // 11 // option has been marked as Ext.9. Learned counsel further submitted that section 55 of the N.D.P.S. Act is not the mandatory provision and when the evidence of P.W.5 indicates that the seized articles i.e. one plastic jerry bag along with two sealed sample packets, each containing 50 grams of ganja were produced by P.W.6 on 15.05.2012 at about 10.00 p.m. and it was kept in P.S. malkhana as per the direction of Inspector in- charge after making necessary entry in the P.S. malkhana register vide entry no.18/2012 and the evidence of P.W.5 has not been shaken and therefore, the safe custody of the seized articles before its production in Court cannot be doubted. Learned counsel further submitted that the sample packets along with the bulk quantity of ganja were produced in Court and prayer was made by the I.O. to send the sample exhibits for chemical examination and the other seized articles to be kept in the Court malkhana and accordingly, order was passed and the learned S.D.J.M., Rairakhol was directed to send the sample packets marked as Ext.A/1 and Ext.A/2 for chemical examination and the chemical examination report marked as Ext.16 indicates that on being tested, both the sample packets were found to be ganja (cannabis). He argued that there is no defect in charge and merely because P.W.6 being the officer who detected the Page 11 of 25 // 12 // crime and conducted search and seizure also investigated the case, it cannot be said that the appellant was prejudiced and therefore, no fault can be found with the impugned judgment passed by the learned trial Court and the appeal should be dismissed. 8. Adverting to the contentions raised by the learned counsel for the respective parties, the following points are required to be addressed: (i) Whether the charge was defective and not in consonance with the prosecution case? (ii) Whether the appellant is prejudiced merely because P.W.6 who conducted search and seizure after detection of the crime also conducted investigation and submitted final prosecution report? (iii) Whether compliance of section 50 of the N.D.P.S. Act at the time of search and seizure was necessary and if so, whether the same has been complied with? (iv) Whether there is non-compliance of the provision under section 55 of the N.D.P.S. Act? Page 12 of 25 // 13 // (v) Effect of non-production of brass seal and seized ganja before the Court during trial. Point no. (i): The charge was framed against the appellant and the co-accused Panchanan Pradhan under section 20(b)(ii)(C) of the N.D.P.S. Act on the accusation that they were illegally transporting commercial quantity of ganja in the motor cycle which was recovered from their possession. On going through the prosecution report, seizure list and statements of witnesses recorded during investigation, it appears that the co-accused Panchanan Pradhan was not with the appellant when the contraband ganja was transported or seized and no ganja was ever seized from the possession of the said co-accused and his implication is based only on the confessional statement of the appellant before P.W.6. Therefore, the learned counsel for the appellant is right that the charge was not in consonance with the prosecution case. The responsibility of framing the charges is that of the trial Court and it has to judicially consider the question of doing so. Section 215 of Cr.P.C. lays down when errors in the particulars required to be stated in the charge can be treated as material. It lays down that the error cannot be said to be material unless the accused was in fact misled by such Page 13 of 25 // 14 // error or omission and that such error or omission has caused a failure of justice. Section 464 of Cr.P.C. deals with the effect of error or omission made while framing charges on the finding and sentence of the competent Court. The section provides that the finding and sentence of the Court cannot be invalid merely on the ground of error in framing charge or omission in framing charge. The finding and sentence will be invalid only if in the opinion of the Court of appeal, the error or omission has occasioned a failure of justice. In my humble view, though the charge was defective particularly relating to the accusation against the co-accused, but so far as the appellant is concerned, it cannot be said that error is of such a magnitude that has occasioned a failure of justice. Point no. (ii): Law is well settled that merely because the officer who conducted search and seizure, is also the investigating officer of the case, the accused persons are not entitled to be acquitted on that score. In Mukesh Singh -Vrs.- State (Narcotic Branch of Delhi) reported in (2020) 10 Supreme Court Cases 120, the five-Judge Bench of the Hon’ble Supreme Court has held as follows : Page 14 of 25 // 15 // “13.2.(ii) 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. The matter has to be decided on a case-to-case basis.” Therefore, though the contention of the learned counsel for the appellant is that since P.W.6 conducted search and seizure, in the fairness of things, he should not have investigated into the case and submitted the prosecution report has got considerable force, but all the same, in absence of any unfairness or bias on the part of P.W.6 to implicate the appellant falsely, the prosecution case cannot be discarded on that score. Point no. (iii): There is no dispute that in this case, there was no prior information about the transportation of ganja in a plastic gunny sack in the motorcycle and while P.W.6 along with other excise officials were performing patrolling duty at 15.05.2012 at about 2.15 p.m. at village Khandahota under Rairakhol police Page 15 of 25 // 16 // station, on suspicion they detained a red colour Passion Plus motor cycle bearing regd. No.OR-15-L-7634 and found the appellant carrying a white colour plastic bag from which smell of ganja was coming. So far as compliance of section 50 of the N.D.P.S. Act is concerned, though learned counsel for the appellant placed reliance on the case of Than Kunwar (supra) but in that case, the Hon’ble Court has been pleased to hold that where nothing was recovered on the personal search and the recovery was effected from the bag, compliance of section 50 of the N.D.P.S. Act is not required. In the case of State of Punjab -Vrs.- Baldev Singh and others reported in 1999 Criminal Law Journal 3672 so also in the case of State of H.P. -Vrs.- Pawan Kumar reported in (2005) 4 Supreme Court Cases 350, it has been held that provision of section 50 N.D.P.S. Act will come into play only in the case of personal search of the accused and not some baggage like the bag or container etc., which the accused may be carrying. A bag, brief case or container etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Therefore, it is not possible to include these articles within Page 16 of 25 // 17 // the ambit of the word ‘person’ occurring in section 50 of the N.D.P.S. Act. Moreover, P.W.6 has stated that he gave in writing the option (Ext.9) to the appellant to be searched either by the Magistrate or by himself and then the appellant wanted to be searched by him (P.W.6). On a plain reading of Ext.9, the option given by the appellant, it is mentioned therein that he expressed his willingness to be searched by P.W.6. Therefore, I am not inclined to accept the contention of the learned counsel for the appellant that due to non-compliance of the section 50 of the N.D.P.S. Act, the conviction of the appellant is not sustainable in the eye of law. Point no. (iv): Section 55 of the N.D.P.S. Act deals with police to take charge of articles seized and delivered and it states, inter alia, that an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and which may be delivered to him and to affix his seal to such articles. In the case of Santosh Patra (supra), it has been held that section 55 of the N.D.P.S. Act provides that if any Page 17 of 25 // 18 // contraband article is seized then the same shall be delivered to the officer in charge of a nearest police station for safe custody pending orders of the Magistrate. The officer in charge shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer in charge of the police station. So, two conditions are required to be fulfilled. An officer who accompanies the seized articles shall be allowed by the officer in charge of the police station to affix his seal to such articles and take samples thereof. It is further required that all samples so taken shall also be sealed with a seal of the officer in charge of the police station. Keeping the seized articles in the safe custody of officer in charge of local police station arises where there is no possibility of producing the same in Court on the date of seizure itself. Putting the seized articles in sealed condition by affixing the seal of the officer in charge of the police station making necessary entry in malkhana register and proving the same during trial will satisfy the Court about its safe custody. Law is well settled as held in the case of Herasha Majhi -Vrs.- State of Odisha reported in 2020 (I) ILR-CUT- Page 18 of 25 // 19 // 197 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. In the case of Ramakrushna Sahu and others -Vrs.- State of Odisha and others reported in (2018) 70 OCR 340, it is 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 Page 19 of 25 // 20 // 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." The place of seizure was at village Khandahota which comes under the jurisdiction Rairakhol police station, but the seized articles were not produced before the Rairakhol Police Station rather it was produced before the Town police station, Sambalpur. P.W.5, the S.I. of police of Town police station, Sambalpur stated to have kept the bulk quantity of ganja in the plastic jerry bag so also the sample packets in the P.S. malkhana. Though he stated that malkhana entry register no.18/2012 was made, but the prosecution has not produced either the malkhana register or a copy of the same during trial. There is no evidence that before keeping the seized articles, the seal of the official in charge of malkhana was given. Therefore, except the oral evidence of P.W.5, there is no documentary evidence relating to the safe custody of the seized articles in the P.S. malkhana. There is also no evidence as to why the seized articles were not produced in the nearest police station i.e. before Rairakhol police station and produced before the Town police station, Sambalpur which is at a distance of 67 kms. away from the place of seizure. Page 20 of 25 // 21 // Therefore, the prosecution has failed to prove compliance of section 55 of the N.D.P.S. Act. Point no. (v): In the case of Sumit Kumar Behera and another -Vrs.- State of Odisha reported in 2019 (II) Orissa Law Report 49, it is held that it is the requirement of law that when the contraband articles are seized and sealed with the seal impression then the brass seal has to be left in the zima of a reliable person under zimanama and instruction is to be given to such person to produce it before the Court for verification at the time of production of articles. In the case of Biswanath Patra -Vrs.- State of Odisha reported in 2019 (I) Orissa Law Reviews 34, it is held that handing over the brass seal to a reliable 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 articles. In the case of Bayamani Mandinga -Vrs.- State of Odisha reported in 2016 (I) Orissa Law Reviews 831, it is held that if the brass seal remains with the person who has Page 21 of 25 // 22 // effected search and seizure, then chance of tampering cannot be ruled out. In the case of Ashok @ Dangra Jaiswal (supra), it has been held that in the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused and the best evidence would have been the seized materials which ought to have been produced during trial and marked as material objects and there was no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the N.D.P.S. Act. P.W.6 stated that he gave zima of brass seal used for sealing the contraband articles to Jogeswar Pradhan (P.W.3) after preparing a zimanama vide Ext.2/1. P.W.3 has not supported the statement of P.W.6 rather he has stated that nothing was given in his zima and he has not signed zimanama (Ext.2/1). P.W.3 has been declared hostile by the prosecution, but signature of P.W.3 in Ext.2/1 was not confronted to him. The brass seal was produced on 16.05.2012 by P.W.6 when the Page 22 of 25 // 23 // appellant was produced along with other documents. If according to P.W.6, he gave zima of brass seal used for sealing the contraband articles to P.W.3, then how he produced it while forwarding the accused to Court on 16.05.2012. This substantiates that the recital of zimanama (Ext.2/1) was not correct and the brass seal was never handed over to P.W.2. Moreover, on a plain reading of the order dated 16.05.2012, it appears that no comparison has been made relating to the seal impression appearing on the seized articles with the brass seal. Learned 2nd Addl. Sessions judge -cum- Special Judge (Special Court), Sambalpur directed the learned S.D.J.M., Rairakhol to send the Ext.A/1 and Ext.A/2 for chemical examination but there is also no evidence that the brass seal was produced before the learned S.D.J.M., Rairakhol and he compared the same with the seal impression that is appearing on the sample packets marked as Ext.A/1 and Ext.A/2. The brass seal was also not produced during trial to be marked as M.O. and even the seized ganja was not produced during trial. It is the duty of the prosecution to prove by adducing clinching evidence that the articles which were seized from the possession of the accused were kept in safe custody before its production in Court and the articles which were produced in the Page 23 of 25 // 24 // Court were the very articles that were seized from the accused and that there was no chance of tampering with the same. Non- sealing the seized articles with the seal of officer in charge of the police station who took charge of the articles, non-proving of the malkhana register showing the entry made for keeping the articles, non-comparison of the brass seal impression appearing on the seized articles with the brass seal produced by the court are certain important aspects which cannot be ignored inasmuch as those are the cross-checks to substantiate the safe custody of the articles and rule out tampering with the seized articles. It is the duty of the Court to mention specifically in that respect in the order sheet that the bulk quantity of ganja and sample packets were verified and the seals were found to be intact and it was compared with the brass seal produced or the seal impression available on the seizure list or on any other document and found to have tallied. The same has not been done in this case. 9. In view of the foregoing discussions and the infirmities as pointed out above, I am of the humble view that the impugned judgment and order of conviction is not sustainable in the eye of law. Accordingly, the impugned judgment and order of conviction of the appellant under section Page 24 of 25 // 25 // 20(b)(ii)(C) of the N.D.P.S. Act and the sentence passed there under is hereby set aside. The Criminal Appeal is allowed. The appellant is acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act. The appellant has been released on interim bail for a period of four months by a Coordinate Bench of this Court as per order dated 28.11.2022 passed in I.A. No. 1239 of 2022, which has not expired as yet. He is discharged from the liability of bail bond. The personal bond and surety bonds stand cancelled. The trial Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 16th March 2023/PKSahoo Page 25 of 25