JUDGMENT
P.K. Misra, J.
1. The appellant assails his conviction under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the “NDPS Act”) and sentence of R. I. for 4 years and fine of Rs. 5,000/- with a default sentence of R. I. for one year, imposed by the Sessions Judge, Sambalpur.
2. As per the prosecution case, on 17-7-1994 at about 7 p. m., the Officer-in-charge, Govindpur Police Station (PW 4) was performing patrol duty near Bamara Railway Station along with A. S. I. (PW 1) and Havildar. In front of one Rajen Choudhury’s hotel, the aforesaid police officials found the accused coming from the railway station side with a plastic bag. On suspicion, the Officer-in-charge detained the accused and searched the bag. He found a white napkin inside the bag and inside the napkin, there was a polythene packet containing Ganja. After recovering the Ganja, the same was weighed with the help of one Birendra Prasad (PW 2). It is alleged that the Officer-in-charge removed 25 grams of Ganja as sample and kept it in a separate packet and sealed both the packets. Subsequently, on chemical examination it was found that the seized material consisted of flowering and fruiting tops of Ganja.
3. The plea of the accused was one of denial. It is claimed that since he refused to give mangoes to the police officials free of cost, a false case has been foisted.
4. PWs 1 and 4 are the officials who seized the article, whereas PWs 2 and 3 are the witnesses to seizure. Relying upon the evidence of the aforesaid witnesses, the trial Court has convicted the appellant under Section 20(b)(i) of the NDPS Act.
5. The learned counsel appearing for the appellant first submitted that before effecting personal search of the accused person, the provision of Section 50 of the NDPS Act has not been complied with, inasmuch as no option was given to the appellant to be searched either before nearest Gazetted Officer or nearest Magistrate. In support of such contention, the appellant has placed reliance upon the decision reported in (1994) 7 OCR 283 (State of Punjab v. Balbir Singh and Ors.). However, the aforesaid contention of the appellant is not tenable, inasmuch as by the time of search and seizure, the seizing officials were not aware as to whether an . offence under the NDPS Act had been committed. As has been observed by the Supreme Court subsequently, the question of complying with the provisions of the NDPS Act would arise only after the prosecution becomes aware of the commission of an offence under the provisions of the NDPS Act. Therefore, the question of compliance of Section 50 did not arise at that stage, as admittedly, the police officials searched and seized the material only on suspicion and not on the basis of any prior intimation.
6. It is next contended that the alleged seizure took place in front of the hotel of Rajen Choudhury who was allegedly present at the time of search, but he has been withheld from the witness box though he had come to the Court. Since the prosecution has examined the other two witnesses who were present at the time of search and seizure, the non-examination of Rajen Choudhury is immaterial in the facts 2nd circumstances of the present case and as such I do not attach any importance to such contention.
7. The learned counsel for the appellant contended that in view of the serious discrepancy in the evidence of the witnesses, the prosecution case regarding recovery from the accused should be disbelieved. Though there is some minor contradiction in the evidence of the witnesses, I am not in a position to uphold this contention as the materials on record establish that, in fact, there had been search and seizure.
8. The next important question is as to the safe custody of the seized articles and the sample article. As has been observed in the case of Valsala v. State of Kerala: AIR 1994 SC 117, which has been followed by this Court in the decisions, reported in (1994) 7 OCR 108 (Laxmidhar Mohapatra v. State of Orissa) 1994 (II) OLR 76 (1994) 7 OCR 446(Ajaya Kumar Naik v. State of Orissa); (1996) 11 OCR 487 (Suresh Kumar Sahu v. State of Orissa) and (1993) 11 0CR 523(Laxman Mohapatra v. State of Orissa). the prosecution must establish that the sample from the seized article had been sent for chemical exami-n3tion. In the present case, it is claimed that after seizure, the Officer-in-charge took the sample on the spot and kept it in a separate sealed cover which was subsequently sent for chemical examination. There appear to be a lot of contradictions on this aspect. According to PW 1, the A. S. I., who was present at the time of search, 20 grams of Ganja was taken out as sample and kept separately in a sealed packet, whereas according to PWs 2, 3 and 4, 25 grams of Ganja had been taken as sample. If this would have been the only contradiction, possibly, it could have been overlooked. However; the report of the Chemical Analyst shows that the packet received by him had contained approximately 34 grams. It is not explained by the prosecution as to how 20 or 25 grams of sample article became 34 grams. Coupled with the aforesaid glaring discrepancy, in the present case there is no clear evidence regarding proper custody of the seized articles and the sample. As per the evidence of the Officer-in-charge after taking the sample, the same was kept by him in a separate cover by affixing his own seal. It is evident that the sample as well as the seal remained with the Officer-in-charge for about 13 days, whereafter it was sent for chemical analysis. Keeping in view the discrepancy in the weight of the sample taken by the Officer-in-charge and the weight of the sample examined by the Scientific Officer and in view of the fact that the sample as well as the seal remained with the Officer-in-charge and was not kept with any other authority, the possibility of tampering cannot be discounted. In view of the aforesaid suspicion, it is very difficult to hold that the sample which was examined by the Scientific Officer was, in fact, taken from the articles seized from the accused. In such view of the matter, the appellant is entitled to the benefit of doubt and he is acquitted of the charge under Section 20(b)(i) of the NDPS Act.
9. It seems that the appellant is in custody from the date of his arrest i. e. 17th July, 19S4 for about two and half years. The appellant should be released forthwith if he is not required to be detained in connection with any other case and the fine, if paid, should be refunded.
The appeal is accordingly allowed.