JUDGMENT

Pradip Mohanty, J.—This appeal is directed against the judgment and order dated 21.1.1987 passed by the learned 1st Additional Sessions Judge, Cuttack convicting the appellant and the co-accused under Section 21 of the N.D.P.S. Act and sentencing each of them to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh in default to undergo further rigorous imprisonment for two years in G.R. Case No.730 of 1998/22-T/98.

2. The case of the prosecution is that on 28.7.1998 PW5. Upendra Nath Sahoo, Inspector, C.I.D., C.B., received reliable information from his source that the appellant and the co-accused were dealing in clandestine business of brown sugar at the homestead land of accused Sweta Kumar Swain. He reduced the information to writing and submitted the same to the S.P., C.I.D., C.B. On the orders of the S.P., PW5 along with S.I., Satyabadi Padhi (PW5) and other staff of C.B. went to Sadar P.S. and placed a requisition for assistance and proceeded to the spot along with two witnesses. On seeing the Police personnel, the persons purchasing brown sugar from the accused persons fled away and could not be apprehended. Thereafter, PW5 explained the accused persons the ground of suspicion, gave them option, searched their person and recovered brown sugar along with other articles from each of the accused persons. He seized the same in presence of the witnesses, arrested the accused persons and returned to the Sadar police station where submitted the report and produced the seized articles along with the accused before the O.I.C. On receipt of the report, Sadar P.S. Case No.180 of 1998 was registered and after due investigation charge-sheet was submitted against the present appellant and another.

3. The plea of the accused persons was complete denial of the allegations.

4. In order to prove its case, the prosecution examined as many as nine witnesses including the IO and the seizure witnesses and proved 17 exhibits. The accused persons examined two witnesses in support of their plea.

5. The learned 1st Additional Sessions Judge, who tried the case, on consideration of the evidence and other materials available on record, by his judgment dated 23.10.2000 convicted and sentenced the appellant and the co-accused as already mentioned hereinbefore.

6. Mr. B. S. Mishra, learned counsel for the appellant submits that the impugned judgment is challenged on the following grounds:

(1) Charge is defective.

(2) As the brown sugar was scanty in quantity no sample could be collected.

(3) Independent witnesses did not support the prosecution case with regard to seizure.

(4) No sample was collected in presence of the IO.

(5) PWs.2, 4 and 6 have not supported the prosecution case.

(6) Provisions of Section 55 of the N.D.P.S. Act were not complied with.

(7) Malkhana register was neither produced nor proved.

(8) D.S.P., the Gazetted Officer, has been deliberately withheld by the prosecution.

7. Mr. Das, learned Additional Government Advocate appearing for the State vehemently contended that the judgment and order of conviction is legal, and no infirmity has been committed by the trial Court. Moreover, seizure has been proved by the official witnesses and the chemical report reveals that the material object contains brown sugar.

8. Perused the LCR, more particularly, the statement of the witnesses and the exhibits and the head of charge. PW1 is the SI of Police who was present at the time of recovery of the articles from the possession of the accused persons. He specifically stated that he reached the spot along with the independent witnesses. Before searching the accused persons, the police officials gave their personal search to them. Thereafter, PW5 took the personal search of the appellant and the co-accused: The search was made in presence of a Gazetted Officer i.e., D.S.P. During search, PW5 detected some Pudias and cash of Rs.70 from the left side shirt pocket of accused Sweta. During search of accused appell