A. PASAYAT, J.

( 1 ) ON the accusation of having committed an offence punishable under Section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) appellant (hereinafter referred to as accused) faced trial. He was found guilty, convicted and sentenced to undergo rigorous imprisonment for two years in addition to pay a fine of Rs. 2000/- with default sentence of rigorous imprisonment for two months.

( 2 ) ACCUSATION which led to the trial of accused essentially are as follows: On 18-11-1991 at about 7 a. m. when the S. I. of Excise, E. I. and E. B. , Berhampur (P. W. 3) was performing patrol duty with A. S. I. of Excise (P. W. 1) and other members of staff at village Charumaria on the Canal road, he found accused coming towards the bus stand holding a gunny bag over his head. On suspicion that it contained contraband articles same was opened. It was found that accused was carrying Ganja. P. W. 3 enquired from him as to whether he wanted to be searched in presence of a Gazetted Officer or the nearest Magistrate. Accused expressed his desire to be searched by P. W. 3, who is also an empowered officer under Sections 42 and 53 of the Act. On weighment it was found that accused was carrying 36 Kgs of Ganja in the bag in dust form. Ganja was tested by burning a little out of the articles carried and being specially trained in the department, P. W. 3 came to know that articles being carried were agency variety of ganja dust. He took two samples of 50 grams each from the seized ganja which were kept in two paper packets, tied up with strings at the cross point and his personal seal was affixed over the wax. The said two packets were also sealed with paper seals containing signatures of the accused, P. Ws. 1 and 3 and other witnesses. Again seals containing impression of personal seal of P. W. 3 were affirmed. On the very day i. e. 18-11-1991 accused was produced before the learned Judicial Magistrate First Class, Aska (in short, JMFC) along with seizure list, forwarding report and gunny bag in a sealed condition (Mo III ). Learned JMFC remanded the accused to custody, orally directed P. W. 3 to produce Mo. III before the learned Sessions Judge, Gunjam Berhampur as the case was t. mder the Act and Malkhana clerk was absent. On 5-12-1991 Mo. III was produced before learned Sessions Judge who directed to deposit the same in Malkhana. On 19-11-199 1 P. W. 3 reported details of the case including search and seizure to the Inspector E. I. and E. S. in Form No. C-4 in full compliance of Section 57 of the Act. On 22-11-1991 P. W. 3 deputed a Constable under command certificate to produce sample packets before the Chemical Examiner S. D. T. L. , Bhubaneswar. He handed over him the sample packet in a sealed condition along with original test memo. Report was received from the Chemical Examiner to Government of Orissa (Excise and Prohibition), Bhubaneswar to the effect that seized articles were ganja. On completion of investigation, prosecution report was submitted. The accused pleaded innocence.

( 3 ) ON consideration of evidence of the witnesses and materials on record, learned 1st Addi. Sessions Judge, Ganjam, Berhampur, circuit at Aska, found the accused guilty and convicted him as aforesaid.

( 4 ) IN support of appeal learned counsel for accused-appellant submitted that there was clear contravention of statutory requirements more particularly Section 55 of the Act. It is submitted that there is total absence of material to show as to under what condition ganja seized was kept. With reference to evidence of P. W. 3, it is stated that articles were lying with him and seizure which also continued till those were produced in Court during trial With reference to certificate issued by Scientific Officer, it is stated that the manner in which packing was done left ample scope for manipulation. In the aforesaid background it is submitted that learned trial Judge should not have convicted the accused. Mrs. 5, Je