DIPAK MISRA, J.

( 1 ) THE appellant stands convicted under section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (in short the Act) and sentenced to undergo RI, for five years and to pay a fine of Rs. 5,000/- in default of such payment, to undergo further rigorous imprisonment for six months.

( 2 ) BRIEFLY stated the prosecution case is that at about 7 a. m. on 13-5-1994, the Excise Subinspector, Mobile Squad No. 1. Cuttack, (PW- 1) while patrolling with his A. S. I. and Constable at Gandhipalli area in Cuttack City noticed the accused coming with a full gunny-bag. Being suspicious he retained the accused and searched him in presence of panch witness (PW- 2 ). He found that the gunny bag contained cannabis (ganja) which weighed 12 Kgs. He took sample of 50 grams which was sent for chemical examination. The chemical examination indicated that it was cannabis (ganja ). After completion of the investigation, the appellant was sent for trial to face charges which has ended in conviction and sentence has been passed as mentioned above. The appellant denied the charges in totality.

( 3 ) IN order to bring home the charges, the prosecution examined three witnesses. PW -1 is the excised Sub-Inspector, Mobile Squad No. 1. Cuttack, PW- 2 is a witness to the seizure, PW- 3 is the A. S. I. who accompanied PW- 1 on patrol duty. It is pertinent to state here that PW- 2, the seizure witness, while admitting his signature Ext. 1/1 on the seizure-list, has pleaded ignorance about the contents.

( 4 ) CONSIDERING the evidence of the prosecution witnesses, the trial Judge held that the contraband article in question were recovered and seized from the possession of the appellant and he had no authority to possess the same. Accordingly, he found the appellant, guilty and sentenced him as aforesaid.

( 5 ) SRI S. R. Mohapatra, the learned counsel for the appellant, has contended that the prosecution having failed to establish that the contraband article recovered from the possession of the appellant was the very same article, sent for chemical examination, the appellant cannot be found guilty for possession of the cannabis (ganja) in question. Sri Mohapatra has also canvassed with vehemence, there has been non-compliance of section 55 of the Act which vitiates the trial.

( 6 ) SRI N. Prusty, the learned Additional Government Advocate has strenuously urged that there is ample material on record to establish the link in regard to the article which was seized and the contraband article which was sent for chemical examination, and in absence of any missing link, it cannot be concluded that the seized article was not sent for chemical examination. For this purpose, he has laid emphasis on the evidence of PW-2. He has also controverted the submission with regard to applicability of section 55 of the Act in a case of the present nature.

( 7 ) LET me first deal with the contention whether the contraband article which was seized from the appellant was the same which was sent for chemical examination. As per the forwarding report, the seized ganja and the sample thereof were produced in the Court. PW-l has stated that as it was delayed he took back the seized gunny bag and sample as per the direction of the court and deposited in the official Excise Malkhana at Cuttack. He has further stated on 17-5-1994, he sent the sample to the State Drug Testing Research Laboratory, Bhubaneswar, for chemical examination. In cross-examination, he has indicated that he has entered in the case register that the seized article and sample were kept in Excise Malkhana till 16-5-1994 but he has not produced the said register in Court. He has also stated that as he was busy, he could not produce the sample in the Drug Testing Research Laboratory, Bhubaneswar, till 17-5-1994. The question that arises for consideration is whether the seized article was in safe custody. The plea that the sample and the seized bag were taken back by PW 1 as per the dire