The court held that the search and seizure were conducted in accordance with the provisions of the NDPS Act, that the evidence of the prosecution witnesses was reliable, that the appellant's statement to the police was admissible in evidence, and that the appellant had failed to establish that the house in question did not belong to him.

P. K. MOHANTY, J.

( 1 ) THIS is an appeal against the order of conviction in an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "n. D. P. S. Act"), Sentencing to undergo rigorous imprisonment for 10 years.

( 2 ) THE prosecution case, in brief, is that on 25-5-91 on receiving reliable information that one Pravat Kumar Das was in illegal possession of brown sugar in his house, the petrolling party headed by P. W. 3, the Sub-Inspector of Excise attached to E. I. and E. R. Unit-I, Cuttack proceeded to his house in village Damana and on search of his house brown sugar was recovered, the same was seized, people was taken, then the accused was arrested and his statement was recorded. Pravat Kumar Das made a statement that accused Priyabrata Mishra used to supply brown sugar to him and the accused led P. W. 3 and others to B. D. A. Colony, Bhubaneswar and identified the house of accused of Priyabrata, His house was searched, but no contraband article could be recovered. Priyabrata Mishra disclosed that he was procuring brown sugar from accused Satyanarayan Das of village Khandapada and was supplying them to accused Pravat Kumar Das. P. W. 3 arrested accused Priyabrata and he led P. W. 3 and others to the house of accused Satyanarayan Das of village Khandapada and identified his house. Accused-appellant Satyanarayan Das was found present and his house was searched. Brown sugar was recovered from his possession, which was seized, sample collected and was sent for chemical examination and it was found that the seized substance was brown sugar. The defence plea is one of complete denial of the occurrence.

( 3 ) THE prosecution examined four witnesses of whom P. W. 1 was Ladukishore Panigrahi, Excise Constable, who accompanied P. W. 3 on 15-5-91, P. W. 2 is Niranjan Saiguru, a resident of Khandapada. However, he did not support the prosecution cases and was declared hostile, P. W. 3, Pradipta Ranjan Pattniak is the S. I. of Excise attached to Excise Intelligence and Enforcement Bureau who led the patrolling party and conducted search and seizure and recovered the alleged brown sugar from the house of the appellant, P. W. 4 in Sunil Kumar Poddar, the Inspector-in-charge, E. I. and/e. S. Unit-I, Cuttack who produced the information register of 1991-92 maintained by the Unit.

( 4 ) SRI Brahmananda Panda, learned senior counsel for the appellant, submitted that even though, as per the evidence of P. W. 3, raid was conducted and seizure was made on 15-5-91, but till 20-5-91 the seized articles and samples were kept in the Excise Malkhana. The Inspector-in-charge of Malkhana has not been examined to offer any satisfactory explanation regarding safe-custody, of the seized articles inasmuch as the relevant register indicating that the articles were deposited in the Excise Malkhana having not been produced and proved, it cannot be said that what was seized was sent for chemical examination and in absence of such evidence, it cannot be said that the articles seized from the possession of the appellant was the very article, which was sent for chemical examination. The learned counsel in support of his contention has relied on two decisions of this Court in Rajendra Tripathy v. State of Orissa, 1997 (12) OCR 50 and Kanduri Sahoo v. State of Orissa, 1997 (1) Crimes 331. Sri Jairaj Mishra, learned Addl. Government Advocate on the other land submitted that P. W. 3, the Excise Sub-Inspector was categorically stated is his cross-examination that the seized properties including rest of the samples were kept in the excise Malkhana in the custody of the Inspector-in-charge of Malkhana till those were produced before the Court along with the Prosecution Report. It is further submitted that P. W. 3 in his evidence has further stated that he had put the personal brass seal over the M. Os. and the samples were sent for chemical examination. He had handed over that seal to the Inspector-in-charge,