JUDGMENT

L. MOHAPATRA, J. — This appeal is directed against the judg¬ment and order of conviction passed by the learned Sessions Judge, Puri convicting the appellant under Sec. 21 of the Narcot¬ic Drugs and Psychotropic Substances Act and sentencing him to undergo imprisonment for 10 years and pay fine of rupees one lakh.

2. The case of the prosecution is that on 1.8.1999 at about 2.30 P.M. the Officer-in-Charge of Town Police Station, Puri received information that the appellant was selling drugs near Puri Singhasthan Kaibartya Sangha and on receipt of such information he entered the same in the Station Diary as Entry No. 10 on that date. Thereafter, the Officer-in-Charge passed the information to the Town Inspector, Puri, a Gazetted Officer and requested him to proceed to the spot to witness search and sei¬zure along with other Police Officers. When the O.I.C. reached at the spot, he found the appellant surrounded by Police party on suspicion and the appellant disclosed his identity and was also identified by witnesses. Thereafter, the O.I.C. explained the appellant his intention to search him on suspicion of possession of narcotic drugs and on being given a choice, the appellant offered to be searched in presence of an Executive Magistrate or Gazetted Officer and also agreed to be searched in presence of the Town Inspector, Puri who is a Gazetted Officer. Thereafter, the personal search of the appellant was taken and one small polythene packet containing brown sugar was found kept in the right side waist concealed in a napkin. The appellant having failed to produce any authority supporting possession of narcotic drugs, the same was seized and on weighment, it was found to be 2 grams and 300 miligrams. Thereafter, the seizure of packet con¬taining signature/L.T.I. of the appellant and the witnesses to seizure was prepared and copy of the same was made over to the appellant. The brass adal used in sealing was left in zima of a witness and the appellant was arrested after explaining him the ground of arrest. Thereafter, on a written report of the O.I.C., the case was registered and investigated by S.I. of Police. The seized brown sugar was also sent for chemical examination and thereafter on completion of investigation, charge-sheet was submitted for commission of offence under Sec. 21 of the N.D.P.S. Act.

3. In order to bring home the charge, the prosecution examined six witnesses. P.W.1 is a witness to the occurrence, P.W.2 is the goldsmith who weighed the seized brown sugar, P.W.3, is the then A.S.I. of Police, Town Police Station who was also a witness to the seizure, P.W.4, is the O.I.C., P.W.5, is the Town Inspector, Puri in whose presence recovery and seizure was made and P.W.6, is the S.I. of Police who investigated the case. The appellant in his defence denied the entire occurrence and stated that a false case has been initiated against him.

4. On consideration of the evidence adduced on behalf of the prosecution and relying on the evidence of P.Ws. 4, 5 and 6, the learned Sessions Judge, found the appellant guilty of the charge and convicted him. So far as compliance of mandatory provision such as Sections 42, 50 and 55 of the Act are concerned, the learned Sessions Judge categorically found that all the mandatory provisions had been complied with prior to and at the time of search and seizure.

5. Mrs. B. Dash, learned counsel appearing for the appel¬lant challenged the findings basically on two grounds, (1) there was non-compliance of Section 42 of the Act which is mandatory in nature and such non-compliance is fatal to the prosecution case and (2) there is also non-compliance of Section 50 of the Act and therefore such mandatory provision having not been complied with, prosecution case is not to be accepted. Learned counsel for the State on the other hand, referring to the evidence on record, submitted that there has been sufficient compliance of the aforesaid two provisions of the Act and therefore, there is no re