The burden of proof lies with the prosecution to establish the integrity of seized evidence; failure to prove the safe keeping of samples leads to doubts undermining the conviction under the N.D.P.S. Act.

JUDGMENT :

D.Dash, J.

1. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 5th August, 2002 passed by the learned Special Judge, Cuttack in G.R. Case No.458 of 2001 (41T/2001) corresponding to Chauliaganj P.S. Case No.36(2) of 2001.

The Appellant (accused) thereunder has been convicted for commission of the offence under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for ten (10) years and pay fine of Rs.1,00,000/ (Rupees One Lakh) in default to undergo further rigorous imprisonment for two (2) years for commission of the said offence.

2. PROSECUTION CASE:-

On 27.03.2001, he Inspector-in-Charge (I.I.C.) of Chauliaganj Police Station (P.W.5) during noon hour received an information from reliable sources that the Appellant (accused) had kept huge quantity of ganja in his house. Having entered this fact in the Station Diary Book maintained at the P.S., the I.I.C. (P.W.5) sent an extract of the same to the Additional Superintendent of Police, Cuttack (P.W.4) and thereafter he with the Assistant Sub- Inspector (A.S.I.) of Police (P.W.1) and other staff went to Village- Nehru Palli where the house of the accused was situated. They surrounded the house of the accused and asked the local persons to remain present to be witnesses. The house, being surrounded by the people of the locality, the police personnel were not allowed to conduct the search of the house. The matter, being immediately informed to the Additional S.P. (P.W.4) and the Sub- Collector, being contacted to depute an Executive Magistrate to conduct the raid, the Additional S.P. (P.W.4) and the Executive Magistrate (P.W.3) arrived at the spot around 1.158 p.m. The I.I.C. (P.W.5) apprised the matter to the Executive Magistrate (P.W.3), who then called the accused to come out of the house by expressing the desire that his house would be searched. The police staff with the Magistrate (P.W.3) then entered into the house and recovered a ganja bag with bamboo handle, which was kept at the corner of the room of the house. The contents of the bag, being suspected to be ganja, the same were weighed and the net weight of the contents (ganja) came to be 4 kg and 900 grams. The I.I.C. (P.W.5) then collected two parts of samples each weighing 24 grams from the contents of the bag and then those samples were packed and sealed so also the bag containing the bulk quantity of ganja was seized by using personal brass seal of the I.I.C. (P.W.5), which was then handed over to the Magistrate (P.W.3). The bag containing the ganja and the sample packets were then seized.

The I.I.C. (P.W.5) drew plain paper FIR and on return to the P.S. with the accused and the seized articles including the contraband ganja, the matter was reported to the Superintendent of Police. Thereafter, the investigation of the case was entrusted to another Sub-Inspector (S.I.) of Police (P.W.6).

The I.O. (P.W.6) then, having taken the charge of the investigation, received the sample packets and the bag and kept the same in the Malkhana of the P.S He (P.W.6) visited the spot, sent the samples for chemical examination and on completion of the investigation, submitted the Final Form placing this accused to face the trial for commission of the offence under section 20 (b) of the N.D.P.S. Act.

3. The defence plea is that of complete denial and false implication. However, the accused has taken a plea that the house wherefrom the ganja has been seized does not belong to him.

4. The prosecution, during trial, in order to establish the charge agains