Compliance with mandatory provisions of the NDPS Act is essential for establishing the prosecution's case, particularly the requirement for drawing samples in the presence of a Magistrate, which was not observed.

JUDGMENT :

G. Satapathy, J.

1. This appeal is directed against the judgment of conviction and order of sentence dated 20.07.2018 passed in C.T. Case No.06 of 2016 (NDPS)/T.R. No.08 of 2017.

By the aforesaid judgment, the learned Additional Sessions Judge-cum-Special Judge, Dharamgarh convicted the appellants for commission of offence punishable under Section 20 (b)(ii)(C) of the NDPS Act and sentenced each of them to undergo Rigorous Imprisonment (RI) for ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh) each, in default whereof, to undergo further RI for one year.

2. The prosecution case in brief is that on 03.06.2016 early in the morning, getting a tipoff about transportation of Contraband Ganja in the jungle road, the SI of Excise (PW5) along with the staffs while being on patrolling duty, proceeded to the spot and found the appellants and some other persons carrying Contraband Ganja in Bharas(an instrument having two panes hanging on either side of a wooden stick resembling weighing scale and used for carrying goods). Accordingly, PW5 procured the weighman after apprehending the appellants-convicts, and weighed the Contraband Ganja which came to 367Kgs. In the course of detection, PW5 also drew samples in duplicate each weighing 25 grams out of the 18 packets of Contraband Ganja recovered from the convicts; all total 36 sample packets and sealed the same in presence of the witnesses with his personal brass seal and, thereafter, he also sealed 8 packets of bulk Contraband Ganja with his personal brass seal. After observing all formalities, PW5 seized the Contraband Ganja as well as the sample packets and arrested the accused persons/convicts and forwarded them to the Court and, thereafter, he prayed to the concerned Magistrate to send the collected sample packets to State Drugs Testing and Research Laboratory, Bhubaneswar (SDTRL) for chemical examination. The chemical examination report was also received in the Court vide Ext.19. On completion of investigation, PW5 submitted the final prosecution report against the convicts resulting in trial in the present case after their denial to plead guilty to the charge for offence under Section 20 (b)(ii)(C) of the NDPS Act, since commercial quantity of Contraband Ganja was alleged to have been seized from the possession of each of the convicts.

3. In support of its case, the prosecution examined altogether 5 witnesses vide PWs.1 to 5; proved 19 documents under Exts.1 to 19 and identified the sample packets under MOI to XVIII as against no evidence whatsoever by the defence. The plea of the convicts in the course of trial was denial simplicitor and false implication. Of the witnesses examined by the prosecution, PW5 is the raiding officer-cum-IO in this case, whereas PWs.3 and 4 are the two Excise Officials, who had participated in the raid and seizure of Contraband articles. On the other hand, PWs.1 and 2 are the two independent witnesses associated with seizure of Contraband articles from the convicts.

4. After appreciating the evidence on record upon hearing the parties, the learned trial Court by heavily relying upon the evidence of official witnesses convicted the appellants for offence under Section 20 (b)(ii)(C) of the NDPS Act and sentenced each of them to the punishment indicated in the first paragraph.

5. In assailing the impugned judgment of conviction and order of sentence, Ms. Avinanda Mohanty, learned counsel appearing on behalf of Mr. S.K. Mund, learned counsel for the appellants, however, strongly submits before this Court that not only the prosecution is unable