1. The appellant stands convicted Under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in brief, 'the Act') and sentenced to undergo rigorous imprisonment (for 10 years and to pay a fine of rupees one laKh with defaulting sentence.

2. On getting confidential information that the appellant was engaging himself in illicit trafficking of heroin, the police squad consi- sting of B. Rath, Inspector, C. I. D. (Crime Branch), Cuttack, another Inspector. Deputy Superintendent of Police and Ors. raided the grocery shop of the appellant attached to his house at Labanikhia Chhak in Puri on 4-1-1990 at about 10. 30 a. m. . In course of search of the shop in presence of the appellant, heroin weighing 7-5 grams kept inside one Amul Spray tin which contained black pepper was recovered. The said contraband article was seized and after taking sample, the same was sent for chemical examination. The Chemical Examiner reported that it was heroin (diacetvl morphin). After completion of investigation, the appellant was placed for trial to face charge Under Section 21 of the Act which has ended in conviction and sentence as aforementioned.

3. The appellant denied the charge in entirety.

4. Prosecution examined four witnesses on its behalf. PW 1 was a witness to the seizure. PWs 2 and 3 were respectively the Constable and the Inspector attached to the C. I. D, (Crime Branch), Orissa, Cuttack in Narcotic Squad. PW 4 was the Deputy Superintendent of Police attached to Crime Branch, Cuttack. All the aforesaid three police personnel were witnesses to the search and seizure of the heroin recovered from the possession of the appellant. It may be noted here that the Inspector B. Rath expired just before the commencement of the trial.

5. Considering the evidence of the prosecution witnesses, the trial Judge held that the contraband article in question was recovered and seized from the possession of the appellant.

6. Shri Misra, learned counsel, relying on a decision of the Rajasthan High Court reported in 1992 (1) Crimes 537 (Nathiya and Anr. v. The State) contended that the conviction of the appellant cannot be supported in law as the investigation was conducted by the same officer who recovered and seized the alleged contraband article.

It may be stated that there is no specific provision in the Act interdicting the officer who recovers and seizes contraband article to make investigation into the case. It is now well settled position in law that defect of illegality in investigation does not affect the' competence and jurisdiction of the Court to hold the trial. The Supreme Court in M. N. Rishbud v. State of Delhi, AIR 1955 SC 196 observed :

"If, therefore, cognizance is in fact taken; on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is Well settled........

The learned counsel was not able to show as to how the appellant was prejudiced due to the conducting of investigation by the same officer who recovered and seized the article in question. In view of the aforesaid position. I do not find any merit in this contention which is hereby rejected.

7. It was next contended that the provisions of search, secure contained in Sections 42 and 50 of the Act are mandatory in character and those provisions having been not followed, the trial is vitiated. In view of the Full Bench decision of this Court in (Banka Das v. State of Orissa) 75 (1993) CLT 226 wherein it has been held by majority that non-compliance of the requirements of the aforesaid provisions is ipso facto fatal to the prosecution, Shri, Mishra fairty and rightly further pursue the point.

8. Shri Mishra then submitted that the prosecution having failed to establish that the contraband article recovered from the possession of the appellant was the very article sent for chemical examination, the appellant cannot be held guilty for possession of the heroin in question. The learned Standing Counsel appearing for the State contended that the seizure of the article in question has been duly proved and there is no scope to doubt that the seized article was heroin which, was in possession of the appellant. In view of the aforesaid rival contentions it is necessary to scrutinise the relevant evidence.

PW 1 has stated that about two year back police seize something but he was not present at the time of seizure and his signatures on a paper and on packets were taken by the police. He has further deposed that at,ter seizure of the articles, police kept the same in Amul dibba'. In the Gross-examination, he has stated that he gave his signatures when the police asked him to sign and he had not seen the seized articles. From his evidence, it is quite clear that he has not supported the prosecution at all. The next evidence is that of PW 2, the constable who had accompanied raiding party. He has stated that at about 10.30 A.M. the shop of the appellant was surrounded by the police and at the time of search and seizure, two witnesses were called to be present. They where PW 1 and Satyanarayan Das. As already indicated above, PW 1 has not at ail supported the prosecution with regard to search and seizure and the prosecution has not examined Satyanarayan Das, He (PW 2) has stated that during search, the Inspector (B. D. Rath who died, before the trial) recovered from Amul tin two packets concealed with some black pepper, one packet being wrapped with red thread and the other With black thread. When the packet wrapped with black thread; was opened' it was found that there were nine small packets in it and the other packet contained six small packets. The Inspector weighed the contraband articles contained in the packets whose weight was 7.5 grams. They were seized as per seizure list. Ext. 1 in presence of the witnesses who gave their signatures on the packets arid the Inspector sealed those packets and affixed his specimen seal thereon which was handed over to PW 1. Surprisingly, PW 1 has not breathed a word about any seal being handed over to him. On the contrary,; as already noted, he denied his knowledge even about search and seizure, PW 3 is another Inspector who was in the raiding party. He has stated that he was present when search of the shop of the appellant was in progress and Rath Babu (meaning the deceased Inspector) traced the Amul tin kept near the stool in which there was objectionable article. There were 15 packets out of which six packets weighing about 3 grams were wrapped with red thread and the remaining 9 packets weighing 4.5 grams were wrapped with black thread. He has . also stated m the same vein as that of PW 2 by mentioning about the seizure list Ext. 1 and the witnesses who gave their signatures in the list. He has deposed that the packets were sealed and the Inspector put his specimen seal and gave the seal to zima of PW 1. According to him two Witnesses, namely; Sabyasachi Mohapatra and priyabrata Kar, were present during the search. The prosecution, however has not examined any of them. The last witness is PW 4 who was the Deputy Suprintendent of Police attached to Crime Branch, Cuttack who accompanied the raiding party. He has stated that Inspector Rath went inside the shop room of the appellant and recovered two packets which contained six and nine small packets from inside the Amul Dibba kept inside the stool on which the appellant was sitting. The Inspector took weighment of the contraband article which came to 7.5 grams. Seizure list was accordingly prepared vide Ext. 1 and he has proved the handwriting and signature of the Inspector who is since dead. This is all the evidence relating to signature derived from PWs 2 to 4. In the seizure list. Ext. 1, the appellant has out his signature (marked as Ext. 1/3) as deposed by PW 2.

9. The next crucial and decisive question is whether the articles seized as per Ext. 1 were the articles sent for chemical examina- tion. The evidence or PWs 2 to 4 is relevant for this purpose. Shri Misra, contended that the articles seized on 4-1-1990 were produced before the Sub-divisional Judicial Magistrate on 9-1-1990 and in absence of any evidence that it was in safe custody, prosecution case should be thrown overboard. The learned Standing Counsel on the other hand submitted that the evidence of PW 2 establishes that the sealed packets were duly produced before the Sub-divisional Judicial Migistrate and there is nothing to doubt the reliability of inspector Rath. PW 4, the the Deputy Superintendent of Police has stated that the sealed articles were sent to Forensic Science Laboratory for examination through the Subdivisional Judicial Magistrate, Puri, in his memo No. 40 dated 9-1-1990 vide Ext. 3 The order of the learned Magistrate dated 9-1-1990 reads as follows ;

"Seen the prayer of I.O. who prays to send the seized heroin to the Director F. S. L. for C. E. The seized heroin was produced before me packed and sealed in my presence in my seal. The sealed packet was made over to I. O. to send it to Director, F.S. L., Rasulgarh through special messenger.'' It appears from the records of the Sub divisional Judicial Magistrate that the appellant was produced before him on 5-1-1930 and in the forwarding petition filed by Inspector Rath, there is no mention of production of any sealed/seized packets although there is mention of recovery of contraband article from the appellant. It is only in the petition filed before the Sub-divisional Judicial Magistrate on 9-1- 1990 prayer was made to send the seized samples for chemical examination. Thus from the aforesaid, there is no iota of doubt that the seized/sealed articles were produced before the Sub-divisional Judicial Magistrate on 9-1-1990, i. e. five days after their seizure. In paragraph 4 of the deposition PW 2 has stated that on the next day of seizure (meaning 5-1-1990) the articles were brought to the Sub-divisional Judicial Magistrate, Puri. The said evidence is not at all acceptable in view of the evidence of PW 4 as well as the orders passed by the Sub- divisional Judicial Magistrate on 9-1-1990 and the contents of the petitions filed by Inspector referred to above. 1 have, therefore, no hesitation to hold that the seized articles were produced before the SDJM on 9-1-1990. In whose custody were those seized articles during the interregnum ? PW 3 In his cross-examination has admitted that after the packets were separately sealed they all came to the Town Police Station and "Rath Babu (meaning the deceased Inspector) has not handed over the articles to the police station". It is for the prosecution to explain that the seized articles were in safe custody from 4-1-1990 till they were produced in Court on 9-1-1990. There is absolutely no evidence in this regard. In Valsala v. State of Kerala, (1993) 6 OCR 457, the Supreme Court was dealing with a case where there was no evidence to show with whom the seized article (brown sugar) was lying and "even assuming that it was in the custody of PW 6, the Officer-in- charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there". The Court observed that "suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link". In view of the aforesaid lacunae in the prosecution, the Court set aside the conviction. As indicated above/in the case at hand,there is no evidence as to in whose custody the the seized articles were kept till they were produced before the Sub- divisional Magistrate. It is for the prosecution to lead evidence and explain it. Since Inspector Rath did not even produce and deposit it in the police station, the apprehension that there was possibility of tampering with the seized articles cannot be brushed aside. Even the specimen seal which was said to have been handed over to PW 1 (PW 1 himself does not breathe a word about any handing over of specimen seal to him ) was not produced before the Sub-divisional Judicial Magistrate. A vital and decisive link is missing on account of which it cannot be held beyond reasonable doubt that what were seized from the possession of the appellant were the very articles sent for chemical examination. The appellant is thus entitled to benefit of doubt.

10. The conviction and sentence of the appellant cannot be sustained which are hereby set aside. He is acquitted of the change, The appeal is accordingly allowed.