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In view of the nature of evidence adduced by P.W.11, I am of the humble view that his evidence is no way helpful to the prosecution and therefore, not acceptable.

(iv) As discussed above, the evidence of the other official witnesses to the search and seizure is found to be not satisfactory. The only evidence in that respect left out is that of P.W.14 Trinath Mishra, the Inspector in charge of Jarada police station.

P.W.14 has stated about the receipt of reliable information regarding transportation of ganja in three vehicles from Visakhapatanum side towards Bhubaneswar which he entered in the station diary of the police station as S.D.E. No.120 dated 06.09.2009. He further stated about intimating the fact to Superintendent of Police, Berhampur and S.D.P.O., Chikiti over telephone which he entered in the station diary entries no.121 and 122 and he also submitted the report to those authorities which found mentioned in S.D.E. No.120 as per dispatch register no.1095 and 1096 respectively. He further stated that requesting S.D.M., Berhampur to depute one Executive Magistrate to remain present during search and seizure, he immediately along with other police officials left the police station in police jeep without obtaining any search warrant from the Court as there was no sufficient time to obtain search warrant and there was every possibility of escape of the culprits with the contraband articles.

The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."

In view of the settled position of law, now it is to be seen whether the contentions raised by the learned counsels for the appellants that there is non-compliance of mandatory provision under section 42(1) and 42(2) of the N.D.P.S. Act is sustainable or not.

P.W.14 has come up with a case of compliance of section 42 of the N.D.P.S. Act in his examination in chief but in cross-examination, he has stated that he reduced the information to writing at the police station but he did not remember through whom he sent the written information to his higher authority and that he had not received any information regarding endorsement from his higher authority relating to the receipt of information. He further stated that the office of the S.D.P.O., Chikiti is about 20 kms. from Jarada police station. P.W.16 was the S.D.P.O., Chikiti who took charge of investigation of the case on 07.09.2009 from P.W.14 and he stated that the distance between Jarada police station and his office at Chikiti is 25 kms. and he further stated that there is nothing on record to show on which basis he went to Jarada police station and took charge of investigation of the case. The relevant station diary entries nos.120, 121 and 122 dated 06.09.2009 which were stated to have been made at Jarada police station by P.W.14 after receipt of reliable information regarding transportation of ganja and also regarding intimation given to the official superior have not been proved in the case. The entries of dispatch register nos. 1095 and 1096 regarding sending intimation to the official superior have also not been proved. No report with the copy of the S.D. Entry No.120 dated 06.09.2009 alleged to have been sent by P.W.14 to the office of S.P., Berhampur and S.D.P.O., Chikiti has been proved in the case. Nobody from the office of S.P., Berhampur has been examined to substantiate regarding receipt of any written information from P.W.14. The S.D.P.O., Chikiti who has been examined as P.W.16 is also silent regarding receipt of any written information as contemplated under section 42 of the N.D.P.S. Act from P.W.14.

Therefore, there is no corresponding documentary evidence in support of the oral evidence led by P.W.14 that he made station diary entries after receipt of reliable information relating to transportation of ganja in three vehicles and regarding dispatch of the report with the copy of the station diary entry to S.P., Berhampur and S.D.P.O., Chikiti. Since the total non-compliance of requirements of sub-sections (1) and (2) of Section 42 of the N.D.P.S. Act is impermissible particularly when the information was received when the police officer was in the police station with sufficient time to take action or where the reliable information calls for immediate action and there is no sufficient time to obtain search warrant or authorization and he has reason to believe that delay would result in the goods or evidence being removed or destroyed and it would not be feasible or practical to take down in writing the information given to him, he could take action as per clauses (a) to (d) of Section 42(1) of the N.D.P.S. Act and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior as held in case of Karnail Singh (supra). P.W.14 has stated that as there was no sufficient time to obtain search warrant from the Court and there was every possibility of escape of culprits with the contraband articles, he immediately along with other police officers and staff left the police station in the police jeep and in that respect station diary entry no.123 was made. The said station diary entry has not been proved in the case. P.W.14 has not stated about sending the copy of recording of ground of belief to his immediate official superior. Thus mere oral evidence of P.W.14 in absence of proof of corresponding documentary evidence is not sufficient to hold regarding compliance of the mandatory provisions of section 42 of the N.D.P.S. Act.

In the present case P.W.14 himself was the Inspector in Charge of Jarada police station and the contraband articles were seized within the local limits of his police station. He has stated that the seized properties were kept inside the malkhana of the police station after entering the same in the property register vide mal item no.51/2009 and kept in safe custody vide S.D. Entry No.132. He has stated that he had entered in the station diary book that he had kept the seized properties in the malkhana. Neither the relevant station diary entry nor the malkhana register has been proved in the case. P.W.16 has stated that on 07.09.2009 he produced the seized exhibits before the Court and on the same day at night, he kept the seized exhibits at Baidyanathpur police station on the direction of the Court as it was late and that the seized exhibits were kept in safe custody in Baidyanathpur police station malkhana after sealing the same properly. He further stated to have received the seized exhibits from Baidyanathpur police station on 08.09.2009 at 11.00 a.m. and produced the same before the S.D.J.M., Berhampur at 12.00 noon. Neither the Inspector in Charge of Baidyanathpur police station has been examined to prove regarding safe custody of the seized articles in the malkhana nor the malkhana register of Baidyanathpur police station has been proved in the case. P.W.16 has stated that he has not seized the malkhana register of Jarada police station on the day he took charge of investigation. He further stated that Benudhar Parida was in charge of malkhana of Jarada police station but he has not examined him. He further stated that the I.I.C. of Baidyanathpur police station did not put his official seal on the seized sample ganja and bulk ganja. The order sheet of the learned Special Judge, Berhampur indicates that the seized articles were produced on 07.09.2009 in his residential office at 10.05 p.m. and a prayer was made by the S.D.P.O., Chikiti for sending the samples already drawn for chemical analysis to the R.F.S.L., Berhampur and to receive the seized articles in the Court malkhana. The learned Special Judge directed for production of the samples before the S.D.J.M., Berhampur on 08.09.2009 for sending the same for chemical analysis and to produce the seized articles to be kept in Court malkhana. The I.O. was directed to keep the seized articles and the samples drawn in safe custody till then. When the articles were seized on 06.09.2009 and the first information report was lodged on that day itself and P.W.16 took charge of investigation of the case on 07.09.2009 at 8.45 a.m., it is not understood as to why the seized articles along with the sample packets were produced in the night at 10.05 p.m. in the residential office of the learned Special Judge, Berhampur. It was the duty of the prosecution to adduce cogent evidence regarding safe custody of the seized articles along with sample packets in the malkhana of Jarada police station as well as Baidyanathpur police station.