Criminal Appeal (SJ) No.220 of 1996 Against the judgment dated 28.08.1996 passed by Sri P.N. Yadav, Sessions Judge- cum-Special Judge, Nawadah in Special Case No. 10 of 1995. 1. Anandi Singh son of Gaya Singh. 2. Gaya Singh son of Manshi Singh both R.O.V Katghara, P.S. Sitamarhi dist-Nawadah .... .... Appellants Versus State Of Bihar .... .... Respondent/s For the Appellants : Mr.Shailendra Kumar, Adv. For the Respondent : Mr. Sujit Kumar Singh, A.P.P HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the respondents. The appellant has been convicted under Section 20 of the N.D.P.S Act for alleged cultivation of the Ganja by the appellant No. 1 and alleged possession of the Ganja in his possession to the tune of Rs. 3 lac and has been sentenced to undergo R.I for four years and pay fine of Rs. 5, 000/-. The prosecution case as alleged that the police raid a trap to execute a warrant of arrest against Anandi Singh and one Shyam Sundar Singh. As soon as the police and the raiding party arrived at the vicinity of the 2 house of the accused Anandi Singh and during the search 10 Ganja plant were found situated in the house of Anandi Singh and it transpires that the informant cultivates ganja plant, prepares ganja and sold the same on the basis of the written report of the informant P.W. 3 the officer-in-charge Sitamarhi (Narhaut P.S.) instituted a first information report and the investigation proceeded and taken up by P.W. 5 Maner Nath Tripathi. In course of investigation Anandi Singh was arrested and from his person 50 Gram of dry Ganja was recovered kept in the polythene in his pocket. After the investigation charge sheet submitted, cognizance taken and thereafter charge was framed. However during the trial five witnesses were examined and after considering the oral and documentary evidence and submission of the parties the order of conviction and sentence recorded by the trial Court. The learned counsel for the appellant contend that the ganja plant seized was neither sealed nor sampled and further the dry ganja was seized from person of Anandi Singh was not search before Magistrate nor any officer was 3 asked from accused hence is violation of S 42 and the seized ganja neither sealed nor sampled to send to chemical analyst and hence the report of chemical analyst is not reliable to be accepted. Hence the prosecution failed to establish that the seized articles were recovered from the person of Anandi Singh. There are five witnesses examined in the case P.Ws. 1 and 2 are co-villager who are witness of search and seizure but there is no whisper that the said Ganja plant which was seized was were sealed or sampled P.W.3 though supported the prosecution case that the search and seized ganja plant in presence of two independent witnesses and prepared seizure list but there is no undue that said seized ganja plant was ever sealed and sampled at P.O and further evidence of P.W.3 that Gaya Prasad arrested and search was made in his person and 50 grams of dry ganja seized from his pocket. However, there is no evidence that he was given any opportunity whether he want that search be made before neighbor or there is any evidence .that the seized ganja was ever sealed and sampled at the P.O. & there is no evidence where the seized ganja was sealed and sampled 4 and sent and where the ganja were kept. P.W.5 is the I.O has stated that seized ganja plant was taken by O/c and kept at police station without any seal then sample was sent by I.O. However whether the sample was sent is not in evidence. Hence in view of the fact that the ganja plat and ganja seized from person neither sealed not sampled at the P.O or at Police Station and was kept at Police station without any seal and when the sample sent is not in evidence then the report of analyst is not worthy of reliance. Having regard to the fact since the ganja seized was neither sealed nor sampled at the P.O. either before the witnesses or the accused and the ganja was taken by the Officer In-charge without having been sealed. There is no evidence that where the ganja was seized. However, the date of occurrence is 06.11.1995 and the I.O has sent ganja for chemical examination on 2/12/1995 but there is no evidence that where those ganja were kept during the period. Hence the chemical report is neither reliable not acceptable. Hence the order of conviction recorded on the basis of the chemical analysis report it 5 is neither reliable nor trustable and the order of conviction and sentence is unsustainable hence the order of conviction and sentence is set aside. Appeal Allowed. Patna High Court, Patna, Dated the 4th July, 2011 NAFR/Prakash (Gopal Prasad, J.)