Criminal Appeal (SJ) No.211 of 1999 ~~~~~~ Against the judgment of conviction dated 06.08.1999 and order of sentence dated 07.08.1999 passed by Sri Madan Mohan Choudhary, learned 2nd Additional Session Judge, Ara in N. D. P. S. Case No. 16 of 1993. ~~~~~~ 1. Bhola Yadav, Son of Sri Munna Yadav. 2. Yogendra Yadav, Son of Sri Bhola Yadav. Both resident of village Motitola, P. S. – Arrah Town in the district of Bhojpur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Akhileshwar Prasad Singh, Sr. Advocate. Mrs. Anita Kumari Singh, Advocate. For the Respondent : Mr. Suresh Prasad Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 20 B of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for three years and three months and ordered to pay fine of Rs.1,000/- and in default to undergo rigorous imprisonment for three months each. 3. The prosecution case as alleged by the informant is that on secret information that some criminals have taken shelter along with fire arms in the house of the accused Bhola Yadav, the police raided the house of Bhola Yadav and from the search of the house recovered 54 Puriya of Ganja in a room in which the appellants were residing and sleeping. The said 54 Puriya of Ganja each containing about 150 gm of Ganja. 4. The First Information Report was lodged and after investigation the charge- sheet was submitted. During the trial two witnesses were examined. P. W. 1 is the 2 informant and P. W. 2 is the seizure list witness who was declared hostile as not supported the prosecution case about the recovery of Ganja. P. W. 1 stated in his evidence that he raided the house and recovered 54 Puriya of Ganja in polythene, and sealed it separately after preparing the seizure list and arrested the accused persons. He has proved the fardbeyan, seizure list and the formal First Information Report. However, he has stated that the sample was given to the I.O. but the sample has not been produced before the court. However, the I.O. has not been examined and there is no evidence whether the said sample was sent for chemical examination or not and there is no report of the seized article whether it was Ganja. However, the trial court after considering the evidence convicted the appellants and sentenced as stated above. 5. Learned counsel for the appellants, however, contended that the seized Ganja was not sent for chemical examination and no report has been received whether the seized article was Ganja and hence the conviction under the N.D.P.S. Act is not maintainable. It has further been contended that only 150 gm. Ganja was recovered and hence it is less than small quantity as the limits for Ganja is 1000 gm. as mentioned in the table at serial no. 55. It is submitted that earlier the small quantity of Ganja was 500 gm. and the recovery is only 150 gm., which is less than the small quantity and hence the conviction if made for 150 gm., then the sentence can only extend to six months and on that ground also the impugned order is not sustainable. 6. Learned counsel for the State, however, does not dispute the proposition of both law and fact. It is apparent that the I.O. has not been examined and there is no evidence whether the Ganja collected was sent for chemical examination. However, no report has been brought on record or proved whether the recovered material was Ganja and hence non-compliance of Section 55 of the N.D.P.S. Act. However, the 3 requirement of Section 52 A and 55 of the N.D.P.S. Act has not been observed nor it has been mentioned where the Ganja was kept during investigation nor it was stated that it was sent for chemical examination and moreover the conviction for possessing small quantity is only 150 gm., if it is established that the seized article was Ganja. However, having regard to the fact that the article seized is not established whether it is Ganja, hence the order of conviction and sentence recorded by the lower court is not sustainable and is hereby set aside. Accordingly, this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 21st October, 2011. N.A.F.R./Kundan.