Criminal Appeal (SJ) No. 225 OF 1996 In the matter of an appeal under Section 36-B of Narcotic Drugs and Psychotropic Substance Act, 1985. ************ 1. Muneshwar Kumhar @ Muneshwar Kumar, S/o Late Gurucharan Kumhar, R/o Village-Dubarani Bar Pathar, P.O. and P.S.-Bar Pathar, District-Golaghat (Assam) 2. Sannato Kumar, S/o Late Ramdas Kumar, Village- Dubaranipur Pathar, P.O. & P.S.-Bar Pathar, District- Golaghat (Assam). ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Ravi Shankar Prasad, Adv. For the Union of India: Mr. Dwivedy Surendra (C.G.C.). ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Section 20 of Narcotic Drugs and Psychotropic Substance Act and sentenced to RI for four years and a fine of Rs. 25,000/- in default of which further imprisonment of six months by the Sessions Judge-cum-Special Judge, Purnia in Special Case No. 8 of 1992 by a judgment dated 25.09.1995. 2. The case of the prosecution is that on 01.09.1992 a truck bearing Registration No. AS-01-8-1646 was intercepted from which 35 packets each weighing 10 Kgs. of ganja were recovered. The appellants were allegedly Driver and Khalasi respectively. 3. During trial the prosecution in all examined sixteen witnesses out of whom P.W. 4, P.W. 5, P.W. 6, P.W. 7, P.W. 8, P.W. 10, P.W. 11, P.W. 12, P.W. 14, P.W. 16 have been merely tendered for cross-examination. P.W. 13 is the search and seizure witness but he did not support the case of the prosecution. In effect the Court is left only with the evidence of P.W. 1, P.W. 2 and 2 P.W. 9 out of which P.W. 1 and P.W. 2 are on the point of interception of the truck and recovery of the incriminating articles. P.W. 2 has stated in his cross-examination that the samples were taken from the alleged recovered ganja and sent for testing. P.W. 9 is the leader of the trap party and had supported the fact that 35 packets of ganja being 350 Kgs. were recovered from the truck in which the appellants were seated. He has not stated anything as to how the samples were taken of the alleged seized articles. Evidently there is a prescribed procedure in which samples are to be extracted from incriminating articles seized by the said raiding teams and the same was not followed by them since only one sample appears to have been prepared of the 35 packets. 4. Under the circumstances, it is difficult for the Court to conclude about the exact weight of the articles and as to whether the ganja recovered was of small, medium or commercial quantity. However, since this would only determine the sentence I am not inclined to interfere with the conviction when the prosecution has satisfactorily proved the factum of seizure and recovery of ganja. 5. In the result, the appeal is dismissed but with modification in substantive sentence to the period that has already been undergone by the appellants and the sentence of fine is set aside for reasons stated above. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 19th May, 2011. NAFR/Vikash/-