CRIMINAL APPEAL No. 20 OF 1998 (In the matter of an application under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 17th December, 1997 and order of sentence dated 18th December, 1997 passed in G.R.Case No. 12 of 1996/01 of 1997 by Shri Bidhu Bhushan Pathak, 3rd Additional Sessions Judge, Aurangabad.) ************ TAPESHWAR SINGH, SON OF LATE RAJ KUMAR SINGH, RESIDENT OF VILLAGE SAHU KARMA, POLICE STATION KASMA, DISTRICT AURANGABAD…….APPELLANT VERSUS THE STATE OF BIHAR……………………………………………………….…RESPONDENT ********* FOR THE APPELLANT :- MS. PUSHPA SINHA, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The appellant is convicted in a case under Section 20 (a) (1) of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as “the Act”) to undergo rigorous imprisonment for three years and also to deposit a find of Rs. 15,000/-, failure to deposit the fine, would further lead to rigorous imprisonment for one year. The prosecution case is that on secret information, the S.I. of Kasma Police Station Raj Kumar Tiwary went to the Baithka of the appellant Tapeshwar Singh in the belief that Tapeshwar Singh was engaged in the plantation of ganja trees. - 2 - The S.I. had given information to the Police Inspector Sheojee Ram on wireless and on the order of Sheojee Ram proceeded towards the village of the appellant. On reaching the village, it is alleged that in the presence of P.Ws. 1 and 2, 23 ganja plants were uprooted and sent for examination to P.W. 4 Abhay Kumar Mishra, the Excise Inspector for determining whether the plants were ganja plants or not. In this case, 11 witnesses have been examined. The relevant witnesses for the purposes of deciding the case would be P.Ws. 1 and 2, the other being the police officials/ constables. P.Ws. 1 and 2 admit that they have signed on a paper which is purportedly the seizure list. These two witnesses, however, disown the fact that they were present at the time when the seizure was made and as such they do not support the prosecution version in its entirety. Two of the constables who were accompanying the police raiding party i.e. P.Ws. 6 and 7 have been declared hostile as they have stated in their deposition before the Court that they do not remember whether any person was arrested at the time of the raid. Moreover, P.W. 7 states that the ganja plants (wrongly mentioned as trees in the order of the Trial Court) were recovered from the `Darwaja’ of the appellant but this witness also does not support the fact whether the ganja plants were found within the boundary of the house or land belonging to the appellant. - 3 - Learned Counsel submits that having searched the alleged premises belonging to the appellant, the plants were sent to the Excise Inspector, who according to the learned Counsel is not the authority who could have determined whether the uprooted plants were ganja plants or not. It is further submitted that neither any tests were carried out nor there is any report which would indicate that a test has been carried out pointing to the fact that the plants uprooted were ganja plants. According to the Counsel for the appellant, the entire case has been engineered at the instance of one Ajit Sinha who was the police Inspector of Kasma Police Station before the posting of the present Police Inspector Sheojee Ram, P.W. 11 and it is at the instance of Ajit Sinha that this entire case has been instituted. To support this statement, the appellant has brought on record Exhibits A, B and B/1 which is the F.I.R. filed against the S.I. Ajit Babu and Ojha jee, Police Officials of Kasma Police Station on 13.01.1993. Although, they were transferred at the time when the present case was lodged. Another aspect of the matter is that the Trial Court relied on the report of the Excise Officers who has opined that the plants are Ganja plants. In my opinion, the Excise Officer in not the competent authority to give such an opinion, especially in view of rule 2(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Therefore, Exhibit-4 which is the alleged report of seized plants can not be circumstances - 4 - to conclusively prove that the so-called plants which were uprooted were Ganja plants. After hearing Counsel for the appellant and the state and on perusal of the evidence, I find that the prosecution case is not supported by the seizure list witnesses and infact I find that even the police constables have not been able to support the seizure from the house/land belonging to the appellant. Moreover, the report with respect to whether the seized plants were ganja plants has been obtained in contravention of the provisions of the Acts and Rules. In view of the aforesaid findings, I set aside the order and judgment dated 17.12.1997 passed by the 3rd Additional Sessions Judge, Aurangabad in G.R. Case No. 12 of 1996/01 of 1997. The sentence and fine are set aside. The appellant is also discharged from the liabilities of the bail bonds furnished in this case. In the result, the appeal is allowed. ( Sheema Ali Khan, J. ) Patna High Court Dated, the 24th March, 2009 N.A.F.R./ Anand