Criminal Appeal (SJ) No.35 of 1997 Against the judgment of conviction and sentence dated 21. 01. 1997, passed by Shri D.P.S. Chaudhary, Sessions Judge-cum-Special Court, N.D.P.S. Act, Muzaffarpur, in Excise Case No. 11/1994/Trial No. 36/1994/33 of 1995. Prem Nath, son of Singheshwar Prasad, resident of Mohammadpur, P.S. Sakara, District- Muzaffarpur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. K. N. Diwakar, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 20 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for one year and to fine of Rs. 1,000/- (one thousand) and in default to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged by the informant Excise Official raided the Parchun Gumti on 07. 06. 1994 of the appellant at the bus stand, Muzaffarpur, and six packets of Ganja weighing 15 gms. each in polythene packet was recovered. The seizure list was prepared and on the basis of prosecution report, the 2 case registered and trial proceeded after framing charge. 4. However, during trial four witnesses were examined apart from documentary evidence. Four witnesses were examined as P.W. 1 Md. Mustak Alam, S.I., P.W. 2, Md. Nasim, P.W. 3, Anil Kumar Sinha A.S.I. (Excise) and P.W. 4, Bishwanath Chaudhary, Constable. 5. The defence of the accused that there was no recovery of Ganja from the said Parchun Gumti. 6. However, witnesses supported the prosecution that on secret information about Ganja, they raided and found six packets of Ganja weighing 15 gms. from the Gumti of the appellant. Seizure list was prepared. However, Ganja was not weighed. Seizure list was proved as Ext. 1. But with regard to Ganja, neither sample was taken out from the said Ganja nor was it sent for chemical examination. Sessions Judge taking into consideration the evidence, order of conviction was recorded. 7. Learned counsel for the appellant however contends that no sample from alleged seized Ganja sent for chemical examination nor there is any report of expert that seized article was Ganja and was 3 Psychotropic Substance. Hence prosecution has not been able to prove that seized material was Ganja and hence conviction is not maintainable. It has further been contended that there is violation Section 50 of N.D.P.S. Act, neither information was sent to Magistrate immediately thereafter, nor the appellant was asked for option of search in presence of the Magistrate. 8. However, from the evidence it is apparent that on secret information prosecution party reached and found six packets of Ganja and for which seizure list was prepared. However, objection of the learned counsel for the appellant regarding violation of Section 41, 42 and 50 of the N.D.P.S. Act is concerned, is not of any consequence in view of the fact that Ganja was not recovered from the person of the accused but from the shop. However, P.W. 1 and 4 have accepted in the evidence that said Ganja was seized there, though sealed, but neither any sample was taken out from each packet of seized Ganja nor it was sent for chemical examination and no report of any chemical analysis has been received nor brought in evidence to prove that said Ganja was Psychotropic Substance. Hence the violation of Section 55 of N.D.P.S. Act. 4 9. P.W. 1 in his evidence in para 14 has stated that he had not sent the Ganga to any expert and further in para 11 has stated that he know to identify the Ganja, but he has further stated that he is not an expert. However the law provides to mention that opinion regarding Ganja is the opinion of the expert and if P.W. 1 is not an expert his claim that he know to identify the Ganja is not maintainable in the eye of law and is not opinion of the expert to hold that seized article was Ganja. This is clear violation of Section 55 of N.D.P.S.Act. 10. Having regard to the fact, since the seized article has not been established by the expert nor any report of chemical analysis received, it can not be held that seized article was Ganja required specification to be put under N.D.P.S. Act. 11. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 29th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)