Criminal Appeal (SJ) No.109 OF 1995 (Appeal against the Judgment and Order dated 29.4.1985 passed by the Sessions Judge, Patna, in Special Case No. 16 of 1993) GOPAL MANDAL, SON OF ASHRAFI MANDAL, RESIDENT OF VILLAGE BHANDARI, P.S. BELSON, DISTT. SITAMARHI. ------ APPELLANT. Versus THE STATE OF BIHAR ----------RESPONDENT For the Appellant : Mr. Ajay Kumar Thakur, Adv. Mr. Ravi Ranjan, Adv. For the State : Mr. Suraj Prasad Singh, A.P.P. ------ P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard. The Appellant has been convicted under Section 22 of the N.D.P.S. Act, 1985 and sentenced to rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- in case of default a further period of one year rigorous imprisonment by a Judgment dated 29.4.1985 in Special Case No. 16 of 1993 passed by Sessions Judge, Patna. The prosecution case is that on 24.7.93, the Informant searched the person of the Appellant on a tip off and from right side pocket of his Pant four small packets and from left side pocket, three packets allegedly Heroin was recovered from his person. The samples from the packets were sent to the FSL and after report received, it was opined to be brown sugar. During trial the prosecution examined six witnesses out of whom PW-1 is the seizure witnesses. PW-3 is tendered. 2 PW-5 and PW-6 are the Investigating Officer and PW-2 is a Hawaldar on the factum of occurrence. On going through the evidence of PW-5 who is the Informant of the present case, I find that he stated that out of seven packets recovered from the possession of the Appellant, only three packets of samples were prepared which were sent to forensic for test. Under the circumstances, the weight of the recovered articles cannot be conclusively determined. In view of such serious irregularity in preparing sample of the seized article I am not inclined to accept the prosecution case. It also appears that Appellant has remained in custody for about five years. Under the circumstances, the Appeal is dismissed even accepting that the article recovered was Heroin to the period already undergone by him since the sentence could only be determined on the quantity of the articles seized. In the result, the Appeal is dismissed with modification as aforesaid. However, the Appellant shall not be required to pay any fine. Patna High Court, Patna Dated, the 19th April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)