CRIMINAL APPEAL (S.J.) No.296 of 2008 ……………… Against the judgment and order dated 23-01-2008 and 25-01-2008 respectively passed by the Additional District & Sessions Judge-cum-F.T.C. No.I, Motihari, East Champaran in Excise Case No.63 of 2004. ………………… SIKANDAR SAH, son of late Babu Ram Sah, resident of village-Bilashpur,P.S.-Palanawa, District-East Champaran .. .. Appellant Versus THE STATE OF BIHAR .. Respondent …………………… For the Appellant : M/s Dhurendra Kumar and Ashok Kumar Gupta,Advocates For the State : Mr. S.N.Prasad, A.P.P. P R E S E N T THE HON'BLE MR.JUSTICE MANDHATA SINGH Mandhata Singh,J. : The present appeal has been filed against the judgment and order dated 23.1.2008 and 25.1.2008 respectively passed by the Additional District & Sessions Judge-F.T.C.-I , Motihari, East Champaran in Excise Case No.63 of 2004, by which appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years with fine of rupees one lac under Section 23 © of the Narcotic Drugs and Psychotropic Substances Act. In default of payment of fine he is further directed to undergo simple imprisonment for three years. Prosecution case in brief is that on 25-08- 2004 informant Indra Narayan Mishra, Sub-Inspector, 2 Ramgarhwa police station received confidential information that an old Jeep bearing its registration no.ME-14D-2885 is coming from Raxaul towards Ramgarhwa by the driver only having huge quantity of Ganja. To verify the information informant came on N.H.-28A road in east to Ramgarhwa police station along with other police officials. Reported Jeep was stopped while coming from Raxaul side. Its driver was enquired who disclosed his name as Sikandar Sah, appellant. Owner of the Jeep is Bablu Rai. He further disclosed that the owner of the Jeep asked him to take the jeep to Muzaffarpur on hire. Appellant reported his ignorance about remaining of hidden Ganja in Jeep. Jeep was searched by informant in presence of the appellant and the independent witnesses Rakesh Kumar Singh and Ram Ayodhya Prasad. Some provision was made to keep Ganja in the body of the Jeep, which could be searched only after cutting that relevant portion, from where 126 K.G. of Ganja in 33 packets of different weights was recovered. Probability of remaining of Charas or Heroin was also verified by getting opened the packets but nothing like Afim or Charas or Heroin was found. Recovered Ganja was packed in 3 different bags including packets for sample. Seizure list after its preparation was signed by the appellant and witnesses. After investigation charge sheet was submitted and after concluding the trial appellant is convicted for the offence under Section 23© of the Narcotic Drugs and Psychotropic Substances Act, validity of which has been questioned through filing this appeal. The only point to be determined by the court is whether judgment and order of conviction and sentence is liable to be sustained finding the seizure established (proved) in the case. In all six witnesses are examined in the case and they are Md. Khurshid Khan (P.W.1), Khalid Hussain Khan (P.W.2), Ushnendra Kumar Rana (P.W.3), Suresh Nath Majhi (P.W.,4), Sanjay Kumar (P.W.5) and Sikandar Rai (P.W.6). All the six witnesses are police officials and are stating about their presence on the point of recovery. Lacuna or contradiction may have been taken to assail the judgment of conviction and order of sentence but mainly stress is made on behalf of the learned counsel for the appellant about non-exhibition of seizure list as the same was not proved, non-availability of any Forensic 4 report and non-examination of independent seizure list witnesses though Investigating Officer, informant and Paras Sharma who cut the body of Jeep to recover the seized Ganja are also not examined. So, without scrutinizing or testing veracity of witnesses legal points are being taken to consider. It is admitted case that seizure list is not proved, nor there is any Forensic report for being seized material Ganja and non-production of public/independent seizure list witnesses, even named in the charge sheet, namely Rakesh Kumar Singh and Ram Ayodhya Prasad. Save and except explaining the lacuna as laches on the part of the prosecution or the court nothing could be explained if in absence of the above lacunas conviction can be sustained. In my view also once seizure list is not proved, recovery cannot be established that is connected with the third point that independent/public seizure list witnesses are not examined. Further there is no Forensic report on record to show that seized article was Ganja, even sample was taken by the Investigating Officer. In absence of the above material conviction and sentence are not liable to remain sustained. 5 Accordingly, the appeal is allowed, judgment of conviction and order of sentence dated 23-01-2008 and 25-01-2008 respectively are set aside and the appellant is acquitted of the charge levelled against him. As the appellant is in jail, he is directed to be set at liberty forthwith, if not required in any other case. ( Mandhata Singh, J.) Patna High Court,Patna Dated the 3rd February, 2010 A.H. /AFR