CRIMINAL APPEAL No.55 OF 1998 (In the matter of appeal under Section 379(2) Of the Code of Criminal Procedure against the judgment of conviction dated 07th January, 1997 and order of sentence dated 08th January, 1997 passed by Shri Harballava Chandra Prasad, 4th Additional Sessions Judge, Aurangabad in G.R. Case No. 10 of 1996/07 of 1997) ********* RAMA SHANKAR MISHRA, SON OF RAM DAYAL MISHRA, RESIDENT OF VILLAGE BERAI, POLICE STATION TARARI, DISTRICT BHOJPUR (ARRAH) ………………………………………………………………APPELLANT VERSUS THE STATE OF BIHAR ………………………………OPP. PARTY ************ FOR THE APPELLANT :- MR. UMA SHANKER VERMA, ADVOCATE FOR THE S T A T E :- MR. RAJENDRA NATH JHA, A.P.P. ************ 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 sole appellant has challenged the judgment of conviction dated 07.01.1998 and order of sentence dated 08.01.1998 passed in G.R. Case No. 10 of 1996/07 of 1997 by which he has been convicted under Section 27(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) to undergo rigorous imprisonment for three years and also to 2 pay a fine of Rs. 10,000/-, and in default of payment of fine, further to undergo rigorous imprisonment for one year. The prosecution case in short is that the informant, who was a Probationary Assistant Sub-Inspector, with a number of other police officers was deputed to maintain law & order on the Ranchi-Tata bye-pass road. A bus bearing registration no. BR-26P/0361 was standing at the bus stand. The Police party began to check the bus and suspected that one of the passengers, a young man, was carrying an attaché (small suitcase) in suspicious circumstances. On questioning, he did not want to open his luggage. As a result, the police seized the suitcase for the purpose of searching the contents therein. The informant informed the Deputy Superintendent of Police, who was examined as PW 7, and the Deputy Superintendent of Police came at the spot and seizure list was prepared in his presence. Altogether ten witnesses have been examined in this case, out of which the police witnesses are PWs 1, 2, 3 and 4. the independent witnesses are PWs 5 and 6 who have turned hostile. PW 7 is the Deputy Superintendent of Police. PW 8 is tendered for cross-examination whereas PW 9 is the Investigating Officer of this case and PW 10 is Incharge of the Police Malkhana who has been wrongly described as the person who tested and examined the 3 cannabis substance. Learned Counsel for the appellant has submitted that (1) the informant was only a Probationary Assistant Sub-Inspector and could not have made a search without the presence of any gazetted Officer, (2) the evidence of the Deputy Superintendent of Police indicates that the search was not made in his presence, (3) the independent seizure list witnesses have turned hostile and (4) the seized cannabis was not sealed or sent to the Forensic Laboratory for its chemical analysis. This Court will consider the evidence of the witnesses with respect to the seizure, production and examination of the seized ganja. PW1, in paragraph 6 has stated that after seizure, he came to the Police Station and handed over the seized Ganja to the Officer-in-charge of the Police Station. He also gave written information of the occurrence which is marked as Exhibit-3. In paragraph 13, this witness has categorically stated that he had not sealed the alleged Ganja that was recovered or the suitcase which was recovered from the appellant. With respect to the search, PW 1 has stated in paragraph 8 that he had made a search of the suitcase but had seized the alleged Ganja in the presence of the Deputy Superintendent of Police. Apart from PW7, the evidence of the rest 4 witness is not relevant with respect to the seizure. PW 7 has stated that the seizure list was prepared in his presence and has also stated that he has also identified the attaché in the Court which has been marked as Material Exhibit-1 and he also claims to identify the LUNGI and the Ganja which has been marked as Material Exhibit-2. In cross-examination, this witness has stated that these articles, the attaché and the alleged Ganja, were not sealed. From the evidence of this witness, it is also apparent that infact the material exhibits that were produced before the Trial Court were not sealed. PW 10 who is Incharge of the Malkhana has stated that he has given a written report which has been marked as Exhibit-5, with objection, as according to the appellant, PW 10 is not the competent person to give an opinion regarding the nature of the seized article or to certify that the seized substance was cannabis substance or not. This witness further states that after inspecting the seized substance, he found that it was Ganja. This Exhibit-5 can not be of any help to the prosecution as the Malkhana- in-Charge is not the competent person to give such an opinion. From the evidence, it is apparent that a search was made of the attache which contained a LUNGI. The Ganja was wrapped up in the LUNGI, both these articles were produced in the Police Station, but were not sealed 5 either by the Officer-in-charge or by the Malkhana-in- charge. There is no evidence that part of the seized Ganja was kept separately for the purposes of its examination by the Director of the Forensic Laboratory who is an expert body for the purposes of determining that the seized substance is cannabis substance or not. Learned A.P.P. appearing on behalf of the State, on the other hand, submits while referring to sub- clause (ii) of Section 52 (a) of the Act that the seizure list and any other materials such as photographs of the drugs or substance would be considered to be primary evidence for the purposes of the Act. In the present case, there is a seizure list and that would naturally be considered as primary evidence except that the seizure has to be proved by the witnesses who were present at the time of seizure being made. However, this Court would not like to go into those aspects with respect to the manner in which the seizure was made but limits itself to only one aspect of the case which would be vital for deciding whether the appellant is liable for conviction us 20(b)(1) of the Act. In order to prove that the appellant was in possession of a cannabis plant or any substance which is banned under the Act, the prosecution has to prima facie show that the seized substance was sent for examination by 6 a person authorized under the Act or the Rules. In this case, admittedly the sample of the seized substance was not sent for its chemical examination to any expert or any person who is competent and authorized to give a certificate with respect to the seized substance or plant. An opinion given by the Malkhana-in-charge can not be considered to be an expert opinion and this Court can not sustain the conviction to the appellant on the basis of such an opinion as recorded in Exhibit-5. Accordingly, the judgment of conviction and order of sentence passed in G.R. Case No. 10 of 1997/07 of 1997 against the appellant is set aside. The appellant is also discharged from the liabilities of the bail bonds furnished earlier in this case before the Trial Court. In the result, the appeal is allowed. (Sheema Ali Khan, J.) Patna High Court, April 07, 2009 A.F.R./Anand