Criminal Appeal (SJ) No.401 of 1998 **** Against the judgment, dated 22nd September, 1998, passed by Shri Krishna Nand Pandey, Additional District and Sessions Judge, III, Motihari-cum-Special Judge, Narcotic Drugs and Psychotropic Substances Act in Excise Case No. 20/2 of 1996 **** Bishuhlal Sah @ Kishunlal Sah, son of late Ramdeo Sah, resident of village Kubra, P.S. Harsidhi, district East Champaran, Motihari .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. M/S Uma Shankar Verma, Binod Kumar Mishra & Manju Sinha, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo rigorous imprisonment for two years. 3. The prosecution case, as alleged is that during the checking two packets of contraband charas recovered from the plastic 2 bags from the possession of the appellant, seizure list was prepared and the cognizance taken. 4. However, during the trial four witnesses were examined and the witnesses supported prosecution case about the recovery of plastic bags during search of vehicle TATA 407, bearing registration no. BEE 2021, three persons were sitting behind the seat of driver and after primary investigation the sample was sent for examination and the prosecution report was prepared. P.W. 3 has proved the seizure list and the other witnesses submitted the prosecution case about the search and seizure. However, the documents proved are Exhibit 1, the seizure list, Exhibit 2, the chemical report of the Forensic Science Laboratory and Exhibit 3 the prosecution report. However, the chemical report suggests that the 15 grams of greenish brown solid substance was received in a polythene packet described as charas and it was reported that in the absence of standard charas sample of known T.H.C. contents in the above sample it is not possible to determine the percentage of T.H.C., however, it is apparent that from the perusal of the records it appears that analysis report received. 5. However, four witnesses examined, but, there is not evidence, whatsoever that the seized material was ever sealed nor there is any mention that from the seized material sample was taken and the said sample was sealed, there is no evidence that the sample was not in sealed cover. 3 6. The learned counsel for the appellant, however, contended that the article seized from the possession, but, make out a case that it was recovered from the conscious passion of the appellant. 7. However, the provisions of Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has not been complies and, further, that the compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has not been made as it written statement not asked whether the appellant was produced with the article before a Magistrate. 8. However, with regard to place of recovery there are some variations in the evidence of the witnesses that some stated about the recovery from 3-4 seat back of the driver and some stated that it was kept on the back seat of the driver. However, the evidence is that one person was in suspicious state and has kept something in the plastic bag. If non-compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is of no consequence in view of the fact that the recovery was not from the personal possession of the appellant, but, from the bag which was kept near the appellant. 9. However, so far the compliance of Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, is concerned, though the seizure list prepared with regard to the articles, but, there is no mention that the said articles were ever sealed and there is no mention that from the said sealed articles the samples were taken or properly sealed for sending it to the chemical examination or the Forensic Science Laboratory and there is no evidence that where the 4 seized articles were kept with Officer-in-Charge of Police Station nor there is evidence that sample taken from seized article in accordance with law and properly sealed for sending it to Forensic Science Laboratory and, hence, the basic safe guard provided under the Narcotic Drugs and Psychotropic Substances Act, 1985, under Sections 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has not been observed and it has caused a great prejudice to the appellant. The report of the Forensic Science Laboratory is also not specifically stated to be a charas, hence, it is not established that the seized article was charas. 10. Hence, the order of conviction and sentence recorded against the appellant is set aside and the appellant is acquitted of the charge. 11. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 04th day of August 2011, N.A.F.R., S.A.