Criminal Appeal (SJ) No.432 of 1998 ~~~~~~ Against the judgment of conviction dated 26.11.1998 and order of sentence dated 27.11.1998 passed by Sri S. K. Sinha, Special Judge, N.D.P.S., Bhojpur, Ara in N.D. Case No. 19 of 1993. ~~~~~~ Mahendra Prasad, Son of Late Raghubir Prasad, Resident of Bibiganj, P. S. – Udwant Nagar, District – Bhojpur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Parmeshwar Mehta, A. P. P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Nobody appears on behalf of the appellant. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 3. The appellant has been convicted under Section 20 B (2) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.15,000/- and in case of non-payment of fine to undergo simple imprisonment for further two years. 4. The prosecution case as alleged by the informant Dilip Kumar, Officer-In-Charge is that on 11.09.1993 at 11:30 A.M. he got a secret information that one person engaged in the sale and purchase of Ganja is going along with briefcase and a bag in his shoulder for selling Ganja then the Officer-In-Charge proceeded and saw a person coming with briefcase and bag in his shoulder and he was asked to stop then the person started fleeing 2 away and was caught hold by the police party and disclosed his name as Mohan Prasad and in presence of two independent witness Lal Babu Mahto and Jugal Mahto six Kgs Ganja was recovered for which no paper was produced. The seizure list was prepared and on the written report of the Dilip Kumar, Officer-In-Charge, Behia First Information Report was lodged and after investigation charge-sheet was submitted. 5. During the course of trial six witnesses were examined. P. W. 1 is a seizure list witness who has turned hostile. P. Ws. 2 and 3 are the police constables who have supported the prosecution case about the recovery of Ganja from the briefcase and bag of the appellant. P. W. 4 is an independent seizure list witness who has also turned hostile. P. W. 6 is the informant and has supported the prosecution case about the recovery of Ganja from the possession of the appellant and has stated that the person was apprehended and tried to flee away then he was caught and was asked whether he will like to be searched in presence of a Gazetted Officer or a Magistrate but he refused search before a Gazetted Officer or a Magistrate. Thereafter search Ganja was seized. The seizure list prepared. The I.O. has proved his written report and the First Information Report. However, he has stated that he did not get any report of chemical examination of the seized article. 6. P. W. 5 is the A.S.I. He has stated that he recorded the statement as a witness and sent a sample to the chemical laboratory of the excise department and submitted the charge-sheet. The trial court taking into consideration the evidence convicted the appellant as stated above. 7. From perusal of the records, it is apparent that report has neither been obtained from the chemical laboratory, excise department nor the prosecution has brought on 3 record, although the I.O. had stated in his evidence that he had sent the sample of the seized article i.e. Ganja to the chemical laboratory, excise department for examination. However, he has not stated whether he procured the report from the chemical laboratory, excise department. However, the report of chemical laboratory, excise about seized Ganja has not been produced on record. Hence, it is not established that the seized articles were Ganja. However, taking into consideration the entire evidence, it is stated that the appellant was apprehended and six Kgs. of Ganja was recovered from him. However, there is no evidence whether the seized Ganja was weighed. There is no evidence that sample was taken out from the seized Ganja and was put in sealed cover. Hence, there is violation of Section 52 and 55 of the N.D.P.S. Act as well. However, there is no evidence that who sealed the sample and who sent the sample for chemical analyst report, the said report has not been procured and brought in evidence to suggest that the sealed articles were Ganja. Hence, there is strict violation of Sections 52 A and 55 of the N.D.P.S. Act. Hence, in absence of report that seized articles were Ganja, the prosecution has not been able to prove that the seized articles were Ganja. Hence, the order of conviction and sentence recorded by the lower court is set aside and this appeal is allowed. 8. Mr. Arun Kumar Tripathi, shall be supplied a copy of this judgment and he shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 12th October, 2011. N.A.F.R./Kundan.