Criminal Appeal (SJ) No. 369 of 2008 ----------- Against the judgment and order of conviction and sentence dated 20.2.2008 and 29.2.2008 passed by Shri Dharam Nath Prasad Verma, Ist Additional Sessions Judge, Kaimur at Bhabua in Trial No. 27 of 2005. ---------- 1. Gyasuddin alias Gyassu, son of late mamduli Kuraisee, 2. Sailash Khatoon, wife of Gyasuddin, both resident of village – Satuarganj, P.S. – Mohania, District – Kaimur, Bhabua …………….. Appellants Versus The State of Bihar ……………….. Respondent -------- For the Appellants : Sarvshri Sudama Singh, Rajni Kant Singh, Advocates For the State : Shri Ajay Mishra, APP ------- P R E S E N T THE HON’BLE SHRI DHARNIDHAR JHA ------ Dharnidhar Jha, J. The two appellants, husband and wife, have appealed to this Court against the judgment dated 20.2.2008 passed by the learned Ist Additional Sessions Judge, Kaimur at Bhabua in Trial No. 27 of 2005. The appellants had been indicted of committing offence under section 21 of the Narcotic Drugs and Psychotropic Substances Act (‘Act’ for short) and after trial, were found guilty of committing the offence. After being heard on sentence, the appellants were directed to undergo RI for ten years and also to pay a fine of rupees one lac each else, to suffer RI for five years each. 2. P.W. 2 Lallan Pandey, the Officer Incharge of Mohania Police station, received an information that the appellants were carrying on trade in heroin from their very house. A police team was constituted, which included lady constable Kiran Pandey (not examined) along with other constables which came to the house of the appellants. The police team was accompanied by Circle Officer of Mohania block, namely, Sri Bijay Kumar Singh (not examined). They came to the house of the 2 appellant and made a search of the house and in that course demanded the key of an almirah. Undisputedly, the key of the almirah was handed over by appellant no. 2. After opening the almirah, the police found a packet containing some substance and it was in its opinion heroin. A weighing balance was obtained from the neighbourhood and it was found that the recovered substance was weighing 15.200 grams. The two appellants were arrested and the FIR was drawn up after preparing the seizure memo which was signed by the Circle officer, Mohania a witness. 3. It is not disputed that the copy of the seizure was not handed over to any of the appellants. I have already noted that the Circle Officer, Mohania, who was accompanying the police party, was also not examined. Only two witnesses, namely, P.Ws 1 and 2 were examined and the trial court went on to convict the appellants. 4. After having been taken through the evidence of the two witnesses, what this court finds is that the appeal has to succeed, inasmuch as there is complete violation of the provision of section 55 of the Act. 5. As per the provision of the Act, if an officer is making a search or seizure of any narcotic substance, immediately after its seizure he has to deliver the seized article to the Officer Incharge of his police station who is supposed to secure the delivered substance by putting his own seal on the container of the substance. What is next required by the provision of section 55 of the Act is that at the time of drawal of the sample, the officer who had been authorized to draw the sample or the officer who had recovered the article has to be permitted to take out the sample, but at that time the Officer Incharge of the police station is also supposed to remain present. This is not laid down in so many words by the provision of the Act, but could be concluded by the part of the provision which directs that the packing of the sampled article must contain the seal both of the officer seizing it and of the Officer Incharge of the police station. 6. The evidence of P.Ws. 1 and 2 indicates that after the recovery of the substance from the almirah of the appellants, the substance which was weighing 15.200 grams was divided into three equal parts and the sampling was done. The 3 evidence indicates that this exercise was carried out at the very spot itself. The safety measure which was required to be observed by section 55 of the Act on delivering the substance to the Officer Incharge, who was required to secure the substance by properly sealing it, was not allowed to be observed. The purpose of that particular part of the provision is to secure the substance from being either adulterated or substituted. More over, there is no evidence on record on perusal of the depositions of P.Ws 1 and 2 that both the witnesses had put their respective seals over the sampled substance. Thus, there could always be a room to infer that either the substance had been substituted or the substance which was recovered was never sampled. If this could be the inference which could be coming out of the evidence, then the mandatory provision of section 55 of the Act appears completely violated making out a case of acquittal in favour of the appellants. 7. In the light of the discussion of the evidence and inference I have drawn on that basis, I find that the appellants were inappropriately convicted for the offence and unnecessarily put under the sentence as heavy as prescribed under the law. 8. In the result, the appeal is allowed and the two appellants are acquitted of the charges they had been convicted of. Appellant Gyasuddin alias Gyassu is in custody. He shall be released forthwith if not wanted in any other case. Appellant Sailash Khatoon is on bail. She shall be discharged from the liabilities of her bail bond. (Dharnidhar Jha, J.) Patna High Court, The 29th September, 2011, NAFR/Anil/