Criminal Appeal (SJ) No.109 of 1997 [Appeal against the judgment and order dated atna in 11.4.1997 passed by the Special Judge (N.D.P.S. Act)- cum- 1st Additional Sessions Judge, Purnia in Special case No.9 of 1995] Suresh Singh son of Ram Naresh Singh, resident of Village Masarh, P.S. Udwant Nagar, District Bhojpur …………………….. Appellant Versus 1. The State of Bihar 2. Union of India through Collector (Custom), Bihar ………….. Respondents For the Appellant : Mr. Chitranjan Sinha, Senior Advocate Mr. Anirban Kurdu, Advocate For the Respondents : Mrs. Renu Tiwary, Add.P.P. With Criminal Appeal (SJ) No.139 of 1997 Ganesh Verma son of Dudh Nath Verma, resident of Village Bokajan, Police Station Bokajan, district Difu in the State of Assam ……… Appellant Versus The State of Bihar ……. Respondent For the Appellant : Mr. Jagdish Prasad Bhagat, Advocate For the Respondent : Mr. Aslam Ansari, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s.20(B) of the N.D.P.S. Act, 1989 and sentenced to R.I. for five years and a fine of Rs.25,000/- and in default of which further R.I. for one year by a judgment dated 11.4.1997 passed by the Special Judge (N.D.P.S. Act)-cum- 1st Additional Sessions Judge, Purnia in Sessions case No.9 of 1995. 2 2. The case of the prosecution according to P.W.1 Sudesh Kumar, Inspector of Customs (Preventive), Kishanganj is that on 15.2.1995, an Ambassador car bearing No. AXQ-4861 was intercepted on suspicion and taken to the customs office and searched. The present appellants were the occupants of the car along with one Amrendra Kumar Jaiswal. From the dicky and the back seat of the car total 97 kgs of ganja was recovered, which was sent for chemical examination. Both the appellants gave statement before the informant that they had been used as carriers by one Talong, who has not been put on trial. It is also note worthy that even though three persons were found occupying the car, the said Amrendra Kumar Jaiswal was not charge sheeted and therefore was not put on trial. 3. On behalf of the prosecution five witnesses were examined during trial. Out of whom, the informant Sudesh Kumar has deposed as P.W.1 that on 16.4.1995 while he was posted at Kishanganj, an Ambassador car was seen coming from the side of Siliguri which was intercepted. Appellant Ganesh Verma was driving the car who showed the relevant papers with regard to it. On enquiry he disclosed that he was coming from Dimapur and going to Farakka. The car was taken to the customs office and in presence of the Superintendent of Customs and other independent witnesses the same was searched and from the back sheet and the dicky of the car 49 packets of ganja of the value of Rs.1,94,000/- was recovered and the panchnama was prepared in regard to the same, which was Exhibits 1 and 2. The statements 3 of appellant Suresh Singh and Ganesh Verma were taken, which have been marked as Exhibit 3 and 4 series. He proved the complaint as Exhibit 5. P.W.2, P.W.3 and P.W.4, who were also members of the raiding party, have been tendered for cross examination and are not relevant witnesses. P.W.5 Anil Kumar Bose, the Superintendent of Customs, has deposed on 16.4.1995 that an Ambassador car of which the appellants were also occupants was intercepted and brought to Customs office and from the dicky and back sheet of the car packets of ganja was recovered. The statements of the accused was also recorded, who conceded that they have been hired as carriers by one Talong of Nagaland who was indulging in the business of smuggling. 4. Unfortunately for the reasons best known to the prosecution the F.S.L. report has not been exhibited even though I find that it is a part of the court records. Such major lapses are fit to be deprecated and had not such a long time elapsed from the date of trial to the present hearing of appeal, I would have recommended action against the persons, who were responsible for the same. Since the prosecution has not bothered to prove that the articles which had been seized from the possession of the appellants was ganja, this Court finds it difficult to sustain the conviction of the appellants. 5. In the result, both the appeals are allowed and the order of conviction and sentence passed against the appellants on 114.1997 by the Special Judge (N.D.P.S. Act)-cum- 1st Additional Sessions Judge, Purnia in Sessions case No.9 of 1995 is set 4 aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 12th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )