Criminal Appeal (SJ) No.306 of 1998 **** Against the judgment and order, dated 24th June, 1998, passed by Shri B.D. Pathak, Additional Sessions Judge, II, Aurangabad, in G.R. No. 3 of 1994/6 of 1996 arising out of Barun P.S. Case No. 59 of 1994 **** Santosh Kumar Singh, son of Awadhesh Prasad Singh, resident of village Dhodhandih, P.S. Surajpura, district Rohtas .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Vikramdeo Singh, Adv. 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 20(B)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.15,000/- and in default to undergo rigorous imprisonment for nine months. 3. The prosecution case, as alleged that the informant, Sub Inspector of Police, Safir Khalifa, the then Officer-in-Charge of Barun 2 Police Station proceeded and caught one person along with a brief case containing ganja and no paper produced, the seizure list prepared and on the self statement of the Sub Inspector of Police, the first information report lodged and after informant the charge sheet submitted. The cognizance taken and, thereafter, the charge was framed. 4. During trial three witnesses were examined, two are the seizure list witnesses and one is the investigating officer. The informant was not examined. The documentary evidence proved and Exhibits 1 is the seizure list, 1/1 and ½ is the signature on the seizure list, Exhibit 2 is the signature of Safir Khalifa on fardbeyan, Exhibits 2 and 2/1 is the signature of Safir Khalifa, Exhibit 3 and 3/1 is the seizure list and the signature on the seizure list, Exhibit 4 is the paragraph 1 to 50 of the case diary and Exhibit 5 is the report of the Chemical Examiner, Excise, Bihar. 5. The learned counsel for the appellant, however, contends that the informant has not been examined and the seized article was neither seized nor sampled nor there is any evidence of sending to the Forensic Science Laboratory. 6. However, the prosecution case is that the informant on information proceeded and apprehended the accused with ganja and it was seized before the independent witness. However, the informant has not been examined, the two seizure list witnesses have been examined as P.Ws. 1 and 2, however, both the witnesses have been declared hostile by the prosecution. The investigating officer has formally been proved, the fardbeyan and seizure list which was prepared before him and has 3 proved the signature on the seizure list of Safir Khalifa, the informant. However, this witness stated that he sent the sample to the Chemical Examiner, Excise. The informant has not been examined and no evidence that he apprehended the victim along with the ganja and, further, there is no evidence that the said ganja after receipt was ever sealed. There is no mention of sampling and whether the said sample was seized and sent under the seal and, hence, the protection under Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has not been completed nor there is any mention that where the seized article was kept in sealed cover. 7. Hence, having regard to the fact that there is no evidence of apprehension of the appellant or the recovery from his possession nor the seized ganja was sealed or sampled in sealed cover, hence, the report of chemical examiner can not be relied upon persons are entitled to benefit of doubt as prosecution has not been able to prove the charge beyond reasonable doubt and, hence, I acquit the appellant from the charge as the prosecution has not been able to prove the charge, hence, the order of conviction and sentence is set aside. 8. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 2nd day of August 2011, N.A.F.R., S.A.