1 Criminal Appeal (SJ) No.11 OF 2010 - - - - Against the judgment of conviction dated 17.12.2009 and order of sentence dated 23.12.2009 passed by Additional Sessions Judge-I, Bhojpur at Ara in N.D.P.S.Case No. 70 of 1991. - - - - MAHENDRA MISTRI son of late Ram Baran Mistri, resident of village Biranpur, Police Station Koilwar, District Bhojpur … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Baxi S.R.P.Sinha, Sr. Adv. Rahul Nath, Adv. For the State: Shri S.N.Prasad, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J- The appellant stands convicted of offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act( the Act, for short) and sentenced to rigorous imprisonment for ten years as also to pay a fine of rupees one lac, else, to suffer rigorous imprisonment for further period of three years by the judgment and order dated 17.12.2009 and 23.12.2009, respectively, passed by the Additional Sessions Judge-I-cum-Special Judge, Bhojpur at Ara in N.D.P.S. Case No. 70 of 1991. 2. The police received an information about the storage of Ganja by the appellant in his house while the informant and his companion police personnel were on patrolling duty. They reached at 2 the house of the appellant and found a jeep parked there. Two gunny bags were loaded over it which contained 72 K.Gs. of Ganja. The informant( not examined) entered inside the house of the appellant to conduct the search and recovered yet another quantity of 138 K.Gs. of Ganja. The seizure memo was prepared in presence of two independent witnesses. Sample was allegedly drawn and finding material against the appellant sufficient, the appellant was put on trial. 3. During the trial, the informant was not examined. The Investigating Officer of the case was also not turning up for his evidence. There was either no submission of analysis report by the Chemical Analyst or the Scientist of the Forensic Science Laboratory or if it was at all submitted the same was not brought on record by any mode of adducing evidence. Two prosecution witnesses who were eye witnesses to the occurrence were tendered for cross-examination while out of the two seizure list witnesses one was not produced and the other did not support the seizure report and the factum of search, recovery and preparation of the seizure memo in his presence. The Chaukidar who was accompanying the informant and who was an eye witnesses to the whole exercise of search, seizure 3 and recovery, was not supporting the prosecution case and he was also declared hostile. Yet another prosecution witness, P.W.8 has been disbelieved by the learned trial court. 4. The learned Trial Judge still went on to hold that the Officer-in-charge of Koilwar Police Station had made search of the jeep and house of the appellant and recovered the psychotropic substance. 5. The purpose for sending part of the sampled recovered articles to the Forensic Science Laboratory for analysis and report is only to confirm that the seized article was either a narcotic drug or a psychotropic substance or some prohibited material declared so by the Act. If that evidence which was admissible under Section 293 Cr. P.C. and which was to be considered as evidence as per that particular provision of the Code, was not produced then serious doubt was created in the claim of the prosecution case, even if the Court was believing the recovery or search that the recovered and seized substance was a drug or substance covered by definition of the Act of such terms. The recovery and search, to me, appears failing in doubt on account of non- examination of the informant and some of the eye 4 witnesses. Persons who were the eye witnesses either were not supporting the prosecution case or being disbelieved by the learned trial Judge himself. It was a case in which the learned trial Judge ought to have rejected the whole prosecution charge as not proved and ought to have acquitted the appellant. 6. In the result, the appeal succeeds, the judgment of conviction and order of sentence passed upon the appellant are hereby set aside and the appellant is acquitted of the charge under Section 20(b)(ii) of the Act as he stands acquitted of the other charge under Section 29 of the Act. 7. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 17th May, 2011 Kanth/N.A.F.R.