Criminal Appeal (SJ) No.127 of 1996 **** Against the judgment and order, dated 19th June, 1996, passed by Sri P.N. Yadav, Special Judge, Nawadah, in Special Case No. 7 of 1994 **** Ayodheya Pandey, son of Late Paro Pandey, resident of village Hari Narayanpur, P.S. Gobindpur, district Nawadah .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. M/S Radhey Shyam Prasad & Parveen Kumar Agrawal, Advs. For the State .. Mr. Sujit Kumar Singh, APP **** P R E S E N T HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the learned counsel for the appellant and the State. 2. The appellant has been convicted under Section 20(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as, ‘the Act’) and has been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/- and in default in payment of fine to undergo rigorous imprisonment for one year. 3. The prosecution case, as alleged in the fardbeyan of the informant, that Sultan Mian, Inspector of Excise, P.W. 2, along with Officer-in-Charge of Govindpur Police Station, P.W. 1, raided and searched the house of the appellant, Ayodhya Pandey, at about 06.30 a.m. on 20th 2 August, 1994, and found seven ganja plants of height ranging from 5 feet to 8 feet standing in the court yard of the informant. The appellant did not produce any licence for growing ganja and, hence, the prosecution party presumed that there is illegal cultivation of ganja and seizure list was prepared with regard to the said ganja plant uprooted from the court yard of the appellant. The police, after investigation, submitted charge sheet. During the trial the material witnesses were examined, who are P.W. 1, Gajendra Prasad Singh, Sub Inspector of Police, the then Officer-in-Charge of Govindpur Police Station, P.W. 2, Sultan Mian, Excise Inspector, P.W. 3, Tulsi Thakur, Excise Constable and after considering the oral and documentary evidence the appellant was convicted for offence under Section 20(a) of the Act has been passed against him. 4. The learned counsel for the appellant, however, contends that there is violation of Section 42 of the Act as the officers who raided the house was not empowered to make the raid. It has, further, been contended that there is violation of Section 50 of the Act as no opportunity was provided to the accused nor the nearest Magistrate was informed about the search and seizure. It has, further, been contended that no sanaha entry made when there was prior secret information about the cultivation of ganja and it has, further, been contended that the alleged seized ganja was neither sealed nor sampled and the report of the Forensic Science Laboratory on the basis of unsealed sample is not reliable. 5. The learned counsel for the State, however, opposed the submissions made by the learned counsel for the appellant and submitted that the ganja was recovered and sent and the report of the Excise Chemical Examination shows that it is the sample of ganja. 3 6. Hence, the question for consideration whether the prosecution has been able to prove the charges leveled against the appellant beyond reasonable doubt. 7. Prosecution case as alleged in fardbeyan that seven ganja plants of size 5 to 8 feet was found grown in the court yard of the appellant. However, P.W. 1 has stated that during the raid seven ganja plants were found and the said ganja plant was uprooted and seized and seizure list was prepared which is Exhibit 1 and even witnesses singed on the seizure list and has stated that he did not investigate the case, but, only cooperated with the excise officials. P.W. 2 is Tultan Mian, has also stated that from the house of appellant, seven ganja plants were found in the court yard and the seven trees were uprooted, however, stated that said trees were neither bear the fruit nor bear the flower. He has proved the seizure list, which has been marked as Exhibit 1. He has, further, stated that he sent the said plants to Malkhana and, thereafter, says that sent the ganja plant for chemical examination to the Chemical Examiner, Bihar, Patna, and got the report. He has also brought the said ganja plants in the Court, which has been marked as material Exhibit I to I/6. He has a secret information about the said ganja so he came along with the Officer-in-Charge of the nearest Police Station. However, P.W. 3 has also supported the prosecution case about the seizure of ganja plant from the house of the appellant and preparation of a seizure list. 8. However, there is no iota of evidence that the said ganja tree, after being seized was ever sealed and sampled. There is no evidence adduced by the prosecution that the said ganja plants were ever sealed either at the place of occurrence or at the Police Station nor there is evidence that 4 the said ganja plants were ever sealed and sampled for sending it to the chemical examination. 9. Hence, having regard to the fact that the ganja plant, seized at the house of the appellant, was neither sealed nor sampled, hence, the report of the said ganja plant received from the Chemical Analyst, Bihar, Patna, suffer from lacunae and the report of the said ganja sent for chemical examination without being sealed and sampled and without any evidence where it was kept during the period from it’s seizure till it is sent for chemical analysis and who sent the seized ganja plant for the chemical examination, hence, the report of the examiner is not reasonable to be relied upon. Hence, the prosecution has not been able to prove that the said alleged seized plants, which were seized from the house of the appellant, were ganja plant. Once the plant seized were ganja plant is doubted the order of conviction and sentence is not sustainable. 10. So far the point raised with regard to violation of Section 42 of the Act is concerned, since, the raid was made by the Excise Inspector and he is duly authorized by the notification, hence, there is no merit in the submission. Further, not lodging of the sanaha entry is also not of much consequence. 11. Having regard to the case, since, the seized ganja plant was neither sealed at the place of occurrence nor any other place and so the report of the chemical analyst suffer from doubt and can not be relied upon to hold that the seizure plant was ganja plant. Hence, report of chemical examination is neither reasonable nor is worthy of reliance to prove the charge. Hence, the learned lower Court misdirected itself in recording the 5 conviction and sentence on the basis of the Chemical Analyst’s report. 12. The order of conviction and sentence recorded by the learned lower Court is set aside the appeal is allowed. 13. Since, the appellant is on bail, he is discharged from the liability of bail bond. ( Gopal Prasad, J. ) The Patna High Court, The 24th day of June, 2011, N.A.F.R., S.A.