Criminal Appeal (SJ) No.162 of 1996 Against the judgment and order dated 26.06.1996 passed by Sri Someshwar Nath Pathak, Special Judge, Buxar in N.D.P.S. Case No. 21 of 1994. 1. Gopal Choudhary, Son of Shri Mahanth Choudhary, resident of Village – Choranti Lakh, P.O. – Awandhi, P.S. – Dawath, District – Rohtas. 2. Kamla Prasad Keshari, Son of Mishri Lal Keshri, resident of Village – Saradia, P.S. – Chopan, District – Sonebhadra (U.P.). .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s -------------- For the Appellant/s : Mr. Ravi Shanker Sahay, Advocate. Mr. Ajay Nandan Sahay, Advocate. For the Respondent/s : Mr. Parmeshwar Mehta, A.P.P. --------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard. 2. The appellants have been convicted under Section 20 (b) (1) of the Narcotic Drug and Psychotropic Substances Act as well as under Section 47 (A) of the Excise Act for the alleged recovery of one and half Kg. of Ganja from the possession of both the appellants separately and have been sentenced to undergo rigorous imprisonment for four years for offence under Section 20(b)(1) of the Narcotic Drug and Psychotropic Substance Act. However, no separate sentence has been passed for offence under the Excise Act. 2 3. The prosecution case as alleged in the written report of the fardbeyan is that on secret information that some persons are carrying Ganja on the Bus bearing No. BR-3H 9989, he made out a search and found two persons Gopal Choudhary in possession of one and half Kg. of Ganja in a black leather bag having been kept his thigh and one Kamla Prasad Keshari in possession of one and half Kg. in his lap. The said Ganja were seized in presence of the independent witness Umesh Singh the bus driver and a Khalasi Shailender. 4. On the basis of the written report the FIR was lodged then after investigation the charge-sheet was submitted. However, during the trial four witnesses were examined who are P.W. 1 Ajay Mishra, P.W. 2 Hari Hazra, P.W. 3 Ghuranh Rai and P.W. 4 Suresh Baitha. One witness examined as a court witness C.W. 1, who has formally proved the report of the chemical laboratory. 5. After considering the oral and documentary evidence the learned court below convicted the appellants for offence under Section 20 (b) (i) of the N.D.P.S. Act and sentence as stated above. 6. Learned counsel for the appellants has challenged the judgment and conviction and sentence on the ground that Ganja is alleged to have been seized on the secret information. However, the police while proceeding for raid has not made any Sanha Entry have not been proved. It has further been contended that though Ganja is alleged to 3 have been seized from the possession of the appellant but the said Ganja was neither sealed nor sampled at the place of occurrence or even at the subsequent stage of the investigation. The I.O. has also not stated that the Ganja was ever sealed or sampled and hence the report of the chemical examiner is neither reliable nor worthy of confidence and hence the prosecution has not been able to prove the charges leveled against the accused persons beyond reasonable doubts. 7. Learned counsel for the State, however, fairly conceded that from the evidence of the I.O. and the informant. It is apparent that the said seized Ganja was neither sealed nor sampled and hence, the question for consideration is whether the prosecution has been able to establish the charges. However, the prosecution case is that one and half Kg. was seized from the possession of the two appellants from their lap in bus while traveling in a bus. 8. However, P.W. 1 is the informant though he stated that he got information about the transit of Ganja from a bus but in his cross- examination has stated that he did not record Sanha with regard to that information. However, he has stated that he Seized Ganja from the appellants and though has stated that he weighed the said Ganja in para 7 of his cross-examination. He has specifically stated that the said seized Ganja was not sealed nor the statement of the witnesses were taken and has stated that he sent the Ganja in the Malkhana of Police 4 Station in the same state and he has further stated that the sample of the Ganja was not sent before him for examination. 9. P.W. 2 is the Officer-In-Charge who has supported the prosecution case about the seizure and has stated that he has brought back from Malkhana the said seized Ganja and submitted it in court. He has further stated in his examination that the bag or the Jhola which was seized was not sealed before him and even today these articles were in unsealed state. 10. P.W. 3 has turned hostile. 11. P.W. 4 is the Khalasi and a seizure list witness. 12. P.W. 5 is the I.O. and I.O. has also stated in his evidence that he has directed to send the seized Ganja for examination in the laboratory and that on the direction of S. P. and Dy. S. P., he sent the Ganja for examination. However, he has stated that the Ganja which was given to him was not under sealed cover and there was no signature of the witnesses on the said bag. 13. Hence, having regard to the facts and circumstances when the Ganja was seized it was not sealed nor sampled at the place of occurrence nor it was ever sealed thereafter it was kept in Malkhana, there is no evidence that who was custodian of the Malkhana who has kept the seized Ganja, there is no mention that the seized Ganja was ever sealed or sampled or the Ganja sent was sealed or sampled and 5 hence the report of the chemical examination with regard to the Ganja which was neither sealed or sampled at the time of the seizure nor was sent in the sealed or sampled state and hence the authenticity of the report of the chemical examiner suffer from infirmities as to whether the report is with regard to the articles seized and hence in that view of the matter the order of conviction and sentence is not sustainable and the learned lower court misdirected itself in holding on the basis of the examiner report that the said seized articles were Ganja and hence the order of conviction and sentence recorded by the learned lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, The 24th June, 2011. NAFR/Kundan.