Criminal Appeal (SJ) No. 166 of 1998 ****** Against the judgment of conviction and order of sentence dated 13.01.1998 passed by Sri Subodh Paswan, learned 4th Additional Sessions Judge, Vaishali at Hajipur in Case No. C2A-3 of 1995. ****** Pramod Kumar Rai, Son of Ram Deo Rai, Resident of village – Rustampur, P.S. – Raghopur, District – Vaishali. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Md. Waliur Rahman, Advocate. Md. Abbas Haider, Advocate. Mr. Sushant Praveen, Advocate. For the Respondent : Mr. Sujit Kumar Singh, Advocate. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 20 (a) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for two years and six months and further convicted under Section 20 (b) (i) of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for two years and six months. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case as alleged is that on confidential information, the Excise Department raided and found the accused 2 cultivating Ganja plants and cut away those standing Ganja plants and 2 Kgs. Ganja was also recovered from the hut belonging to the accused and accused was also found in possession of firearm and such Ganja plant was seized and was sent for examination and thereafter report was submitted, on the basis of which cognizance was taken and case proceeded. 4. During trial fourteen witnesses were examined and the trial court after considering the evidence found that Ganja plants were recovered from the possession of the appellant, which was seized and the seizure list prepared and the land from which Ganja plants were seized belonged to the appellant and Ganja plants were sent to godown of the Excise and from there it was sent for examination and the expert opinion was received opening that the seized plant was Ganja by Ext. 2 series. The seizure list is Ext. 2 to 2/5 and Ext. 3 is the report of the expert. The seizure list suggests the number of Ganja plants which were seized, each of the seizure lists numbering as 1256, 514, 305, 867 and 1683. However, the report regarding recovery of two Kgs. Ganja was also received and taking into consideration the report of the chemical examiner, the court below convicted and sentenced the appellant as stated above. 5. Learned counsel for the appellant, however, contended that there is no mention how sampling was done from the seized article or 3 whether the seized article was sealed or ever sampled and hence there is violation of Sections 52, 53 and 55 of the N.D.P.S. Act. With regard to seized article there is no mention in the entire evidence of the prosecution that the seized articles were ever sealed in bundles or whether the sample was taken out from seized article and the sample was sealed before sending to the expert for chemical analysis. However, it has come in evidence that the seized articles were transported by boat to the depot of the excise department. However, there is no mention that the said seized articles were sealed either at place of occurrence or at the depot by whatever means or whether sampled at the place of occurrence or even at the depot. However, P.W. 7 to 14 though has supported the seizure and their signature on the seizure list but there is no evidence regarding the seal of the seized articles. P.W. 10 is the I.O. and has stated in his evidence that he conducted the raid under the Superior Officer and they went to the place of occurrence where the cultivation of Ganja going on and seized 2 Kgs of Ganja from the place of occurrence and other article and got the Ganja tree cut from the field of about 21 Khata and proved the seizure list of the seized article. He has further stated that Ganja was taken on truck in the departmental store and it was sent for chemical examination to the chemist and procures the report which is Ext. 3 and 3/6. However, there is nothing in evidence that how the seized Ganja plants were ever sealed at the 4 place of occurrence or at the departmental store and there is no evidence about the mode of taking out sample nor there is any evidence that the sample taken out for sending to the chemical annalist was ever sealed and hence the safeguard provided under Section 52, 53 and 55 of the N.D.P.S. Act has been contravened. There is no mention when the sample was sent and when it was received and when the report was received or whether the articles were kept under sealed cover and hence the report having regard to the fact that since the Ganja seized was not sampled nor there is any evidence that the mode of sampling of the seized article and sealing the sample before sending it to the examination and hence it is not proper to rely upon the chemical annalist report and hence it is not established that how the sampling from the seized Ganja as well as seized Ganja was made and hence the prosecution case that the seized articles were Ganja and hence the order of conviction and sentence recorded by the lower court is hereby set aside and hence the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 10th August, 2011. N.A.F.R./Kundan.