CRIMINAL APPEAL No.419 OF 2007 (S.J.) **** Against the order and judgment, dated 30.03.2007, passed in Special Case No. 9 of 2004/2 of 2005 by the Additional Sessions Judge, I, Purnea **** MANIK CHAND SAH, son of late Anup Lal Sah, resident of village Kazra, P.S. Mirganj, Dhamdaha, district Purnea .. Appellant Versus THE STATE OF BIHAR .. Respondent **** For the appellant .. M/S Ashok Kumar & Amresh Advs. For the respondent .. Mr. Dwivedy Surendra, A.P.P. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Heard both the parties. 2. This appeal has been preferred against the conviction passed by the Additional Sessions Judge, I, Purnea, in Special Case No. 9 of 2004/2 of 2005 for the offence 18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to rigorous imprisonment for ten years and five Rs.25,000/- in default of which a further period of 2(1/2) years 2 rigorous imprisonment. 3. The prosecution case is that on 28.03.2004 the Sub Inspector of Police, on receiving information that poppy plants have been sown in village Kajara, went there for inspection and found poppy plants having been cultivated on one bigha of land. The said fields, he learnt, belong to Shambhu Sah, Rajo Sah and the present appellant. The poppy plants, thereafter, wereseized and a sample was prepared, but, unfortunately there is no report of the Forensic Science Laboratory, in this regard. 4. The prosecution in all examined seven witnesses out of whom P.W. 1, Chandeshwari Sharma, has proved his signature on the three seized lists marked as Exhibits 1, 1/A and 1/B. However, he has stated in his evidence in Court that the seizure was made from the fields of Shambhu Sah and Rajo Sah, who cultivate the fields themselves and did not do any batai upon the same. P.W. 2, Bindeshwari Sharma, is also a seizure list witness. He has merely identified his signature on the seizure list, but, has stated that the same was done on plain paper and has not whispered a word about the search and seizure from the fields of the appellant. P.W. 3, Jagdish Sah, is the informer of the case. He was Dafadar of Meerganj Police Station and has specifically stated that the land from where the seizure was made belong to Shambhu Sah and Rajo Sah and has orally alleged that it is the appellant who had done the cultivation upon the 3 lands of Shambhu Sah. P.W. 4, Divesh Paswan, the Chowkidar of Meerganj Police Station has also stated that the land belong to Shambhu Sah and Rajo Sah and he learnt from the villagers that in fact Manik Chand Sah, the appellant, had cultivated the poppy plants. However, he has conceded that he did not see Manik Chand Sah himself cultivated the said poppy. 5. P.W. 5, Shankar Mandar, a co-villager of the present appellant, has merely stated that the lands belong to Shambhu Sah and Rajo Sah, but, nothing more. P.W. 6, Shiv Kumar Singh, the Officer-in- Charge and the investigating officer is formal in nature has merely deposed on the point of submission of charge sheet against the present appellant on the orders of the higher officials. 6. From the analysis of the evidence, discussed above, it is evident that where the evidence of P.Ws. 3 and 4 on the point of appellant having cultivated poppy plants in the field of Shambu Sah and Rajo Sah is concerned, is merely an allegation without any substance, since, there is no specific assertion that they had ever seen the present appellant cultivating the fields of Shambhu Sah and Rajo Sah. 7. In fact, P.W. 4 has stated that he himself had not been the appellant sowing the plants. P.W. 1 has stated that Shambhu Sah and Rajo Sah cultivated their own land. 8. The essential ingredient for a conviction to be sustained for the offence under Section 18 of the Narcotic Drugs and 4 Psychotropic Substances Act would be that it was the appellant who had cultivated the opium poppy or product, but, in the present case there is absence of any cogent or material reliable with regard to the same and there is only a bald allegation of P.W. 3 that the appellant had grown the poppy plants. The direct nexus of the appellant with the alleged seized poppy plants is totally missing. 9. The next point for consideration is whether the prosecution has discharged it’s duty in proving that the alleged plants seized were poppy to sustain the conviction of the appellant in a case of Narcotic Drugs and Psychotropic Substances Act. In the present case admittedly thee is no report of the Forensic Science Laboratory to conclusively prove that the alleged plants seized were poppy. In the present case, unfortunately the investigation has not been conducted in the manner as would be required in cases of Narcotic Drugs and Psychotropic Substances Act inasmuch as there is no Forensic Science Laboratory report nor is there any evidence to show that any step was taken to send the poppy plants for examination. In fact, the specific assertion of the witnesses is that the poppy plants were destroyed then and there. 10. Under the circumstances, no cogent material having been produced by the prosecution that the alleged plants were cultivated by the appellant or that the appellant cultivated by the appellant were, in fact, poppy, this Court finds it difficult to uphold the conviction of 5 the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act and, therefore, this appeal is allowed and the conviction and the sentence is set aside and the appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) The Patna High Court, The 07th day of October, 2009, N.A.F.R./S.A.