Sheema Ali Khan, J.

1. The sole appellant has challenged the judgment of conviction dated 7.1.1998 and order of sentence dated 8.1.1998 passed in G.R. Case No. 10 of 1996/07 of 1997 by which he has been convicted under Section 27(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 10,000/-, and in default of payment of fine, further to undergo rigorous imprisonment for one year.

2. The prosecution case in short is that the informant, who was a Probationary Assistant Sub-Inspector, with a number of other police officers was deputed to maintain law & order on the Ranchi-Tata bye-pass road. A bus bearing registration no. BR-26P/0361 was standing at the bus stand. The Police party began to check the bus and suspected that one of the passengers, a young man, was carrying an attache (small suitcase) in suspicious circumstances. On questioning, he did not want to open his luggage. As a result, the police seized the suitcase for the purpose of searching the contents therein. The informant informed the Deputy Superintendent of Police, who was examined as PW 7, and the Deputy Superintendent of Police came at the spot and seizure list was prepared in his presence.

3. Altogether ten witnesses have been examined in this case, out of which the police witnesses are PWs 1, 2, 3 and 4, the independent witnesses are PWs 5 and 6 who have turned hostile. PW 7 is the Deputy Superintendent of Police. PW 8 is tendered for cross-examination whereas PW 9 is the Investigating Officer of this case and PW 10 is Incharge of the Police Malkhana who has been wrongly described as the person who tested and examined the cannabis substance.

4. Learned Counsel for the appellant has submitted that (1) the informant was only a Probationary Assistant Sub-Inspector and could not have made a search without the presence of any Gazetted Officer, (2) the evidence of the Deputy Superintendent of Police indicates that the search was not made in his presence, (3) the independent seizure list witnesses have turned hostile and (4) the seized cannabis was not sealed or sent to the Forensic Laboratory for its chemical analysis.

5. This Court will consider the evidence of the witnesses with respect to the seizure, production and examination of the seized ganja.

6. PW 1, in paragraph 6 has stated that after seizure, he came to the Police Station and handed over the seized Ganja to the Officer-in-charge of the Police Station. He also gave written information of the occurrence which is marked as Exhibit-3. In paragraph 13, this witness has categorically stated that he had not sealed the alleged Ganja that was recovered or the suitcase which was recovered from the appellant. With respect to the search, PW 1 has stated in paragraph 8 that he had made a search of the suitcase but had seized the alleged Ganja in the presence of the Deputy Superintendent of Police.

7. Apart from PW 7, the evidence of the rest witness is not relevant with respect to the seizure. PW 7 has stated that the seizure list was prepared in his presence and has also stated that he has also identified the attache in the Court which has been marked as Material Exhibit-1 and he also claims to identify the LUNGl and the Ganja which has been marked as Material Exhibit-2. In cross- examination, this witness has stated that these articles, the attache and the alleged Ganja, were not sealed. From the evidence of this witness, it is also apparent that infact the material exhibits that were produced before the Tribunal Court were not sealed.

8. PW 10 who is Incharge of the Malkhana has stated that he has given a written report which has been marked as Exhibit-5, with objection, as according to the appellant, PW 10 is not the competent person to give an opinion regarding the nature of the seized article or to certify that the seized substance was cannabis substance or not. This witnes