The main legal point established is that procedural violations in the seizure and sampling process do not render the evidence inadmissible unless serious prejudice is proven.

Gopal Prasad, J.

1. The appellants have been convicted under Section 20(b)(ii)(C) of the NDPS Act and have been sentenced to undergo rigorous imprisonment for 14 years and to pay fine of Rs. 1,50,000/- each and in default of payment of fine, they have been directed to serve the sentence of 2 years.

2. The prosecution story as alleged in the complaint filed by the complainant Shambhu Nath Sahay alleging therein is that in course of routine checking by the Preventive Officer of Custom near Khagra Railway Gumti, Kishanganj a truck was seen coming from the side of Siliguri, signal Was given to stop and the said truck bearing registration no. WB-25/2051 stopped and thereafter the Preventive Officer started checking the truck in presence of the khalasi and driver and since the truck was found to be empty and polythene Tarpaulin was seen tightly tied on its hood, it created suspicion and even the smell of Ganja was coming out of the truck and hence the occupant of the truck were offered the choice for the search of the truck in the presence of Magistrate or Gazetted Officer. Thereafter the truck with the driver and khalasi was brought in the premises of Custom Office the officer started checking the truck in presence of independent witness, occupants of the truck and Superintendent of Police of Custom. On search 29 packets of Ganja rapped in polythene sheets were recovered from the truck which was weighed in presence of the witnesses and the occupant of the truck, in the office of custom which was weighed as 230 Kgs. The said contraband was seized, panchanama and seizure list were prepared with the signature of the occupants i.e. driver, khalasi and the independent witnesses. The driver and khalasi gave their voluntary statement disclosing the owner of the truck as accused no. 3, namely, Kashmir Singh and even accepted their guilt. The statements were recorded on which the occupants and independent witnesses also signed. The sample of the seized contraband Ganja was taken in presence of independent witnesses and sent for chemical test. On the said complaint the cognizance was taken and thereafter the charge was framed under Section 20(b)(ii)(c) of the NDPS Act and the trial proceeded.

3. During the trial eight witnesses were examined where P.W. 1 Ashim Kumar Mandal, Inspector Central Custom, P.W. 2 Vinay Kumar Jha, Superintendent of Police of Custom, P.W. 3 Basukinath Sahay, Inspector Custom, P.W. 4 Parmindar Nath Singh, Constable, P.W. 5 Tarakant Prasad Karan, P.W. 6 Birendra Kumar, P.W. 7 Samiullah and P.W. 8 Narendra Prasad Singh. The documentary evidence adduced are Ext.-1, interrogative statement of Bhajan Ghosh, Ext.-1/a interrogative statement of Avtar Singh, Ext.-2 movement register, Ext.-3 seizure list, Ext.-4 Panchanama, Exts.-5 and 5/a confessional statement of the two accused persons, Ext.-6 forward report, Ext.-7 annalyst report, Ext.-8 test of memo, Ext.-9 form.-F, Ext.-10 complaint petition.

4. After the evidence of the prosecution was closed the statement of the appellants were recorded under Section 313 and thereafter, hearing the parties and considering the oral and documentary evidence, the order of conviction and sentence were passed as stated above.

5. Learned counsel for the appellants contended that the seizure list witnesses have not been examined. The seizure list was not prepared at the place of occurrence and hence violation of Section 55 of the NDPS Act. Reliance was placed upon a decision reported in 2006(4) Eastern Criminal Cases 210 (Pappu Singh @ Manoj Kumar vs. State of Bihar) and further upon a decision reported in 2002(1) PLJR 75 (Dayanand Bharati vs. The Union of India).

6. Learned counsel for the State however contended that the prosecution has proved the case beyond all reasonable doubts and not taking the sample and seizure on the spot does not cause any prejudice and the violation of Section 55 even if assumed, then no prejudice has been caused and hence even if there is violation of t