(Per: HONOURABLE MR. JUSTICE V.N. SINHA)

1. Heard learned counsel for the appellant and the State.

2. Appellant has challenged judgment dated 11.3.2011/order dated 18.3.2011 passed by Additional Sessions Judge-VII, Patna in Special Case No. 29/2009, whereunder appellant has been held guilty for the offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the “Act”) and sentenced to undergo R.I. for 15 years with fine of Rs.1,50,000/-, in default of payment of fine to undergo R.I. for further three years.

3. Appellant was apprehended along with two bags of Narcotic substance i.e. Ganja weighing 11 Kg. each on 6.4.2009 at about 9 P.M. while he was travelling in a three-wheeler bearing Registration No. BR-16M-1311 at the new bypass road, Patna in Village- Marcha-Marchi by the Officer-in-Charge of Bypass P.S. as the Officer-in-Charge having received confidential information that contraband narcotic was being transported on a three-wheeler had gone to Village Marcha-Marchi. Having identified, searched the three-wheeler the Officer-in-Charge found the Narcotic concealed in the rear of the three-wheeler drew his self statement on 6.4.2009 at 21 hrs. and seized the concealed contraband narcotic i.e. ganja in two bags weighing 11 kg. each and the three-wheeler bearing Registration No. BR-16M-1311 vide seizure-list drawn on 6.4.2009 at 21.30 hrs. The seized narcotic, the three-wheeler and the appellant were taken to the Bypass Police Station by the Officer-in-Charge and Bypass P.S.Case No. 25/09 dated 6.4.2009 was registered against the appellant for the offence under Section 20/22 of the Act on 6.4.2009 at 22.15 hours on the basis of self statement and the seizure-list earlier drawn by the Officer Incharge and appointed Sri Ganesh Singh as Investigating Officer of the case.

4. Having seized the contraband the Officer-in-charge prepared the seizure memo of the seized narcotic and the I.O. investigated the case by recording the statement of the members of the search party as also by visiting the place of occurrence i.e. in front of Marchi Dharamshala and having obtained report from the Director, Forensic Science Laboratory, submitted charge-sheet finding the offence under Sections 20 and 22 of the Act to be true against the appellant.

5. During trial the prosecution examined six witnesses:- P.W.-1 Mahesh Kumar Officer-in-Charge of Bypass Police Station on whose self statement and on the basis of the seizure made by him the present case was registered. P.W.-2 to 4 are the members of the raiding party. P.W.-5 Chandra Prakash Chandra A.S.I. is the officer, who recorded the self statement of the informant and in whose presence seizure-list was drawn after weighing of the sealed packs. P.W.-6 is Ganesh Singh, the I.O. of the case.

6. In the light of the evidence of the prosecution witnesses, P.W.1 to 6 the trial court recorded the judgment of conviction holding the appellant guilty of the offence under Section 20(b)(ii)(c) of the Act and sentenced the appellant to undergo R.I. for 15 years with fine of Rs. 1,50,000/-, in default of payment of fine to serve another term of R.I. for three years.

7. Learned counsel for the appellant has assailed the aforesaid judgment on the ground that the Officer-in-Charge, who seized the narcotic from the three-wheeler was not authorized to effect search, seizure of the narcotic from the three-wheeler as he is not an officer empowered under Section 42 of the Act. He further assailed the judgment on the ground that even assuming that Officer-in-Charge was authorized to effect search and seizure he has not observed the safeguards required to be observed before and after effecting search and seizure of the contraband in the light of the provisions of Sections 52, 55 of the Act. The samples of the contraband seized was not kept under seal by the Officer-in-Charge soon after it was seized on 6.4.2009 at 21.30 hrs. and sent for chemical exami