The prosecution failed to establish the appellant's guilt beyond a reasonable doubt, revealing critical inconsistencies and procedural lapses in adhering to the NDPS Act.

JUDGMENT :

RAMESH CHAND MALVIYA, J.

1. Heard Mr. Rajiv Kumar Singh, assisted by Mr. Narendra Kumar Singh, learned counsel for the appellant and Mr. A. M. P. Mehta, learned APP for the State.

2. The present appeal is directed against the judgment and order of sentence dated 30.11.2007 passed by the learned Additional Sessions Judge-I-cum-Special Judge (NDPS), Bhojpur at Ara in NDPS Case No. 01 of 1994 arising out of Ara Mufassil P.S. Case No. 03 of 1994 whereby the learned trial Court has convicted the appellant under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has sentenced to undergo rigorous imprisonment for a period of five years and also to pay a fine of Rs. 50,000/- and in default of payment of fine he shall further undergo rigorous imprisonment for a period of one year.

3. As per the allegation in the FIR being Ara Muffassil P.S. Case No. 03 of 1994 instituted by one Sona Lal Singh, Sub-Inspector that he received secret information that a person keeping Ganja in a gunny bag on a bicycle from Dobaha Bazar towards Basantpur. After making a sanha entry being Entry No. 66 of 1994 he along with police personal and the informant proceeded to verify the truth of the information. On seeing the police party all the accused persons left the bicycle and tried to flee away but he was caught with the help of police. The persons, who was identified himself as the accused of the appellant, herein. On search in presence of two independent witnesses, Ganja wrapped with polythene paper was found and weighted as 8 ½ kg. It is further alleged that on being interrogated he disclosed that he had purchased Ganja at the rate of Rs. 700/- per kilogram from one person of village Masarh for sale.

4. On the basis of this written report, Ara Mufassil P.S. Case No. 03 of 1994 was drawn and after investigation, charge sheet against the accused was filed. Cognizance of offence was taken on 24.02.1995 under Section 20 (b) of the N.D.P.S. Act and charge was framed against the accused on 29.04.1995.

5. On behalf of the prosecution, total seven witnesses were examined to substantiate the charges leveled against the accused/appellant, out of them, PW-1 Janardhan Choudhary, PW-2 Ravi Shanker Singh, PW-3 Dudhnath Thakur, PW-4 Dukhit Ram, PW-5 Narain Chandra Das, PW-6 Shree Ram Shah and PW-7 Sonalal Singh and has also exhibited certain documents. PW-3 and PW-4 have also been declared hostile by the prosecution.

6. PW-1 in his examination-in-chief stated that on 05.01.1994 around 4.30 P.M. at near Vindeshwari Sao’s shop on the road from Dhobha to Basantpur an accused was arrested who was carrying Ganja on his bicycle. On search, Sub- Inspector recovered 8 ½ Kg. of Ganja and in front of two independent witness he prepared the seizure list on which he put his signature and independent witnesses also put their signatures on it which is marked as exhibit-1 and 1/A.

6.i. In his cross-examination, he stated that the place where he was having sweets is near Dhobha thana. He saw 50-100 people gathering around the chowk and he did not saw how many persons were having bicycle with them. When he went near the place of occurrence he saw that bicycle was standing at that place and at the carrier of the bicycle he saw Ganja and Odiya in polythene bag. He was not having information that bicycle belongs to whom and what name was of bicycle. He further stated that he also cannot state about the colour of the bicycle. He got the information about the occurrence from the Sub-Inspector and seized Ganja was measured in thana by bara babu. For measuring the seized Ganja Chowkidar bring taraju and batkhara from a shop and he did not remember the name of the said Chowkidar. After getting information about the occurrence from the Sub-Inspector PW-1 did not ask about the occurrence from any other person. He saw seized Ganja at thana and earlier he has seen Ganja at many places including shop. He has purchased Ganja many times for use in marriage and other pr