The duty of the prosecution to prove the seizure of contraband article beyond reasonable doubt, the significance of independent witnesses, and the necessity of complying with statutory provisions under the NDPS Act.

1. This criminal appeal, presented under Section 36 (B) NDPS Act, read with Section 374 (2) of the Code of Criminal Procedure, is directed against the judgment of conviction and order of sentence dated 25.04.2001 passed by the Special Judge, Bastar at Jagdalpur (constituted under NDPS Act, 1985) in Special Case No. 41 of 2000, whereby the accused/appellant has been convicted under Section 20(B) (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act, 1985") and sentenced to undergo R.I. for 1 ½ year and to pay a fine of Rs.3,000/-, in default of payment of fine to undergo further R.I for 4 months.

2. Briefly stated, the facts of the case are that on 8-7-2000, Sub Inspector Alok Shrivastava (PW/1) received secret information from the inf0l111er that the accused/appellant, standing near the bus stand was having some Ganja in two bags. On receiving the said information, he prepared panchnama Ex.P/1 of the same and proceeded to the spot for entrapment along with the staff and witnesses Sheikh Mashuk (PW/2) and Massu Ram (PW/3). After issuing notice under section 50 of the NDPS Act, he searched the appellant before witnesses and seized 2.766 Kilograms Ganja from the two bags in his possession. Sub Inspector Alok Shrivastava (PW/1) stated that the Ganja found in two bags from the possession of appellant was separately weighed on the spot. The appellant was found in possession of 1.420 Kilograms of Ganja in one bag and 1.346 Kilograms in the other. He prepared weighing panchnama Ex. P /10, taken out four samples of 24 gms. each (2 from each bag), seized the Ganja vide Ex. Pill, arrested the appellant vide Ex. P/12, deposited the seized Ganjain Malkhana vide Ex. P/13 and sent a detail report of this incident to his senior officers vide Ex.P/17. Thereafter, the Investigating Officer sent all the four samples (two samples from each of the bag) out of the seized Ganja to Forensic Science Laboratory for chemical examination vide Ex.P/19 from where FSL report Ex.P/20 was obtained. Sub Inspector Alok Shrivastava (PW/1) registered the first information report vide Ex.P/14. On completion of investigation, the charge sheet was filed before the trial Court.

3. The trial Court framed charge against the accused/appellant under Section 20(B) of the Act. After recording the evidence of the witnesses, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him and pleaded innocence and false implication. On evaluation of the evidence and material available on record, the Special Court convicted and sentenced the accused/appellant as noted above. Aggrieved by this judgment, the appellant has preferred this appeal.

4. Smt. Kiran Jain, learned counsel appearing for the appellant submits that there is no evidence about search and seizure in the case as both the independent witnesses have turned hostile. Learned counsel further submits that the learned trial Court should have acquitted the appellant on the ground of non-compliance of Sections 42 and 50 of the Act which are mandatory in nature. In the Romamcha Sanha recorded by the Investigating Officer with respect to the secret information, it is nowhere mentioned that the information was Correct to his satisfaction and the consent given by the appellant to be searched by the Investigating Officer cannot be treated as free consent. Learned counsel further submits that section 55 of the Act has also not been complied with as is clear from Ex.P/19, letter of Superintendent of Police by which the seized article was sent to FSL and Ex.P/20, the FSL report. The seized article was sent to FSL under Ex.P/19 through Constable R. Ramkrit Taram while the FSL report Ex.P/20 shows that the same was received through Constable no. 347 Ramdin Markam. Thus, it cannot be held that the seized article was in safe custody and there was no likelihood of tampering with the samples. Learned c