The statutory mandate as contained in Section 55 of the N.D.P.S. Act with regard to safe custody of the sample was violated, leading to doubts about the prosecution's case.

Manindra Mohan Shrivastava, J.

1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 20 November, 1995 passed by learned Special Judge being the Sessions Judge, Bilaspur in Special Case No. 186/1994, by which the Appellant has been found guilty for commission of offence under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the N.D.P.S. Act") and has been sentenced to undergo R.I. for 2 years and fine of Rs. 2,000/-, in default of payment of fine additional R.I. for 6 months.

2. The case of the prosecution is that on 11.10.1994, an information was received by Inspector R.K. Rai regarding arrival of contraband ganja in village Sambalpuri and on receipt of such information, head constable Lallan Singh and constable -Kumar were sent for enquiry. The said information was recorded in Rojnamcha Sanha at Sr. No. 307. Thereafter, on 12.10.1994, Head Constable Lallan Singh telephonically informed to the Inspector R.K.Rai in the police station that ganja is in transit and likely to arrive, whereafter the Inspector, Investigating Officer in the present case proceeded for the scene of occurrence and information was recorded in Rojanamcha Sanha at Sr. No. 323 on 12.10.1994 and arrived at Sambalpuri - Pand Road. Further case of the prosecution is that about 12:45 p.m. the accused/Appellant was seen coming on a cycle, who was intercepted and the accused was informed that he has to be searched and was also informed that he may get the search conducted either through the police inspector or by a gazetted officer or Magistrate, whereupon, the Appellant gave his consent vide Ex. P-7. Thereafter, search was carried out and 2 packets containing 4 kg. ganja found inside a bag kept in the cycle were seized vide seizure memo of Annexure P-2 in the presence of seizure witnesses Ravi Shankar (P.W.2) and Shivkumar Tiwari (P. W.3) and for the purposes of drawing samples, 50 gm. ganja was taken out from each of the 2 packets and sealed. Dehati nalishi was recorded at the spot immediately after seizure vide Ex. P-l A. The Appellant was arrested vide arrest memo (Ex. P-l5), Seized ganja, cycle, dehati nalishi and the Appellant were taken to Police Station - Hirri by Head Constable Lallan Singh and after arrival, FIR was registered. Seized articles i.e. two packets of seized ganja along with 2 samples of 50 gm each were handed over to H.C.M. Aitwa Kujur for safe custody in malkhana vide memo (Ex. P-2). The information regarding seizure and arrest was forwarded to the S.D.O. (P), Kota vide Ex. P-14 on 12.10.1994. The samples of ganja were sent for chemical examination to Forensic Science Laboratory (F.S.L.) along with memo of Superintendent of Police vide Ex. P-8 which was received in FSL and an acknowledgment of receipt was issued vide Ex. P-9. The F.S.L. report (Ex.P-11) was received with covering memo Ex. P-10. The FSL report disclosed a positive result that the samples drawn were ganja.

3. After completing usual investigation, a charge sheet was filed in the Court. Charges were framed against the Appellant for commission of offense under Section 20 (b) (i) of the ND.P.S. Act. The Appellant abjured his guilt and pleaded innocence.

4. Prosecution, in order to prove its case examined as many as 4 witnesses namely B. L. Pandey (P.W.1), Ravi Shankar (P.W.2), Shiv Kumar Tiwari (P.W.3) and R. K. Rai (P.W.4). A solitary witness of defence Dashrath (D.W.I) was examined by the Appellant. The learned trial Court recorded the accused statement under Section 313 of the Code of Criminal Procedure and asked him regarding evidence and circumstances appearing against him, which were denied by the Appellant. Vide impugned judgment and order of sentence, the learned Court below found the Appellant guilty of commission of offence under Section 20 (b) (i) of the N.D.P.S. Act and has sentenced to undergo R.I. for 2 years with fine of Rs. 2,000/- with usual default clause.