Discrepancies in evidence and procedural irregularities can raise doubts about the credibility of the seizure and handling of contraband, leading to the acquittal of the accused.

1. This appeal is directed against the judgment dated 25th of April, 1995 passed in Special Criminal Case No. 95/94 by the Special Judge (NDPS) & Fourth Additional Sessions Judge, Raipur. By the impugned judgment, the appellant has been convicted u/s 20 (b) (i) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo R.1. for 6 months and to pay fine of Rs.500/-, in default to further undergo R.I. for 1 month.

2. The facts, briefly stated, are as under:-

On 2.4.94, appellant- Itwariram was traveling in passenger bus No. OR-08-2213 belonging to Orissa State Road Transport Corporation. On a secret information Sub-Inspector - L.K. Pandey (PW-4) stopped the bus at forest barrier, Gariyaband and made a search in the bus. He found that the appellant was carrying a bag which was containing ganja. He took the appellant to the police station and prepared seizure memo Ex.P/1. According to the seizure memo, he seized 2 kilograms of ganja. A sample of 100 grams was separated and sample and the remaining ganja both were sealed in 2 different packets. On 12.4.94, the sample was sent for its examination to Excise Inspector -A.N. Saluja (PW-2), who prepared a report and expressed his views that the sample was that of ganja. However for confirmation, he advised for chemical examination from Forensic Science Laboratory (F.S.L.). Thereafter the sample was sent to F.S.L., Raipur, from where, a report (Ex.-P/2) was received. According to the F.S.L. report, the article sent was ganja. After Completion of investigation in the above manner, the charge-sheet was filed and the appellant was prosecuted u/s 20 (b) (i) read with Section 8 of the NDPS Act. During the trial, out of 2 panch witnesses namely Vishwanath Sinha (PW-I) and Shivkumar Dubey (PW-3), Shivkumar Dubey turned hostile. The learned Special Judge relied on the testimonies of Vishwanath Sinha (PW-I) and Sub-Inspector - L.K. Pandey (PW4) and held that it was proved that the appellant was found in possession of 2 kilograms of ganja, therefore, he was liable for punishment under the aforementioned Sections of NDPS Act.

3. I have heard learned Dy. Govt. Advocate appearing on behalf of the State who supported the judgment of Special Court.

4. I have also perused the records of the Special Court.

5. Vishwanath Sinha (PW-1) deposed that ganja which was seized by the police was in quantity of 5 kilograms. He remained unassailed on the fact that the ganja was in quantity of 5 kilograms. According to the prosecution and further according to the seizure memo the quantity of ganja was 2 kilograms. Even the Investigation Officer has also stated that the quantity of ganja was 2 kilograms. This contradiction in the evidence of 2 witnesses as also documents prepared by the police was a material contradiction. The learned Special Judge, vide Para-5 of the judgment, has simply said that on account of mistake, PW1 may have said the quantity as 5 kilograms in place of 2 kilograms, therefore, it was not very material. I am unable to accept the views of the Special Judge. I am of the view that where the contraband was weighed before the witnesses & the police, and a panchnama was prepared in presence of the witnesses, such difference in the quantity of contraband in the evidence of witnesses was material and the credibility of the seizure becomes shadowed.

6. It is an admitted position that the contraband came into the hands of the police at forest barrier, Gariyaband, but the seizure memo was not prepared at that place. The Investigation Officer and the panch witnesses have stated that the seizure memo was prepared in police station, Gariyaband. Even the seizure memo Ex.-P/1 shows that it was prepared in police station, Gariyaband. If the contraband was seized at forest barrier, normally, the seizure memo would have been prepared at that place and the police would not have taken the contraband in it possession without preparation of the seizure memo a