1. This appeal is directed against judgment dated 02-12-2010 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985'), Korea (Baikunthpur) in Special Case No. 40/2006. By the impugned judgment, accused/appellant Ramnande has been convicted under Section 20(b) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo simple imprisonment for 1 year.

2. The case of the prosecution, in brief, is as under :

On 25-11-2006, Tejnath Singh (PW-6) was posted as Assistant Sub-Inspector/Station House Officer at Police Station Patna. On that date, he received information from mukhbir that the appellant was carrying ganja for sale in Platina motorcycle from Ranai and he was going towards Patrapali. He recorded mukhbir suchna panchnama (Ex.-P/2) and also entered it into rojnamcha sanha (Ex.-P/25). He transmitted the information to Deputy Superintendent of Police, Baikunthpur vide Ex.-P/13 and also entered it into rojnamcha sanha (Ex.-P/26). Thereafter, he proceeded for further action. He stopped the appellant. On being enquired, the appellant told his name. The appellant was informed about his legal right under Section 50 of the Act, 1985. Consent of the appellant regarding search was recorded vide Ex.-P/3. Thereafter, Tejnath Singh (PW-6) searched the motorcycle bearing chassis NO. MD2DDDZZZNWE89919 and Engine No. DOM-CNG 25724 vide Ex.-P/5 in which a bag was found in the dickey. Thereafter, the bag of the appellant was searched, in which one polythin packet wrapped with paper was found. Identification of the article was conducted on the spot. Identification panch nama of the substance i.e. ganja was, prepared vide Ex.-P/6. After physical verification, it was found that the recovered article seized from the appellant was ganja. The ganja was weighed on the spot vide Ex.-P/7. The polythin packet was containing 5 kgs. of ganja out of which a sample of 100 gm. was prepared. The ganja and motorcycle were seized vide Ex.-P/9. The appellant was arrested on the spot vide Ex.:-P/10. Thereafter, Tejnath Singh (PW-6) came back to Police Station Patna and registered First Information Report (Ex.-P/18) in the police station. The property was handed over to Malkhana Moharrir for its safe custody and the action taken report was sent to the superior officer. The sample, was sent to Forensic Science Laboratory, Raipur for examination vide Ex.-P/20. Report (Ex.-P/22) was received therefrom, in which the test of garlja was found positive.

After completion of the investigation, charge sheet was tiled against the appellant in the Court of Special Judge under the Act, 1985, Korea (Baikunthpur), who conducted the trial and convicted and sentenced the appellant as mentioned above.

3. Shri Shakti Raj Sinha, learned counsel for the appellant contended that the evidence led-by the prosecution lacks requisite proof required to convict the appellant under Section 20(b) of the Act, 1985. The independent witnesses did not support the case of the prosecution. There is nothing in the testimony of the investigating officer Tejnath Singh (PW-6) to show that Section 50 of the Act, 1985 is complied with. He further argued that the garlja was not sealed by the Station House Officer before handing it over to Malkhana Moharrir. The sample was sent to Forensic Science Laboratory (FSL), Raipur belatedly and there is no explanation therefor. Therefore, there is possibility of tampering of the sample. The investigating officer did not prepare seal panchnama and specimen seal was not affixed on the requisite documents. The search of the appellant was not conducted according to the provisions of the Act, 1985. Hence, the appellant deserves acquittal.

4. Shri Tarkeshwar Nande, learned Panel Lawyer appearing on behalf of the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence award