Non-compliance with mandatory provisions under the N.D.P.S. Act, lack of support for the prosecution case, and doubts regarding the authenticity of the sample sent for chemical examination led to the setting aside of the judgment.

1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 22nd December, 2014 and 23rd December, 2014, respectively, passed by learned Principal Sessions Judge, Latehar in connection with N.D.P.S. Case No.01 of 2012, arising out of Balumath P.S. Case No.02 of 2012, whereby the appellant has been held guilty for the offence punishable under Section 18 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of making payment of fine further to undergo simple imprisonment for one year. The period of detention already undergone shall be set off against the sentence of imprisonment under the provision of Section 428 Cr.P.C.

2. The fact, in brief, is that the informant, who happens to be a Police Officer, was in receipt of secret information that a person travelling on Gupta bus, bearing Registration No.BR-2D-3998 has been carrying opium in his airbag for smuggling. Physical description as well as wearing apparel of the suspect was also disclosed. Considering the information so received, the Officer-in-charge put a check on the road near the police station. After arrival of said Gupta bus, the person having aforesaid description was found standing on the rear door of bus. He was apprehended and the matter was informed to Circle Officer (P.W.1), who also reached to the place. In presence of Vinay Manish R. Lakra (P.W.1), the then Circle Officer, Balumath, District Latehar, the airbag which the suspect was holding was checked and a polythene packet containing opium in semi solid form, weighing 1.431 Kg., was recovered. Accordingly, seizure list was prepared by P.W.1 and signed by witnesses and the informant as well. The informant, who was then posted as Officer-in-charge of Balumath Police Station, had recorded self statement and registered a case, being Latehar, Balumath P.S. Case No.02 of 2012 dated 3rd January, 2012, under Sections 15, 17, 18 and 22 of the N.D.P.S. Act, 1985.

The investigation was carried out; sample of recovered opium was sent to Forensic Science Laboratory for its examination; statements of witnesses were recorded; and after concluding the investigation, charge sheet against the appellant was submitted and, accordingly, cognizance was taken.

3. Charges under Sections 15, 17, 18 and 22 of the N.D.P.S. Act against the appellant were framed to which he pleaded not guilty and claimed to be tried.

To substantiate the charges, the prosecution has examined altogether six witnesses. The defence of the appellant in the Trial Court was of total denial of the allegation levelled.

Learned Sessions Judge, at the conclusion of trial, placing reliance on the evidence and documents, held the appellant guilty for the offence punishable under Section 18 of the N.D.P.S. Act and inflicted sentence as indicated above.

4. The appellant has assailed the impugned judgment on the ground that the provisions of Sections 42 and 50 of the N.D.P.S. Act, 1985 have not been complied with. No compliance of Section 52(A) of the N.D.P.S. was done. Since the Investigating Officer could not be examined, what happened to seized article could not be brought on record.

Furthermore, under what circumstance sample from seized article was taken and whether procedure laid down under the Act was complied with or not is also unknown. According to the evidence of P.W.1 and P.W.3, the article seized from possession of the appellant was handed over to the Officer-in-charge of the said police station (P.W.2). In Para-10, P.W.1 has stated that he could not know whether sample from seized article was taken or not. According to the statement of P.W.1, the Officer-in-charge got the article weighed and it was about 1½ kg. but the article so seized was not weighed in his presence. P.W.1 has further stated that the article so seized was sealed and it was bearing the signature of this witness as well as signature of appellant and the Officer-in-ch