Hon'ble Mr. A.K. Shrivastava, J.

1. This is an appeal under Section 374 of the Code of Criminal Procedure by the accused assailing the judgment of conviction and order of sentence dated 10-3-1998 passed by learned Special Judge, Sagar, in Special Case No. 1/98, convicting the appellant under Section 8/20(b) of the Narcotic Drugs and Psychotropic Substances Act (for brevity "Act") and thereby sentencing him to suffer two years' RI and to pay fine of Rs. 2500/- and in default of payment of fine further SI for 6 months.

2. In brief, the case of the prosecution is that an information was received from the informant that one person near Agga Tiraha is carrying with him Ganja, which is kept in his suitcase. On receiving the information, Sub Divisional Officer, Shri. R.L. Rathore with other police staff arrived at the spot and in presence of witnesses Rustam Khan and Maqbool Khan inquired from that person. On being asked that person told his name to be Govind Soni and he also gave his consent to take his search. It is further the case of prosecution that the appellant told that key of the suitcase has been misplaced. Thereafter, the suitcase was got opened in which the Ganja was found. The Ganja was seized in presence of witnesses and on weighing it was found to be 2.5 kg. Thereafter, 50 grams contraband article was taken out from the bulk and it was scaled and thereafter it was sent for chemical examination. After receiving the report of Chemical Examiner affirming the report of presence of Ganja in the sample, the charge-sheet was submitted against the appellant.

3. Learned Trial Court framed the charge under Section 8/20 of the Act, which the appellant denied and prayed for trial.

4. The prosecution thereafter examined its witnesses but accused did not choose to examine any witness in support of his defence although his defence is of false implication.

5. Learned Trial Court by the impugned judgment has convicted the appellant under Section 8/20 of the Act and sentenced him as mentioned hereinabove.

6. In this manner, this appeal has been filed by the appellant.

7. I have heard Shri. Dwivedi, Public Prosecutor for respondent/State and perused the record.

8. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.

9. On bare perusal of the seizure memo (Exh. P-1), dated 8-12-1997, this Court finds that nowhere it has been mentioned that substance, which has been seized is having flowering or fruiting tops. However, the seized substance which was sent for chemical examination and when the sealed packet was opened by Chemical Examiner it was found that seized substance was containing flowering and fruiting tops. If the seizure memo of the alleged contraband article (Exh. P-1) is tallied with the sealed packet received by the Chemical Examiner, it appears that the substance which was seized at the spot was not sent to the Chemical Examiner, but, altogether a different substance was sent. Because in the seizure memo (Exh. P-1) nowhere it has been mentioned that contraband article which has been seized is having flowering or fruiting tops although in the sealed packet which was received by Chemical Examiner contraband article was containing flowering and fruiting tops. This Court has failed to digest this fact that if the seized substance was not having flowering or fruiting tops, have in the sealed packet the flowering and fruiting tops have come out from that substance. Thus, it raises heavy doubt that the substance which was seized by seizure memo (Exh. P-1) is the same article which was received by the Chemical Examiner.

10. The seizure memo of alleged contraband article (Exh. P-1) has been prepared not by an illiterate or ordinary person but by Senior Sub-Divisional Officer of Police having well knowledge about the provisions of the Act. Had there been flowering and fruiting tops in the contraband article, which was seized at the spot on 8-12-1997 (Exh. P-1) definitely it would have been