MAHENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) NOBODY appears on behalf of the appellant. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court.

(2.) HEARD learned amicus curiae and learned counsel for the State.

(3.) FROM perusal of the records, it is apparent that report has neither been obtained from the chemical laboratory, excise department nor the prosecution has brought on record, although the I.O. had stated in his evidence that he had sent the sample of the seized article i.e. Ganja to the chemical laboratory, excise department for examination. However, he has not stated whether he procured the report from the chemical laboratory, excise department. However, the report of chemical laboratory, excise about seized Ganja has not been produced on record. Hence, it is not established that the seized articles were Ganja. However, taking into consideration the entire evidence, it is stated that the appellant was apprehended and six Kgs. of Ganja was recovered from him. However, there is no evidence whether the seized Ganja was weighed. There is no evidence that sample was taken out from the seized Ganja and was put in sealed cover. Hence, there is violation of Section 52 and 55 of the N.D.P.S. Act as well. However, there is no evidence that who sealed the sample and who sent the sample for chemical analyst report, the said report has not been procured and brought in evidence to suggest that the sealed articles were Ganja. Hence, there is strict violation of Sections 52 A and 55 of the N.D.P.S. Act. Hence, in absence of report that seized articles were Ganja, the prosecution has not been able to prove that the seized articles were Ganja. Hence, the order of conviction and sentence recorded by the lower court is set aside and this appeal is allowed.