Ramdhari Mahto vs The State of Bihar

Gopal Prasad, J.—No one appears on behalf of the Appellant. Mrs. Vimala Kumari, Advocate is appointed as amicus curiae to assist this Court.

Heard learned Counsel for the amicus curiae and learned Counsel for the State.

The Appellant has been convicted u/s 20A of the N.D.P.S. Act and has been sentenced to undergo rigorous imprisonment for two years as well as fine of Rs. 10,000/- and in failure to pay the aforesaid fine, he will undergo rigorous imprisonment for one year.

The prosecution case as alleged is that on secret information that Ramdhari Mahto was cultivating Ganja trees, a raid was conducted and four big and five small Ganja plants were found cultivated on the west of the house between the hand-pump and the wall of the house of the accused and the police proceeded, FIR was drawn. The said Ganja plants were seized, seizure list prepared and the seized plants were handed over to one Doman Mahto on Zimmanama and after investigation charge-sheet was submitted and cognizance was taken and thereafter charge framed and order of conviction was recorded.

Learned amicus curiae submits that the said Ganja was neither sealed or sampled at the place of occurrence and subsequently it was brought back to the police station kept without being sealed which is violation of Section 55 of the N.D.P.S. Act. Though the said Ganja plants were sent for chemical examination on the order of Supervising Officer, but the Ganja plants were neither sealed nor sampled.

However, P.W. 5 in his evidence has stated that the raid was made on 13.10.1995 and the Ganja plants seized were handed over on Zimmanama to Doman Mahto. However, it is stated that he gave the leaf and sample of the few plants and sent for chemical examination but sending the sample without being kept properly sealed and sampled is violation of Section 55 of the N.D.P.S. Act. P.W. 5 has specifically stated that he has not taken the sample on the date of the seizure and notice was issued to Doman Mahto for depositing the Ganja plants which was given to him on zimmanama but when Doman Mahto did not send then he went with the Chaukidar and brought the Ganja plants 30.11.1995 and hence it is apparent that the Ganja plants kept with Doman Mahto without having been sealed to 30.11.1995 and in paragraph 22 the witnesses have stated that after one and half months of the seizure he brought the Ganja plants to the police station and however, there is no evidence that when it was sealed, sampled and when it was sent for the chemical examination, hence, having regard to the fact that since the Ganja plants were seized on 13.10.1995 but neither it was sealed nor sampled and was kept with Doman Mahto on zimmanama violating the mandatory provision of Section 55 of the N.D.P.S. Act. Further the said Ganja plants were taken on 30.11.1995 after long delay, hence under the facts and circumstances when the seized Ganja plants were not sealed and sampled and report with regard to the said Ganja plants is not worthy of confidence to be relied on, hence, the order of conviction and sentence recorded on the basis of the said report is not sustainable and hence it is hereby set aside and the appeal is allowed.

Shri A. K. Tripathi, shall be supplied a copy of this judgment and he shall be entitled for a fee of hearing payable by Patna High Court, Legal Aid Committee.