Gopal Prasad, J.(Oral) - The appeal is directed against the judgment of conviction and order of sentence dated 19. 06. 2013 and 27. 06. 2013 passed by Shri Atul kumar Shrivastava, Additional District & Sessions Judge 3rd West Champaran, Bettiah, in Trial No. 35 of 2009 (arising out of Bettiah P.S. Case No. 160 of 2009) G.R. No. 3114 of 2009 whereby the appellant has been convicted for offence under Sections 20C, 22C and 23C of the N.D.P.S. Act and sentenced to undergo rigourous imprisonment for ten years each and further fine of Rs. 1,00,000/- (one lac) and in default of payment of fine further sentenced to undergo simple imprisonment for two years.

2. The prosecution case as alleged by the informant Shri Rajeshwar Pandey, Junior A.S.I. of Nautan Police Station that while on patrolling he saw a black coloured motorcycle coming towards upon him loaded with a gunny bag and on seeing the police the motorcycle rider started fleeing away leaving his motorcycle, but on chase he was caught. The informant further alleged that 75 Kg. Ganja was recovered from the carrier of the motorcycle. Thereafter, the said Ganja was seized. Seizure list prepared and same was handed over to Baria police. The occurrence alleged to be took place at 8.30 A.M. in the morning and the matter was reported to the police station on 12. 08. 2009 at 6.45 P.M. F.I.R. was lodged on 12. 08.2009. After institution of F.I.R., the investigation proceeded and after investigation charge sheet submitted. Cognisance taken and charge was framed. During trial, eight witnesses were examined. The trial court taking into consideration the evidence of the witnesses convicted the appellant as mentioned above.

3. Learned counsel for the appellant has challenged the order of conviction and sentence recorded by the trial court on the ground that article alleged to have been seized on 12. 08. 2009 at about 8 A.M. It is submitted that appellant was apprehended and seizure was made at 8 A.M., at Nautan police station but the F.I.R. was lodged at 6.45 P.M. at Baria police station. It has further been stated that the articles seized were neither weight nor sealed at the place of occurrence. It has further been contended that article seized by Officer-in-Charge, Nautan police station whereas F.I.R. lodged at Baria police station. Thereafter, the article seized kept in Malkhana, but article seized was neither sealed nor the sealed of the Officer-in-Charge of the police station was put on it. It has further been contended that there is no mentioned in the entire evidence, when the sample was taken, though, order sheet shows Magistrate was appointed for sampling on 12.10.2009 and hence it is apparent that articles were kept more than two months without having been sealed, though, it has come in evidence that Magistrate was appointed for sampling, but the evidence of the Magistrate has not been recorded nor has been adduced evidence neither certification of the Magistrate was proved. The article was not weight or sampling. There is neither any evidence regarding certifying correctness of inventory so prepared nor there is certification by the learned Magistrate nor sampling of drugs nor weight of each packet has been taken and hence there is totally non-compliance of Section 52A, 55 and 57 of the N.D.P.S. Act. Neither certification of the Magistrate was proved nor article seized ever placed before the Court. Hence it is contended that the article seized was kept in Malkhana by the Officer-in-Charge but the same was not sealed and the sample having been taken but no date has been mentioned when the sample was taken and even Magistrate appointed after seizure of article more than two months, but no certification of the Magistrate has been made, hence the appellant has been prejudiced for non-compliance of Sections 52, 55 and 57 of the N.D.P.S. Act. as the possibility of the article seized being changed and hence order of conviction and sentence recorded by the trial court not is sustainable.

4. Learned counsel for the State however contends that article seized was brought before Officer-in-Charge of police station and same was kept in Malkhana. It has come in evidence that Magistrate was appointed and sample was taken.

5. However, taking into consideration the respective submissions, question for consideration whether prosecution has been able to prove the charge beyond reasonable doubt and safeguard provided has been complied or whether non-compliance of the safeguard has caused prejudice to the appellant. However, the evidence of P.W. 7 the informant that he apprehended the appellant with seized article kept in gunny bag and seizure list prepared, but in evidence stated that he did not inform about the occurrence to the C.O. nor to the Senior Officer. He has further stated that he did not make any inventory of the article seized. He has further stated that he did not seal the seized ganja at the place of occurrence nor he has ever weighed the seized article. He has stated that he handed over the article to the Officer-in-Charge, Baria Post police. In his evidence in paragraph 20 he has stated that Officer-in-Charge or Baria police station also did not seal the seized article. He has further stated that no sample was taken from the seized article before him. P.W. 3 is the Officer-in-Charge of Baria police station, to whom the seized article was handed over. In cross-examination he has stated that seized article which he got from the informant was not sealed and he also did not seal the seized Ganja and said Ganja was kept in Malkhana, though, he has stated that Judicial Magistrate himself sealed the sample and he did not seal. However, Judicial Magistrate has not been examined as an witness nor certification of the Magistrate has been proved or brought on record. There is not mentioned that when the sampling and sealing of the sample of the aforesaid seized article was made. However, he has stated that sealed Ganja not produced before him and has stated that he kept Ganja in his custody in Malkhana. Hence it is apparent that Ganja was kept in Malkhana was not in seal condition and the possibility that article kept was changed is not ruled out.

6. However, having regard to the evidence of witnesses, it is apparent that there is no mentioned in the entire evidence that how many packets of Ganja was seized from the gunny bag. There is no mentioned whether the Ganja was weight and what was the weight of each packet separately. There is no mentioned weight of each packet. There is neither any inventory nor there is any certification of the Magistrate nor there is any evidence that the matter was intimated to the Higher Officer.

7. Section 52-A of N.D.P.S. Act authorises the Magistrate to deal with the seized article and it provides that "the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs of psychotropic substances, thereafter the officer shall make an application to the Magistrate for the purpose of certifying the correctness of the inventory so prepared or taking, in presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

8. However, there is no evidence to the effect regarding Section 52A of N.D.P.S. that the Magistrate comply with the provision contain in Section 52A of N.D.P.S. Act as neither photographs of such drugs has been produced nor article produced before the court.

9. Section 55 of N.D.P.S. Act provides that an officer-in-charge of a police station shall take charge of and keep in safe custody of the article seized to affix his seal to such articles or to take samples of and from them all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

10. However, there is non-compliance of Section 55 of N.D.P.S. Act as per evidence of P.W. 3 and 7 as stated above neither sealed the article seized nor sealed the sample taken nor it has been sealed by the Officer-in-Charge of the police station.

11. Section 57 of the N.D.P.S. Act provides that whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate superior official.

12. Having regard to the fact that article seized neither kept in police station nor sealed and article kept in Malkhana without sealing and further there is violation of Sections 52A, 55 and 57 of N.D.P.S. Act and hence it has prejudice the appellant. Hence order of conviction recorded by the trial court is not sustainable.

13. Hence order of conviction and sentence recorded by the trial court is hereby set aside and appeal is allowed. Further the appellant is in custody, be set at liberty forthwith, if not required to be detained in any other case.