R.P.GUPTA,J. - (1.) THIS appeal is directed against judgment dated 21 -7-95 of Nirmala Singh, IInd Additional Sessions Judge, Raipur. The appellant has been convicted under Section 20(b)(i) of NDPS Act, 1985 for keeping in his possession of 10Kgs. Ganja on 15th May, 1994 at Station Road, Raipur at about 8.40 p.m. The ap­pellant had kept this Ganja in a box which he was carrying on in a Rickshaw.
(2.) ACCORDING to the prosecution, the Police party consisting of Sub-Inspector K. K. Singh (PW-6) along with other police officials and public witnesses received a secret information that Ganja was being carried in a rickshaw. The police party apprehended the Rickshaw when this ac­cused and one more person were sitting in Rickshaw carrying a tin box. The police party stopped them. The I.O. asked this accused, confronted this accused about suspicion and offered to him with whom be searched before a Gazetted Officer or a Magistrate. The accused did not exercise that option and agreed to be searched by the Sub- Inspector. So the Sub-Inspector searched his box and found Ganja in it. It was got weighted and found to be 10 Kgs. Two samples of 50 grams each were separated and sealed. The samples were sent to Forensic Science Laboratory, Raipur, where they were found to be Ganja. The trial Court has based conviction of the accused on the evidence of S.I. K. K. Singh (PW-6), PW-4 Nathu Prasad, a public witness, PW-3 Mohan, Rikshaw Puller, PW-5 Dadan Singh, constable, P W-2 Biselal who had brought a scale on the asking of police to weigh the 'Ganja' and PW-1 Munna Das a public witness. The trial Court found that the search was genuine and legal and that 'Ganja' had been recovered. The report of the F.S.L., tendered in Ex. P. 8. The Sub-Inspector had recorded the FIR after recovery of Ganja.
(3.) ALTHOUGH Counsel for appellant has not come to argue the matter, yet the grounds of appeal suggests that objection has been raised regarding compliance with the provision of Section 50 of NDPS Act and also regarding reliability of witnesses about the recovery. There are certain salient features in this case from evidence which is their own influence on the prosecution story (1) PW-2 Biselal who weighed the Ganja found it 23-24 Kgs. nearly (2) Rikshaw Puller has stated in cross-examination that there were two persons sitting in his Rikshaw, each one of whom has one tin box. Nothing about it has been stated by other witness (3) Dadan Singh, constable (PW-5) is an accompanying police party, who says that no notice was given to the accused regarding being searched before a Gazetted Officer. This he said in cross-examination and he was not challenged by public prosecutor in fur­ther examination on this aspect. So he is contradicting the I.O. about it. Dadan Singh also says that another person was sitting in the Rikshaw and that there were two or three tin boxes in the Rikshaw. The Rikshaw Puller denies anything sealed in his presence. Similarly, Dadan Singh denies that anything was sealed at the spot of recovery and that everything was taken to the Police Station. This is contradictory to the statement of Investigating Officer who says that samples were sealed at the spot. The I.O, does not say there is no evidence about it, where the samples were kept after being sealed and where the rest of the Ganja was kept. There is no mention what was the nomenclature of the seal. In the report of the F.S.L., there was no mention of the seal on sample nor any mention about any sample seals. This creates suspicion about the identity of what was sent as samples and that was recovered. It is incumbent on a police officer who recovered the contraband to take precau­tion that the samples are sealed in a man­ner to clear suspicion of mixing up with any other article. The suspicion of mixing up with any other article. The sealing should be done in the presence of witnesses. Sec­tion 55 of NDPS Act prescribes certain mode of taking samples at the Police Sta­tion. It is in the following terms:- "Section 55. Police to take charge of ar­ticles seized and delivered-An officer-in-charge of a Police Station shall take charge of an keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that Police Station and which may be delivered to him and shall allow any officer who may accompany such articles to the Police Station or who may he deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also he sealed with a seal of the officer-in-charge of the Police Station." This provision should be construed as laying down that if samples have been taken at the site of recovery. Then, they may be taken before S.H.O. also. But whatever is deposited in the Police Station, it shall remain under the charge of S.H.O. and his seal. All this has to be established by evidence. No such evidence has been produced in this case. On the other hand, the; c is no mention of that seal was used while sampling was donnor any evidence if the samples received by the F.S.L. had any seals on them.;