JUDGMENT : ( 1. ) THE accused-petitioner Deosingh was prosecuted under section 34 (a) of the M. P. Excise Act, for allegedly being in possession of ganja, an excisable article without a licence, and convicted and sentenced to two months rigorous imprisonment and a fine of Rs. 200 in default of payment of which to two months further rigorous imprisonment. The conviction and sentence awarded to him by the trial Court have been upheld by the Sessions judge, Shivpuri, on appeal by him. ( 2. ) THE prosecution case is that on 9-7-1970 Shivkaran Dube (P. W. 6), head Constable of Police Station, Jigna, received information from an informer that the petitioner was carrying ganja in a bullock-cart. Consequently, he arranged a raid and held the accused while he was going on bullock-cart near chamaron-ka-Tapra. On being challenged by the Police-party, the accused produced a white bag in which ganja weighing 1 Kg. and 950 grams was found. A seizure-memo of the ganja was prepared at the spot and is marked Ex. P-3. Shivkaran Dube also recorded a first information report (Ex. P-4) at the Police station after the alleged recovery. In the course of trial the prosecution examined six witnesses. The accused denied having committed any offence and examined three witnesses in defence, in support of his plea that due to a quarrel between him and the Police-party on account of price of wheat sold by him, a false charge had been brought against him. ( 3. ) LEARNED counsel for the petitioner has urged that the conviction of the accused is unjust, improper and illegal inasmuch as it is not proved that the article alleged to have been recovered from the petitioner was ganja nor the recovery has been established. ( 4. ) S. K. Dube (P. W. 6) while supporting the prosecution story generally, has stated that the seizure-memo (Ex. P-3) was prepared at the Police Station after the accused had been brought there from the spot, whereas Shyamlal, a witness to the recovery, has stated that the seizure-memo was prepared at the spot. Another witness to the recovery is Ramdeen (P. W. 3), who has, of course, turned hostile and has denied the fact of recovery altogether. His statement is useless and is of no help to the prosecution. Another witness to the recovery is Ramdeen (P. W. 3), who has, of course, turned hostile and has denied the fact of recovery altogether. His statement is useless and is of no help to the prosecution. Mathuraprasad (P. W. 4) Head Constable, has also stated that the recovery was made at the spot, but the recovery memo (Ex. P-3) does not bear his signature and, therefore, it would not be safe to rely on his testimony on this point. It is significant that at the top of the seizure memo the case number is mentioned as 16 /70. Further, the weight of the article has also been mentioned as 1 Kg. and 950 grams and, thus, S. K. Dubes statement that the seizure memo was prepared at the Police Station appears to be correct. Shyamlal (P. W. 2) has also stated that the bag containing ganja was taken possession of by deewanji, meaning thereby S. K. Dube, at the spot from the accused. Thus, it is clear from the statement of this witness that the bag did not remain in possession of the accused after it was taken from him at the spot. S. K. Dube (P. W. 6)is silent on the point how the bag was taken from the spot to the Police Station. There is also absolutely no evidence that the article recovered from the possession of the accused was sealed in the presence of the witnesses and the seal was kept in tact. In these circumstances, it is open to the accused to argue that the article had been tampered with, as it has not been proved that the article, which was sent for examination to K. N. Kathare (P. W. 1), Excise inspector, was the same as was recovered from the accused at the spot. It was the duty of the prosecution to have led evidence to establish clearly where the recovery was made and in whose possession the article remained thereafter and what precautions had been taken to see that the article was not tampered with right from the stage it was taken from the possession of the accused upto the stage it was examined by K N. Kathare (P. W. 1) to find out whether it was an intoxicant. This having not been done, the prosecution cannot be said to have established that the article which was examined by K. N. Kathare (P. W. 1) was the same which was recovered from the possession of the accused at the spot. ( 5. ) THEN again, on going through the statement of K. N. Kathare (P. W. 1), I find that it has not been satisfactorily proved that the article sent to him was ganja. K. N. Kathare did not perform any test on the article. He is not an expert for finding out whether the article was ganja. He merely says that he smelt and rubbed it. But he admits that he has never smoked ganja. He has also admitted his ignorance as to how many types of ganja are there. He also admits that he did not perform chemical analysis of the article. He could not obviously have done it, because he is not a qualified analyst. This is the only evidence produced by the prosecution to show that the article was ganja. In my opinion, the evidence is most unsatisfactory. ( 6. ) BOTH the learned lower Courts have not dealt with the above aspects of the case at all. The learned Sessions Judge has merely summarised the evidence of the prosecution witnesses and has observed that the seizure-memo is proved In my opinion, this rinding alone was not sufficient to bring home guilt to the accused. Consequently, I am of opinion, that the conviction recorded against the accused is not legal and proper. ( 7. ) ACCORDINGLY, I allow the revision, set aside the conviction and sentence awarded to the accused-petitioner. He is on bail and need not surrender. His bail bond is discharged. The amount of fine, if paid, shall be refunded to him. Revision allowed.