JUDGMENT : Feelingaggrieved by the judgment of conviction and order of sentence dated 3.09.2009passed by learned Special Judge, N.D.P.S. Act, Mandsaur in Special Sessions Trial No. 81 of 2008 convicting the appellant under Section8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafterreferred to as "the Act") and thereby sentencing him to suffer R.I.for 5 years with fine of Rs . 25,000/-, in defaultfurther RI for six months, this appeal has been preferred under Section 374’(2) Cr.P.C . 1973. 2.In brief the case of the prosecution is that on 16.12.2004 an information wasreceived by Assistant Sub Inspector D.C. Nirwan fromthe informant that the appellant on one Kawasaki motorcycle having registrationNo. MP-44-B/8392 is carrying black coloured bagcontaining contraband article "ganja" is going from Neemuch to Mandsaur and he can becaught red handed. On this, the Assistant Sub Inspector in presence of twoindependent witnesses reduced the information given by the information in Rojnamcha Sanha and Panchnama was prepared. Looking to the urgency searchwarrant could not be obtained and the Panchnama inthat regard was also prepared. The Assistant Sub Inspector along with police force, reached to village Bahi Parshwarnath and noticed that the appellant carrying a bagwas coming on the motorcycle. The motorcycle was stopped and on being enquiredfrom the appellant he named his name " Vijendra Kumar". Notice of Section 50 was given to the appellant and he stated thathe would like to give his search to the Assistant Sub Inspector. On beingsearched, nothing was found from his person but the bag which was hanging bystring on his neck, in that bag 5 kg. " ganja "was found. The contraband article was burnt and on the basis of its odour , the presence of "ganja" was found in theform of leaves. Two samples of the contraband articles were taken out and aftersending the same they were sent for chemical examination. 3.After the investigation was over, a charge sheet was submitted and the case wastried by the learned Special Judge. 4.The learned Special Judge on the basis of the allegations made in the chargesheet framed the charges punishable under Section 8/20 of the Act, which weredenied by the appellant and he requested for the trial. 5.In order to prove the changes, the prosecution examined its witnesses and alsoproved certain documents. 4.The learned Special Judge on the basis of the allegations made in the chargesheet framed the charges punishable under Section 8/20 of the Act, which weredenied by the appellant and he requested for the trial. 5.In order to prove the changes, the prosecution examined its witnesses and alsoproved certain documents. The defence of appellant isof false implication and the same defence be setforth in his statement recorded under Section 313, Cr.P.C .in order to prove his defence he examined threewitnesses namely Bharatram Bhati (D.W. 1), Soloman Gulab Singh (D.W. 2) and Shashikant Das (D.W. 3). The learned Trial Judge on the basis of the evidence placed on recordcame to hold that the charges are proved against the appellant and eventuallyconvicted him and passed the sentence which I have mentioned hereinabove. 6.In this manner the present appeal has been filed by the appellant assailing hisjudgment of conviction and the order of sentence. 7.The contention of the learned counsel for the appellant is that if thetestimony of the prosecution witnesses is considered in proper perspective, itis gathered that the contraband article which was seized were leaves only andtherefore, it is difficult to hold that the contraband article is"ganja". In this context learned counsel has invited my attention toDefinition of "ganja" as defined under S. 2 (iii) (b) of the Act.Further learned counsel submits that it is borne out from the testimony ofInvestigating Officer as well as Panch witness Babulal (P.W. 1) that "ganja" was not seized, onthe contrary "bhang" was seized and therefore, the case of theprosecution becomes highly suspicious. 8.On the other hand, Shri Dipak Rawal , learned Public Prosecutor has argued in support of the impugned judgment. 9.Having heard learned counsel for the parties, I am of the view that this appealdeserves to be allowed. 10.On going through seizure memo Ex.P . 8 this Courtfinds that in a black bag dry leaves were found. The same description has beenmentioned in the test Panchnama of the contrabandarticle, Ex.P . 9. In this Panchnama it has been mentioned that after burning the green leaves, on the basis ofsmell it is opined that the contraband article is Ganja. On going through theevidence of Seizing Officer Assistant Sub Inspector D.C. Nirwan ,in Para 11 of his examination-in-chief, it is gatheredthat green leaves were found in the bag of appellant. 9. In this Panchnama it has been mentioned that after burning the green leaves, on the basis ofsmell it is opined that the contraband article is Ganja. On going through theevidence of Seizing Officer Assistant Sub Inspector D.C. Nirwan ,in Para 11 of his examination-in-chief, it is gatheredthat green leaves were found in the bag of appellant. Nowhere the SeizingOfficer is deposing that dry leaves were found though it has been so mentionedin Panchnama Ex.P . 9. In para 23 of his cross-examination the Seizing OfficerAssistant Sub Inspector has admitted that he understands the distinctionbetween flower and leaves. Hence, according to me since nowhere it has been sostated by the Seizing Officer that the contraband article which was seized washaving flower and fruiting tops, according to me, the contraband article whichwas seized on the spot was not ganja as defined in Section 2 (iii) (b) of theAct. It would be condign to quote the definition of "ganja" asdefined in the clause of the Act which reads thus : -- "S.2............................... ( i ) ........................... (ii ) .................. (iii ) .................. (a ) .................... (b) ganja , that is, the flowering of fruiting tops of thecannabis plant (excluding the seeds and leaves when not accompanied by thetops), by whatever, name they may be known or designated; and" Sincethe contraband article which was seized at the spot do not tally with the definition of "ganja" I am of the view that thecontraband article which was seized was not a "ganja". 11.Apart from this, the statement of Sub Inspector Anil Singh Thakur (P.W. 9) who is the Investigating Officer, in his examination-in-chief issaying that the contraband article was bhang. Nowhere he is saying that the contraband article which was seized was ganja. Since thiswitness was not declared hostile, I am of the view that prosecution is bound byhis evidence and therefore, the prosecution is bound to accept that thecontraband article was not ganja but bhang. In this context it would beprofitable to place reliance on a decision of the Supreme Court in the case ofRaja Ram vs State of Rajasthan, 2005 SCC ( Cri .) 1050 wherein in para 9, theApex Court has held as under: -- "9.But the testimony of P.W. 9 Dr. Sukhdev Singh, who isanother neighbour , cannot easily be surmounted by theprosecution. Sukhdev Singh, who isanother neighbour , cannot easily be surmounted by theprosecution. He has testified in very clear terms that he saw P.W. 5 making thedeceased believe that unless she puts the blame on the appellant and hisparents she would have to face the consequences like prosecution proceedings.It did not occur to the Public Prosecutor in the Trial Court to seek permissionof the Court to heard (sic declare) P.W. 8 as a hostile witness for reasonsonly known to him. Now, as it is, the evidence of P.W. 8 is binding on theprosecution. Absolutely no reason, much less any good reason, has been statedby the Division Bench of the High Court as to how P.W. 8’s testimony can besidelined." Thesame view has been taken by the Supreme Court in another decision in the caseof Mukhtiar Ahmed Ansari vs. State (NCT of Delhi). In para 7 of thecross-examination Investigating Officer Anil Singh Thakur (P.W. 9) is saying that bhang was kept in the bag which was being carried bythe appellant. Hence, I am of the view that the evidence of the prosecution isnot at all firm that the contraband article was "ganja". 12.It would be fruitful to scan the testimony of Panchwitness Babulal (P.W. 1) who was also not declared hostileand who has stated that only green leaves were seized having smell akin to thatganja. however in para 16 ofhis cross-examination, he has stated that at the spot leaves of bhang wereburnt. Another Panch witness Jaswant Singh (P.W. 2) is also saying that green leaves were seized from the appellant.Thus, from the testimony of these witnesses, one can infer that ganja asdefined in the Act was not seized, but some green leaves were seized. On thebasis of the evidence placed on record, it is difficult to hold that thecontraband article which was seized was ganja or bhang. Babulal (P.W. 1) in his examination-in-chief is saying that green leaves whose smellakin to that of ganja was coming out were seized while in the cross-examinationhe is saying that leaves of the bhang were burnt. Hence, it is difficult tohold what was actually seized. Apart from this these two witnesses cannot besaid to be independent Panch witnesses for the simplereason that although they have categorically stated that they did not giveevidence on behalf of the prosecution more than once, but on going through thecertified copies of documents Ex.D . Hence, it is difficult tohold what was actually seized. Apart from this these two witnesses cannot besaid to be independent Panch witnesses for the simplereason that although they have categorically stated that they did not giveevidence on behalf of the prosecution more than once, but on going through thecertified copies of documents Ex.D . 28 to D. 45 it isgathered that in several cases these two witnesses were made as Panch witnesses and therefore, one can infer that thesewitnesses are pocket witnesses to the prosecution and therefore, no reliancecan be placed upon their statements. 13.True, the samples which were received by the Chemical Examiner, the ChemicalExaminer found that the substance which was sent was containing flowering andseeds tops (See chemical report Ex.P . 25) but, whenthat substance was seized and sealed at the spot it was not containing anyseeds and flowering tops then how the samples which were received by theChemical analyst in those samples flowers and seeds came out. The sealedsamples were in the Police Station for four days and the seal of the policestation also remained in the Police Station and therefore, there are chances tochange the substance and this can be inferred that because the substance waschanged from the sealed packet, the chemical analyst when opened the sealedpacket found the substance having flowers and seeds. 14.On going through the seizure memo Ex.P . 12 in whichthe description of two sealed samples of contraband articles has beenmentioned, simply it has been mentioned that they were sealed by putting theseal of Police Station in presence of Panch witnesses Jaswant Singh (P.W. 2) and Babulal (P.W. 1). No where it has been mentioned .that on the sealed samples signaturesof the Panch witnesses were taken. Inanother Panchnama Ex.P . 10 of taking out the samples of contraband articles from the bulk also it has notbeen so stated that after putting the seal of the Police Station, thesignatures of the Panch witnesses Jaswant Singh (P.W. 2) and Babulal (P.W. 1) were taken on thesealed packet although the names of these two Panch witnesses are mentioned on these Panchnamas . 10 of taking out the samples of contraband articles from the bulk also it has notbeen so stated that after putting the seal of the Police Station, thesignatures of the Panch witnesses Jaswant Singh (P.W. 2) and Babulal (P.W. 1) were taken on thesealed packet although the names of these two Panch witnesses are mentioned on these Panchnamas . 15.On going through the covering letter of the Superintendent of Police, Mandsaur , dated 19.12.2004, Ex.P .23 by which the contraband articles were sent to Chemical Analyst, also thisfat did not find place that the sealed samples contains the signatures of the Panch witnesses and only this much is mentioned that sealedsamples contains the seal impression of the Police Station. Inthe Chemical Analyst Report Ex.P . 25 also thisfact did not find place that sealed packets of the samples of contrabandarticles were containing signatures of the Panch witnesses on the chit. In these state of affairs, I am of the view that theInvestigating Officer failed to take necessary precautions which could be takento eliminate possibility of fabrication of this evidence or to dispel suspicionas to its genuineness. It can be inferred that the official seal of the PoliceStation remained all along with the Investigating Officer and the sealedsamples of the contraband articles also remained in the Police Station for fourdays and there is no explanation that why these samples were not sent earlier. 16.In all fairness the Investigating Officer ought to have obtained signatures of Panch witnesses on the sealed packet of the samples andafter sealing the packets should have entrusted the seal of the Sarpanch or to any other respectable person. In thiscontext, I may profitably place reliance on a decision of the Supreme Court inthe case of Mohmood vs. State of Uttar Pradesh, AIR1976 SC 69. The Division Bench of this Court in Vijay Singh vs. State of M.P., 2004 (4) MPLJ 543 in para 23 has also held that suchtype of procedure should have been adopted by the Investigating Officer. In another decision Mohd . The Division Bench of this Court in Vijay Singh vs. State of M.P., 2004 (4) MPLJ 543 in para 23 has also held that suchtype of procedure should have been adopted by the Investigating Officer. In another decision Mohd . Aman and Another vs. State of Rajas than, AIR, 1997 SC2960, the Supreme Court while dealing with the point of delay, in sending emptycartridge to the ballistic expert while observing that the empty cartridge werein the custody of Police Station and they were sent for ballistic expert reportafter five days, the Apex Court held that there was delay and it raises seriousdoubts and give rise to the possibility of the fabrication. In the present casealso there is delay of four days in sending the samples to the ChemicalAnalyst. 17.At the cost of repetition I may again visualise theevidence of Seizing Officer, who has categorically deposed that he understandsthe distinction between leaves and flowers and even then in the description ofthe substance which was seized, simply seizure of some leaves has beenmentioned. Hence, according to me with certainty it cannot be held that thesubstance which was seized was "ganja". 18.For the reasons stated hereinabove, I am of the view that conviction of theappellant cannot be allowed to remain sustained. Accordingly, his convictionunder Section 8/20 of the Act is hereby set aside. 19.Resultantly, this appeal succeeds and is hereby allowed. The impugned judgmentof conviction and order of sentence passed by the learned Trial Court are herebyset aside and the appellant is acquitted of all the charges. The appellant isin jail. He be set at liberty forthwith if notrequired in any other case. Since I have already set aside the conviction andsentence of the appellant, the order of confiscation of the vehicle is also setaside.