JUDGMENT Per: SHYAM KISHORE SHARMA, J.-- The above named appellant has preferred the instant appeal against the judgment of conviction and order of sentence dated 5th June, 2010 passed in N.D.P.S. Case No. 3 of 2004 / Sherghati P.S. Case No. 123 of 1999 by the learned Ist Additional Sessions Judge, Gaya whereby the appellant has been found guilty and was convicted for the offence punishable under sections 17 (c), 15 (c) and 20 (B) of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the Act). Accordingly, he was sentenced to undergo rigorous imprisonment for a period of 15 years for the offence committed under section 17 (c) and 15 (c) of the Act each and also to pay fine of Rs. 1,50,000/- in each sections. In default of payment of fine he was further sentenced to undergo one year simple imprisonment in each sections. The appellant was further sentenced to under go rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- for the offence under section 20 (B) of the Act and in default of payment of fine he was sentenced to undergo rigorous imprisonment for three months. It was ordered that all the sentences shall run concurrently. 2. On 13.8.1999 at 1.00 PM the informant Uday Pratap Singh the informant (PW 5) while being posted as Inspector of Police, Sherghati Circle, on the basis of confidential information raided the house of the appellant and seized two bags containing Doda (powder of upper part of Afeem Poppy). One bag containing 41 Kg whereas the second bag was of 38 Kg. Further Doda powder was kept in five bags inscribed with “K.P.Y” were seized. Two bags contained 40 Kg each whereas other bags contained 41, 36 and 39 Kg. Besides that 500 grams of Ganja kept in polythene also was seized. The accused was caught and he disclosed that he was arranging the contraband articles from a Marwari at Kolkata and after branding it, he was distributing it to the different gumties owners on GT Road. Seizure list was prepared in presence of two independent witnesses (PWs 1 and 2 Anil Kumar and Rajeev Kumar respectively). Signature of Anil Kumar has been exhibited as 1 whereas a signature of Rajeev Ranjan has been exhibited as Ext. 1/1. Signature of Krishna Yadav appellant on seizure list has been marked as Ext. 1/2. Seizure list was prepared in presence of two independent witnesses (PWs 1 and 2 Anil Kumar and Rajeev Kumar respectively). Signature of Anil Kumar has been exhibited as 1 whereas a signature of Rajeev Ranjan has been exhibited as Ext. 1/1. Signature of Krishna Yadav appellant on seizure list has been marked as Ext. 1/2. Seizure list has been exhibited as Ext. 2. Written report (Ext. 3) with endorsement (Ext/3/1) resulted into formal FIR (Ext. 4) of Sherghati P.S. Case No. 123 of 1999 dated 13.8.1999 under section 15 (2) of the Act which contains the signature of Uday Pratap Singh (PW 5) as Ext. 4/1. Seized Ganja was sent for chemical examination and report (Ext. 5) was received. After a long lapse Doda was also sent for chemical examination and report (Ext. 6) from FSL was exhibited under section 293 of the Cr.P.C. Different bags of Ganja and Doda as well as powder were marked as material Exts. (i) (ii) (iii). After completion of all paraphernalia chargesheet was submitted and trial proceeded. 3. The accused has been charged under sections 17, 15 and 20 (B) of the Act for being in possession of 275 Kg. of Opium in 7 sacks having “KPY” inscription and 500 Grams of Ganja in polythene. The accused pleaded his innocence and so the trial proceeded. 4. The defence was of false implication and also that Doda is not an opium substance and so his prosecution under sections 15 and 17 was completely unjustified. The further defence was that the accused has been implicated because he had a minor altercation with Police on account of sharing of a seat in a bus. 5. In order to prove its case, the prosecution has examined six witnesses. They are: Anil Kumar (PW 1), Rajiv Ranjan (PW 2), Raghvendra Sharma (PW 3), Hawaldar Dipti Lal Ram (PW 4), Uday Pratap Singh (PW 5) and Vijai Kumar Beek (PW 6). 6. PWs 1 and 2 are the only independent witnesses whereas rest of the witnesses are the police personnel. PWs 1 and 2 have stated that no seizure was made in their presence and they have not supported the prosecution case and they were declared hostile. The prosecution has cross-examined them but they have admitted that they have signed upon the paper. PWs 1 and 2 have stated that no seizure was made in their presence and they have not supported the prosecution case and they were declared hostile. The prosecution has cross-examined them but they have admitted that they have signed upon the paper. These two witnesses are well known to the accused from before and their becoming hostile is not uncommon. However, their signatures on the seizure list go to show that on the date and time of occurrence there was seizure because none of these witnesses have denied about the signatures on the seizure list. Therefore, there is seizure on the date and time of occurrence regarding a polythene containing 500 grams Ganja and some Doda have been proved. 7. PWs 3 and 4 were in the team which raided the premises of the accused and made seizure. They have supported that on the date and time of occurrence there was seizure of Doda and ½ kilogram of Ganja. 8. PW 5 is the main witness of the case. While he was being posted as Inspector of Police at Sherghati, on 13.8.1999 he received confidential information at noon of that date that Krishna Prasad Yadav of village Kusha P.S.- Dobhi was storing Opium powder and Ganja for the purpose of selling it. The information was passed to the Sub-divisional Police Officer, Sherghati. A raiding team was constituted. At 12.30 noon on 13.8.1999, the raiding team took its company of Anil Kumar (PW 1) and Rajeev Ranjan (PW 2) and after giving their personal search, the raiding party went to the house of the accused Krishna Prasad Yadav and found that Doda were kept in bags and ½ kg. Ganja was kept in a polythene bag. Krishna Prasad Yadav told that he was getting opium poppy from a Marwari at Kolkata. After bringing it, he was selling it to petty venders who were selling the articles in Gumties. After the seizure list was prepared, the accused was caught and investigation was started. The seized articles were kept at Police Station Sherghati. It was imperative for PW 5 to know as to who were the other occupants of the house. The informant has described the biography of the house saying that house contains several rooms but he could not detail as to what was kept in other rooms and who were the occupants therein. It was imperative for PW 5 to know as to who were the other occupants of the house. The informant has described the biography of the house saying that house contains several rooms but he could not detail as to what was kept in other rooms and who were the occupants therein. The important link which has come through the accused was that he was the subsequent purchaser of contraband articles from a person of Kolkata. But the informant has confessed that he made no effort to know the root of the person at Kolkata with whom the present accused was dealing with. The informant has accepted his blunder when he has stated that he did not seal the material exhibit. 9. The Investigating Officer (PW 6) while being examined has described the place of occurrence which was a joint house. He has taken statement of the witnesses. He has stated in paragraph 7 of his evidence that he has sent Ganja to Forensic Science Laboratory for chemical examination but no where it came that Doda which has been described in the case as Opium straw was ever sent for chemical examination. The entire trial has proceeded, it has come in evidence that the Doda was not sealed. Another fact which has come in evidence that on 7.11.1999 all the bags were again opened and stitched. There is nothing to show that any effort was made to seal the Doda which has been described as Opium straw or opium dust. The investigating Officer has stated that he made no effort to ascertain the whereabout of the person of Kolkata with whom the accused of the case was having trade relationship of contraband articles. The Investigating officer further confessed that he could not ascertain as to who were the other occupants of the house from which the seizure was made. He has stated that there was no sampling of Doda. In sum and substance it is apparent that the only Ganja was sent for chemical examination and such report is on the record and it has been exhibited as (Ext. 5). Exhibit 5 shows that on 8.2.1999 the article was sent and the examination report was received on 5.11.1999 and it was found that the sent article was Ganja. In sum and substance it is apparent that the only Ganja was sent for chemical examination and such report is on the record and it has been exhibited as (Ext. 5). Exhibit 5 shows that on 8.2.1999 the article was sent and the examination report was received on 5.11.1999 and it was found that the sent article was Ganja. After preservation of evidence the plastic bags of Doda were also sent and report has been received that these were Opium powder and this report was exhibited as Ext.-6 with objection. 10. Net result of the evidence is that the sent article which has been claimed to be Doda was not even sealed and it was sent after several years to Forensic Science Laboratory. It was sent by letter no. 135 dated 13.2.2004 and the report was received. The occurrence is of 1999. It has come in evidence that the article was not even sealed and at that time there was no sampling. Therefore, it would be harsh to presume that whether the articles from the plastic bags were sent for chemical examination or not. The best report would be only that when the seized articles are sent without delay. If normal delay is not caused in sending the sample of seized articles and those seized articles were not even sealed, then it cannot be said that actual report would have been received. The Act contains stringent punishment and so follow of the requirement of the law and procedure is mandatory. In the present case, the investigating officer has not at all performed his duty according to law and he has left the entire case in mess. The report as contained in Ext. 6 cannot be accepted to be the genuine report as the prosecution has failed to prove that the articles seized on 13.8.1999 were sent to Forensic Science Laboratory for chemical examination. In that view of the matter the charge under section 15 (c) and 17 (c) of the Act cannot be said to have been established. In the result, we hold that the prosecution has failed to prove the charges under section 15 (c) and 17 (c) of the Act against the appellant beyond the shadow of all reasonable doubts. 11. In that view of the matter the charge under section 15 (c) and 17 (c) of the Act cannot be said to have been established. In the result, we hold that the prosecution has failed to prove the charges under section 15 (c) and 17 (c) of the Act against the appellant beyond the shadow of all reasonable doubts. 11. However, it has come in evidence that 500 gram Ganja was seized and it was sent for chemical examination to Forensic Science Laboratory without much delay and the report was received that the seized article was Ganja. Meaning thereby that the accused/appellant was found in possession of 500 grams of Ganja on the date and time of occurrence. In that view of the matter, it can be said that the accused/appellant was in possession of small quantity of Ganja on the date and time of occurrence and the prosecution has been able to prove it beyond the shadow of all reasonable doubts. 12. Learned counsel for the appellant has submitted that even sampling of Ganja was not proper but we are of the view that a portion of the seized Ganja was sent and it was found by the experts that the sent article was Ganja. In that view of the matter, we are of the view that the prosecution has been able to prove that the accused/appellant was found in possession of small quantity of Ganja on the date and time of occurrence. 13. In the result, the conviction of appellant accused under section 20 (B) of the Act for possessing small quantity of Ganja is maintained. The appellant is in custody since long. So the sentence requires modification. The maximum sentence which an accused can have for possessing small quantity of ganja is only of six months and the appellant has exceeded its custody. Accordingly, the period already undergone by the appellant in custody shall be deemed to be sufficient for the ends of justice. The appellant is reported to be in custody, he is directed to be released forthwith if not wanted in any other case. 14. This appeal is dismissed with the modification in the sentence as aforesaid. Appeal dismissed.