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2014 DIGILAW 1041 (PAT)

Ashok Roy @ Ashok Kumar Rai v. State of Bihar

2014-09-26

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Heard the learned counsel for the appellants and the State. 2. The appellants have been convicted under Sections 20(b) and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as, ‘the Act’) and sentenced to undergo rigorous imprisonment for ten years with a fine of rupees one lakh for offence under Sections 20(b) and 22 of the Act for each count and in default of payment of fine to undergo, further, rigorous imprisonment for two years and it has been ordered that the sentences will run concurrently. 3. The prosecution case, as alleged by the informant, Sub Inspector of Police, Sadhna Singh, Officer-in-Charge, of Bidupur Police Station that on 23.06.2008 she proceeded for patrolling along with the police party in jeep at about 01.00 p.m. from the Police Station and reached at Afrol Chowk at 04.00 p.m., then, got information from spy that a white Armada Jeep, bearing registration no. GJ-1HH- 0032 is coming, which is filled with ganja. For verifying the information, she started checking of the vehicle at Afrol Chowk, N.H. 103, Bidupur-Jandaha main road. At about 05.15 p.m. a while jeep was coming from west was given the sign to stop and on seeing the police, the driver of the said jeep turned the vehicle back and tried to flee away, but, the jeep was apprehended and surrounded which appeared the same jeep, as mentioned above, and besides driver one more person was seen seated on the front seat and they disclosed their names as Ashok Rai @ Ashok Kumar Rai and Ranjeet Das @ Ranjeet Kumar Das and from the said jeep a stringent bundle come out and three plastic packets on the middle seat were seen, then, in presence of the witnesses, Santosh Kumar and Chowkidar, Birchand Paswan, the gate of the jeep was opened and, then, on the middle seat three packets wrapped in a blue plastic was found. Three gunny bags found in dickey. The search was made in presence of two witnesses, one packet was opened and on enquiry from both the accused persons they disclosed that it is ganja. In the three gunny packets, each contained three packets of ganja weighing about 8 Kg each. Three gunny bags found in dickey. The search was made in presence of two witnesses, one packet was opened and on enquiry from both the accused persons they disclosed that it is ganja. In the three gunny packets, each contained three packets of ganja weighing about 8 Kg each. Three blue plastic packets, each containing about 8 Kg weight were seized along with the jeep, seizure list prepared and the articles seized and two persons were on jeep arrested and first information report lodged on the written report. The seizure list of the seized articles and the investigation proceeded. 4. During the investigation, the sample was sent for chemical examination to Forensic Science Laboratory and after receiving the report, charge sheet submitted cognizance taken thereof the charge was framed. 5. During the trial fourteen witnesses were examined. P.W. 1 is Jeevan Rai, P.W. 2 is Naresh Rai, P.W. 3 is Basu Sakunath Rai, P.W. 4 is Jeevach Rai, P.W. 5 is Santosh Kumar Gupta, P.W. 6 is Gorakh Nath Singh, the investigating officer, P.W. 7 is Resham Kumar Yadav, P.W. 8 is Sadhs Singh, the informant, P.W. 9 is Mahesh Paswan, Chowkidar of Choura Desri Thana, P.W. 10 is Birchand Paswan, Chowkidar of Desri Thana, seizure list witnesses, P.W. 11 is Vijay Kumar Singh, Sub Inspector of Police, Probation, P.W. 12 is the Assistant Director, Forensic Science Laboratory, P.W. 13 is Ram Bachan Singh, the then Havildar, Desri Police Station and member of the raiding party and P.W. 14 is Arun Kumar, the driver. 6. the documentary evidence adduced are Exhibits 1, the signature of Mahesh Kumar Gupta, seizure list witness, Exhibit 2 is the written report, Exhibit 3 is the seizure list, Exhibit 4 is series of confession of the accused, Ashok Kumar, Exhibit 5 is the formal first information report, Exhibit 6 is by one in the signature of Suresh Paswan on Forensic Science Laboratory report, Exhibit 6/1 is the signature of Dr. Shyam Bihari Choudhary of Forensic Science Laboratory and Exhibit 7 is the Forensic Science Laboratory report. 7. The learned counsel for the appellant, however, has challenged the order of conviction and sentence. The trial Court after considering the oral and documental evidences convicted and sentenced the appellant, as mentioned above, under Sections 20(b)(2)(c) and 22 of the Act. Shyam Bihari Choudhary of Forensic Science Laboratory and Exhibit 7 is the Forensic Science Laboratory report. 7. The learned counsel for the appellant, however, has challenged the order of conviction and sentence. The trial Court after considering the oral and documental evidences convicted and sentenced the appellant, as mentioned above, under Sections 20(b)(2)(c) and 22 of the Act. However, it is submitted that since the recovery alleged to be ganja, hence, the conviction under Section 22 of the Act is not applicable. It has, further, been contended that the provision of Section 42 of the Act has not been complied neither the information has been recorded by the Officer-in-Charge under Section 42(1) of the Act before proceeding for search nor the superior officer has been informed under Section 42(2) of the Act and so has violated the mandatory provision under the Act and so the conviction of the appellants can not be sustained. It has, further, been contended that from the evidence, it is apparent that articles which were seized were never sealed nor were not kept in sealed cover in the malkhana of Police Station. It is submitted that when the articles were produced in Court, they were not properly sealed nor the seal or signature of the Officer-in-Charge of the Police Station on the article was placed nor it has been mentioned when it was kept nor malkhana register proved nor the safeguard, provided under Sections 52, 52A, 53, 55 and 57 of the Act have been complied. 8. It has, further, been contended that the prosecution has not established or deposed that from where the samples were taken and though it is stated that twelve packets of ganja in three gunny plastic bags weighing 8 Kg each found in nine in three gunny bags, and three packets in blue plastic so in all twelve packets each containing 8 Kg alleged to have been seized, but, there is no evidence that the sample was taken from one packet or each of the packets or the sample was sealed or sent in sealed cover and, hence, that the prosecution ahs been able to establish charge beyond reasonable doubt so the prosecution has not been able to prove that each of the seized articles in the packets were ganja. 9. 9. However, from perusal of the evidence, it is apparent that P.W. 1, who in his cross examination, stated that nothing recovered before him. P.Ws. 2, 3 and 4 have stated that they do not know anything about the offence. P.W. 5 though is the seizure list witness has proved the signature on the seizure list, who has stated that nothing recovered from the possession of the accused persons before him. P.W. 10 is another seizure list witness though he has proved signature on the seizure list and he happens to be the Chowkidar, Desri Police Station, and has identified the accused persons, but, has stated that he was not at the place of occurrence at the time of search and seizure and he signed on the seizure list at the instance of the Officer-in-Charge, Sadhna Singh. However, P.W. 8, the informant, supported the prosecution case that the said jeep was apprehended and search of the vehicle made and twelve packets of ganja were seized and each contained 8 Kg ganja and has proved his signature on the fardbeyan, marked as Exhibit 2, prepared the seizure list, Exhibit 3, recorded the statement of the accused persons, marked as Exhibit 4 and has proved Exhibit 5. Exhibits 7, 9, 13 and 14 supported the prosecution case that they caught hold of the jeep and from the jeep ganja was recovered. 10. However, in the evidence of P.W. 8, she has not stated in her examination-in-chief that what was done with the ganja, seized. In her cross examination, she has stated that twelve packets of ganja were seized and subsequently says that she does not remember whether all the twelve packets were brought at the Police Station and has stated that the sample was taken from seized ganja and may have been sent by the investigating officer and the investigating officer may have taken the sample and does not remember whether she has mentioned about the sealing of the sample in the fardbeyan or not. P.W. 6 is the investigating officer. At the time of his evidence, he was Officer-in-Charge of Darauli Police Station and at the time of occurrence he was the In-Charge of Sahdeo Out Post. He has stated that he was given the charge of investigation by the earlier investigating officer. P.W. 6 is the investigating officer. At the time of his evidence, he was Officer-in-Charge of Darauli Police Station and at the time of occurrence he was the In-Charge of Sahdeo Out Post. He has stated that he was given the charge of investigation by the earlier investigating officer. He has, further, stated that he recorded the statement of the witnesses at the place of occurrence and after investigation submitted the charge sheet against Ashok Roy and Ranjeet Das. There is no whisper in his examination-in-chief that what he did with the seized articles, though in his cross examination he has stated that he took out sample from seized ganja and kept the same in the Police Station and he did not give any information to the Gazetted Officer and has stated that he got the ganja at Desri Police Station on 23.08.2008 wrapped in plastic packets. 11. However, from the evidence of P.W. 8, the informant, and from the evidence of P.W. 12, the investigating officer, it is apparent that there is no evidence whether ganja alleged to have been recovered was sealed at the place of occurrence. There is no evidence where they were kept nor the investigating officer nor the Officer-in-Charge of the concerned Police Station have come to depose where the seized articles were kept not it is mentioned whether the sample of ganja were taken there is no mention where the article kept there is no mention how the ganja was taken for sample whether ganja taken from each packets or from one packet nor it has been mentioned whether sample taken was sent in sealed cover nor the amount of sample sent for chemical examination has been mentioned. 12. P.W. 11 is the probationer Sub Inspector of Police and has brought 12 packets of ganja for production in Court and has stated that in each packets there is mention of Desri P.S. Case No. 97 of 2008 and has presented the same in Court, which has been marked as material Exhibits 1 to 1/11 and in cross examination has stated that the Officer-in-Charge, Desri Police Station, disclosed him that these ganja were received in this case. There is no signature of any police officer on the sealed packet nor any seal of the Officer-in-Charge of the Police Station on it and has produced the said material, Exhibits, to the Court. There is no signature of any police officer on the sealed packet nor any seal of the Officer-in-Charge of the Police Station on it and has produced the said material, Exhibits, to the Court. P.W. 12 is the Assistant Director, Forensic Science Laboratory, who has stated that he got the seized article for chemical examination and it was found that the same was ganja and he proved his signature that the sample was received on 08.07.2008, which was handed over on 30.08.2008 by Special Messenger and Exhibit 7 mentions that by Memo No. 1727, dated 30.06.2008, received by Special Messenger, Shyam Narain Singh, in connection with Desri P.S. Case No. 97 of 2008, dated 23.06.2008, which contains one card board box set, containing sample of ganja. In cross examination he stated that he has not mentioned in the report that the packet contain how much sample of ganja was there and has stated that it was not informed to him that in which packet the seized article was sent. There is no mention that the ganja received was received in a sealed cover nor it is mentioned that the same received with the seal of Officer-in-Charge of the Police Station. 13. Hence, from the report, it is apparent that the prosecution has not been able to prove that any prior information received regarding ganja was ever recorded or recorded by the Officer-in-Charge of the Police Station nor there is mention that the same was after recovery was intimated to any superior police officer. There is no mention in the entire evidence that the article, seized, by the Officer-in-Charge was ever sealed by the informant or by the investigating officer. It has not been mentioned that whether the articles were kept in malkhana or those articles were mentioned in the malkhana register. There is no mention that any article, seized, were kept under the seal or signature of the Officer-in-Charge of the Police Station and there is no mention whether the investigating officer while sending the sample to the Forensic Science Laboratory for chemical examination whether the sample was taken from each of the seized packets or whether the sample was sent in seal of the Officer-in-Charge of the Police Station. There is no mention about any compliance of Sections 52, 53, 54 and 55 of the Act. 14. There is no mention about any compliance of Sections 52, 53, 54 and 55 of the Act. 14. However, Section 42 of the Act provides that when any information is received by empowered officer with reason to believe for offence punishable under the Act, he is required to be taken down in writing before proceeding to inter into a search of any building, conveyance or place. Section 42(2) of the Act provides that officer who take down an information in writing on information under sub section (1) of Section 42 of the Act shall send a copy of prior information to his immediate superior officer and it has been contended that the compliance has not been made of Section 42 of the Act, which is mandatory in nature and reliance has been placed upon a decision reported in 2013 (3) P.L.J.R., 87 (Birendra Kumar Sharma Vs. Union of India) and A.I.R. 2009 S.C., 1378 (Hamidbhai Azambhai Malik Vs. State of Gujrat). 15. However, it is well settled that the provision contained in Section 42 of the Act is mandatory. It is submitted that in Balbir Singh’s case as well as in Baldev Singh’s case, reported in 1974 (3) S.C.C., 299 (Oyami Ayatu Vs. The State of Madhya Pradesh) and 1999(6) S.C.C., 172 (State of Punjab Vs. Baldev Singh). 16. In decision reported in 2013 (3) P.L.J.R., 87 (supra) it has been held that provision of Section 42 of the Act is mandatory taking into consideration the fact that the controversy in decision reported in 2000(2) S.C.C., 513 (Abdul Rashid Mansuri Vs. State of Gujrat) where it is held that Section 42 of the Act is mandatory and the decision reported in 2001(6) SCC, 692 (Sajan Abrahum Vs. State of Kerala) three Judges’ Bench held is not mandatory is not reconsidered, but, decided in Constitution Bench Karnail Singh holding it mandatory. 17. However, taking into consideration the fact of both the cases as in Abdul Rashid Mansuri and Sajan Abrahum the Supreme Court in Karnail Singh’s case reported in 2009(4) P.L.J.R., S.C., 135 observed as that both do not really lay down different proposition of law. It is proper to quote paragraph 11 of 2009(4) P.L.J.R., S.C., 128 (supra)— “A careful examination of the facts in Abdul Rashid and Sajan Abraham shows that the decisions revolved on the facts and do not really lay down different propositions of law. It is proper to quote paragraph 11 of 2009(4) P.L.J.R., S.C., 128 (supra)— “A careful examination of the facts in Abdul Rashid and Sajan Abraham shows that the decisions revolved on the facts and do not really lay down different propositions of law. In Abdul Rashid, there was total non-compliance with the provision of Section 42. The police officer neither took down the information as required under Section 42(1) nor informed his immediate official superior, as required by Section 42(2). It is in that context this Court expressed the view that it was imperative that the police officer should take down the information and forthwith send a copy thereof to his immediate superior officer and the action of the police officer on the basis of the unrecorded information would become suspect though the trial may not be vitiated on Sajan Abraham, the facts were different. In that case, it was very difficult, if knot impossible for the Sub-Inspector of police to record in writing the information given by P.W. 3 and send a copy thereof forthwith to his official superior, as the information was given to him when he was on patrol duty while hw as moving in a jeep and unless he acted on the information immediately, the accused would have escaped. The Sub-Inspector of Police, therefore, acted, without recording the information into writing, but however, sent a copy of the FIR alongwith other records regarding arrest of the accused immediately to his superior officer. It is in these circumstances that this Court held that the omission to record in writing the information received was not a violation of Section 42. 18. Hence, the proposition that if the police received an information while in patrolling and get information when it is difficult to record and send copy forthwith else the accused would escape was not a violation of Section 42 of the Act. Moreover, Section 43 of the Act does not contain such provision or such compliance while acting under Section 43 of the Act. However, here, the fact remains that the police got information while the police officer was in patrolling and the article seized, in transit, which the accused persons were taking in jeep, hence, the case covered under Section 43 of the Act, which does not require compliance of Section 42 of the Act. 19. However, here, the fact remains that the police got information while the police officer was in patrolling and the article seized, in transit, which the accused persons were taking in jeep, hence, the case covered under Section 43 of the Act, which does not require compliance of Section 42 of the Act. 19. However, Section 43 of the Act provides that if an officer empowered under Section 42 of the Act, seize in public place or in transit of any narcotics, then, there is no requirement for compliance of Section 42 of the Act. However, the public place has been mentioned in explanation to include any public conveyance, hotel, shop or other place entitled for house or assessable to the public. However, it is proper to quote paragraphs 9 and 10 of decision reported in 1999(6) S.C.C., 172 (supra) :— “9 : Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief” “10 : The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” 20. Further, it is proper to refer paragraph 11 of the decision reported in A.I.R. 2009 S.C., 1387 (supra)— “11 ……… Therefore, it is settled proposition of law when such information or intimation or knowledge comes to the notice of the Investigating Officer in course of regular patrolling or an investigation of some other offence, it is not necessary to follow in all cases the conditions incorporated in Section 42.” It is further required to refer paragraph 14 of decision reported in A.I.R. 2003 S.C., 4311 (M. Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence) :– “…………… it would be useful to notice Section 43, which relates to the power of seizure and arrest in public place any officer of any of the department mentioned in Section 42 is empowered to seize contraband etc. and search a person in any public place or any transit on existence of particular ingredient stated in Section 43 it can well be seen that Sections 42 and 43 do not require an officer to be a gazetted officer” and decision reported in 2004 S.C.C., 2491 (State of Haryana vrs. and search a person in any public place or any transit on existence of particular ingredient stated in Section 43 it can well be seen that Sections 42 and 43 do not require an officer to be a gazetted officer” and decision reported in 2004 S.C.C., 2491 (State of Haryana vrs. Jarnail Singh) paragraphs 8, 9 and 10 and decision reported in 1999(6) S.C.C. 172 (supra) where it has been held that search and seizure from a public carrier at public place, the provision of Section 42 of the Act is not applicable and it comes under the ambit to Section 43 of the Act, hence, compliance of Section 42 of the Act is not required. The decision reported in 2008(2) S.C.C., 370 (Directorate of Revenue & Another Vs. Mohammed Nisar Holia), with regard to search and seizure in hotel, in paragraphs 13 and 14 of the judgment it has been observed as follows :— “13 : Requirements of Section 42 was read into Section 43 of the NDPS Act. A somewhat different view, however, was taken subsequently. Decisions were rendered opining that in conducting search and seizure in public place or a moving vehicle, provisions appended to sub-section (1) of Section 42 would not be attracted. Decisions were also rendered that in such a case even sub-section (2) of Section 42 need not be complied with.” “14 : Section 43, on plain reading of the Act, may not attract the rigorous of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with………” 21. However, a submission has also been made by the learned counsel for the appellants that in the explanation of Section 43 of the Act, the public place has been defined as public conveyance and there is nothing to indicate that vehicle seized in public or private vehicle to bring it under the definition of public place. 22. However, a submission has also been made by the learned counsel for the appellants that in the explanation of Section 43 of the Act, the public place has been defined as public conveyance and there is nothing to indicate that vehicle seized in public or private vehicle to bring it under the definition of public place. 22. However, taking into consideration the various decisions, reported and the facts of case that the investigating officer get information while she was in patrolling duty at Afrol Chowk, it was difficult to record the same before proceeding for the search or checking the vehicle, hence, the non-compliance of Section 42(1) of the Act is not fatal. More over, she got information while in patrolling and the jeep which was apprehended on road, a public place and was in transit, i.e., in moving position when it was apprehended and the recovery was from public place, the road, hence, it can well be inferred that action taken was not under Section 42 of the Act, but, under Section 43 of the Act and so the requirement of Section 43 of the Act is not required to be completed. 23. Taking into consideration the fact that the jeep was apprehended, article was seized and seizure list prepared. However, from the evidence of the witnesses, it is apparent neither the informant nor the investigating officer in their evidences, the article seized was sealed though it is mentioned that it was kept at the Police Station, but, there is no mention that where it was kept and the investigating officer also has not stated that how he took out the sample from the seized article. Section 52 of the Act provides that whether the narcotic drugs and psychotropic substances having been seized and forwarded to the Officer-in-Charge of the Police Station, the answer referred to in sub-section (1) of Section 53 of the Act shall prepare an inventory of such narcotic drugs and psychotropic substances containing such details relating to their description, quality, quantity made by packing marks, numbers or such other identifying particles of the narcotic drugs and psychotropic substances or the packing in which they are packed and make an application to the Magistrate for the purpose certifying the correctness of inventory taking in presence of such Magistrate, photographs of such drugs allowing to draw respectively samples of such drugs or substance in presence of such Magistrate and certifying correctness of any list of sample so drawn and when an application is made before the Magistrate, he shall soon allow the application. Section 55 of the Act provides that Officer-in-Charge of the Police Station shall take charge of seized articles and keep in safe custody upon the order of the Magistrate or article seized shall allow an officer of the Police Station to affix his seal to such article or to take sample and sample so taken shall also be sealed with a seal of the Officer-in-Charge of the Police Station. Section 57 of the Act provides that when a person makes an arrest or seal, the seized articles under this Act he shall within 48 hours, next, after the arrest or seal shall make a full report to his immediate official superior. However, there is no compliance that the material seized was kept under a seal, there is no material to show that the sample was taken after taking permission of the Magistrate and there is no evidence that the sample was taken from each of the packets. It is true that the provision of Sections 52, 55 and 56 of the Act are not mandatory in nature, but, it has the effect on the appreciation of the evidence. However, going into the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, it is apparent that the Act, itself, appears to be reckoning which led to harsh punishment and so the safeguards have been provided between the needs of enforcement of law on one hand and safeguards the right of citizen on other. However, going into the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, it is apparent that the Act, itself, appears to be reckoning which led to harsh punishment and so the safeguards have been provided between the needs of enforcement of law on one hand and safeguards the right of citizen on other. Even recovery of the alleged article having been established, the article seized was not kept in seal nor the provision of Sections 42, 55 and 57 of the Act having been complied, there is no specific evidence, as apparent from the evidences of the investigating officer and the informant that where they kept the articles and the articles produced were neither sealed under the seal and signature of the Officer-in-Charge of the Police Station nor there is evidence by the investigating officer that he took sample from each of the packets in compliance of Sections 52 and 57 of the Act before a Magistrate nor the malkhana register has been produced to show that the materials was kept in malkhana of the Police Station and the person who brought the materials and P.W. 6 has stated that that he took the sample from the seized ganja and kept the same in Police Station, however, there is no mention that while taking the ganja, the seal was broke open whether the ganja was kept in a seal in Police Station’s malkhana nor P.W. 8, the informant, has stated where she has kept the ganja. There is no mention that whether the ganja was sent in sealed packet or not. The report also does not mention whether the packet, received, was sealed or not rather it has been mentioned that one card board box, which contains sample of ganja. There is no mention whether the sample sent was sealed or not or whether it bears the signature of the Officer-in-Charge of the Police Station. P.W. 12 ahs also stated in his evidence that there is no mention about the amount of ganja, received. 24. Having regard to the facts and circumstances of the case that there is no evidence that the material, seized was ever sealed or it was brought to the magistrate in sealed condition or in his presence, sample was torn, sealed. P.W. 12 ahs also stated in his evidence that there is no mention about the amount of ganja, received. 24. Having regard to the facts and circumstances of the case that there is no evidence that the material, seized was ever sealed or it was brought to the magistrate in sealed condition or in his presence, sample was torn, sealed. There is no certification of the article produced before the Magistrate and, hence, the safeguard provided has not been complied with casts a serious doubt on prosecution case. 25. Hence, having regard to the facts and circumstances of the case, I find that the prosecution has not been able to establish the charges beyond reasonable doubts that the material, seized, was ganja, hence, the order of conviction and sentenced recorded by the lower Court is set aside the appeal is allowed. ?