JUDGMENT : This appeal is directed against the judgment and order dated 21/22.12.2009 passed by the Principal District and Sessions (Spl.) Judge, Ballari in Special Case No. 84/2007. By the impugned judgment and order, the appellant (hereinafter referred to as “the accused”) was convicted for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to four years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to pay fine, to undergo simple imprisonment for one year. 2. The case of the prosecution is that, on 05.07.2007 at about 11.00 a.m., P.W.1 U.Sharanappa, Police Inspector, incharge of Chittawadigi Police Station received credible information that a person was sitting near Railway Reservation Counter at Hospet holding ganja in his possession. He recorded the said information in writing and informed the same to his higher officer, namely, Deputy Superintendent of Police (P.W.7), secured the panch witnesses and along with the Police staff proceeded to Hospet Railway Station. The accused was found sitting in front of the Reservation Counter holding a plastic bag in his hands. The accused was surrounded and P.W.1 introduced himself to the accused and ascertained his name and address and introduced the members of the raiding team to him. The accused was knowing only Telugu language and the conversation was translated to him by A.S.I. Sri. V.D. Joshi. The accused was informed that he is at liberty to get himself searched by any Gazatted Officer. The accused opted for search by P.W.1. Accordingly, P.W.1 searched the plastic bag in the presence of P.W.7 and other panch witnesses. The said bag contained ganja powder. It weighed 1½ k.g. The same was seized in the presence of panchas by drawing a panchanama as per Ex.P1. 3. The seized ganja and the accused were taken to the Police Station. P.W.1 filed a report before PSI – P.W.10 and produced the panchanama along with the seized ganja. P.W.10 registered a case against the accused in Crime No. 17/2007 and issued FIR. The accused was arrested and his statement was recorded and was produced before the Special Court and was remanded to the judicial custody. P.W.1 filed a report before PSI – P.W.10 and produced the panchanama along with the seized ganja. P.W.10 registered a case against the accused in Crime No. 17/2007 and issued FIR. The accused was arrested and his statement was recorded and was produced before the Special Court and was remanded to the judicial custody. The seized sample of ganja was sent to FSL for chemical examination and after receipt of FSL report, the charge sheet was laid against the accused alleging the commission of the offence punishable under Section 20(b)(ii) of the NDPS Act. 4. The accused denied all the charges and stood trial. In order to bring home the guilt of the accused, the prosecution examined in all 10 witnesses and produced in evidence 7 documents marked as Exs.P1 to Ex.P7. The seized ganja was exhibited as M.O.1, sample ganja were exhibited as M.O’s 2 to 4 and the plastic bag wherein the said ganja was carried was exhibited as M.O.5. 5. Based on the above evidence, the learned Special Judge was of the opinion that the prosecution has proved its case beyond reasonable doubt and accordingly, convicted the accused for the said offence and sentenced him as above. 6. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the appellant has preferred this appeal. 7. I have heard the learned counsel for the appellant Sri.Ganapathi M. Bhat and the learned Government Pleader Sri.Praveen K. Uppar and have carefully examined the records. 8. Learned counsel appearing for the accused has canvassed the following contention: (i) According to the prosecution, the accused was conversant only in Telugu language. P.W.1, who conducted the raid has unequivocally stated before the Court that assistance of a translator Sri. V.D. Joshi, A.S.I. Town Police Station, Hospet was utilized. But the said translator was not examined before the Court and therefore adverse inference has to be drawn against the prosecution for non-examination of this witness. (ii) The alleged option said to have been given to the accused to get himself searched by a Gazatted Officer, as laid down in Section 41 of the Act has not been proved by the prosecution. (iii) There is striking variation in the substance alleged to have been seized from the possession of the accused. (ii) The alleged option said to have been given to the accused to get himself searched by a Gazatted Officer, as laid down in Section 41 of the Act has not been proved by the prosecution. (iii) There is striking variation in the substance alleged to have been seized from the possession of the accused. The evidence of P.W.1 as well as the evidence of panch witnesses P.W.5 and P.W.6 and the contents of seizure mahazar Ex.P1 indicate that ganja powder was seized from the possession of the accused. But the evidence of P.W.9Scientific Officer indicates that, sealed packet containing ganja sample of light green in colour, dried, leaves, seeds, fruiting and flowering tops along with small ganja stalks were forwarded to FSL, Bengaluru. The report submitted by P.W.9 indicate that the said leaves, seeds, fruiting and flowering tops along with small ganja stalks were subjected by him for chemical analysis and a report was submitted to the Investigating Officer to the effect that the sample found in the above said articles were positive for all the above test and therefore, the sample is cannabis (ganja). This discrepancy is not explained by the prosecution. (iv) Placing reliance on the decision of this Court in the case of K.K. Rejji Vs. State by Murdeshwar Police Station, Karwar reported in 2009 SCC KAR 325, the learned counsel would submit that the case of the prosecution is that the accused was found in possession of 1½ k.g. of ganja. If the evidence of P.W.9 is believed, the said ganja consisted of leaves, seeds, fruiting and flowering tops along with small ganja stalks. (v). As per the definition contained in Section 2(iii)(b), ganja is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. In view of this definition, P.W.1 was required to segregate the flowering or fruiting tops so as to determine the actual weight of the ganja. The jurisdiction of the Court is determined on the basis of the weight of the ganja. Since the actual weight of the ganja has not been determined, the jurisdiction of the Court to try the alleged offence is rendered doubtful. On these grounds, the learned counsel has sought for acquittal of the accused. 9. The jurisdiction of the Court is determined on the basis of the weight of the ganja. Since the actual weight of the ganja has not been determined, the jurisdiction of the Court to try the alleged offence is rendered doubtful. On these grounds, the learned counsel has sought for acquittal of the accused. 9. Defending the impugned judgment, the learned Government Pleader would submit that the prosecution has complied with all the requirements of Sections 41, 42 and Section 50 of NDPS Act. The information received by P.W.1 is duly recorded and the same is communicated to his Higher Officer and only thereafter, P.W.1 raided the accused. The accused was given an option to get himself searched by a Gazatted Officer as required under Section 42 of the NDPS Act. The accused refused to be searched by the Gazatted Officer and hence, P.W.1 conducted the search. The proceedings drawn during the search are duly proved by examining the panch witnesses. The accused was not subjected to any personal search and therefore, the provisions of Section 50 were not applicable to the facts of the case. The prosecution has adhered to all the preconditions and the safeguards provided under the NDPS Act. The seized material was forwarded to the chemical examination and it is proved that the said substance was ganja. The accused did not dispute either the nature of the substance or its weight during trial or during his examination under Section 313 of Cr.P.C. Therefore, the accused is estopped from raising this contention at the appellate stage. He further submitted that the Court below has properly analyzed the evidence and has rendered the impugned judgment, which does not suffer from any error or infirmity calling for interference by this Court. Hence, he seeks for dismissal of the appeal. 10. I have bestowed my careful thought to the rival submissions and have carefully examined the records. 11. Though the learned counsel for the accused has vehemently submitted that the requisite formalities and the safeguards prescribed under Sections 41 and 42 of the NDPS Act are not complied by the prosecution, but on going through the evidence of P.W.1, the PSI who conducted the raid and the evidence of the panch witnesses namely P.W.5 and P.W.6, I find that P.W.1 has adhered to all the mandatory requirements and safeguards provided under the provisions of the NDPS Act. It is proved in evidence that, the information received by P.W.1 has been reduced into writing as evidenced in Ex.P3. The testimony of P.W.1 that the said information was conveyed to his superior officer namely, P.W.7 is confirmed by P.W.7, which has remained uncontraverted. With regard to the option given to the accused to get himself searched by any Gazatted Officer as required under Section 41 of the NDPS Act is concerned, the evidence of P.W.1 in this regard has not been challenged in the cross-examination. Though a contention is urged by the learned counsel for the appellant that accused was unable to understand Kannada and that he was conversant only in Telugu language, yet the evidence of P.W.1, and the testimony of P.W.7 that the conversation was translated through A.S.I. has not at all been challenged in the cross-examination. Except suggesting to P.W.1 that the evidence given by him before the Court is false, the accused has not disputed the statement made by P.W.1 that the conversation was got translated to him by A.S.I. Joshi. Therefore, this contention, in my view cannot be accepted. 12. However, on going through the material on record, I find a serious flaw in the case of the prosecution, which in my opinion vitiates the entire trial and the conviction recorded by the trial Court. As pointed out by the learned counsel for the appellant, the case of the prosecution is that the accused was found holding a plastic bag and the said plastic bag was searched by P.W.1 in the presence of panchas namely P.W.5 and P.W.6. In this regard, P.W.1 has stated that on search of the bag, he found ganja weighing about 1½ k.g. and portion of it was collected in three boxes as samples and the remaining ganja was seized under the panchanama Ex.P1. He has not specified as to whether the said ganja was in the form of powder or in the form of ganja stalks, fruiting and flowering tops or leaves. P.W.5 and P.W.6 panch witnesses have also not stated anything about the form of the substance at the time of its seizure. Except sating that about 1½ 2 k.g. of ganja was seized from the possession of the accused under the mahazar Ex.P1, both these witnesses have not stated as to whether the said ganja was in the form of leaves, seeds, fruiting and flowering tops. 13. Except sating that about 1½ 2 k.g. of ganja was seized from the possession of the accused under the mahazar Ex.P1, both these witnesses have not stated as to whether the said ganja was in the form of leaves, seeds, fruiting and flowering tops. 13. In this context, if the contents of Ex.P1 is perused, it is seen that in this seizure mahazer Ex.P1, the procedure followed by P.W.1 in effecting the seizure is elaborately narrated but with regard to the substance seized from the possession of the accused except stating that 1½ k.g. of ganja was seized and the portion thereof was collected as sample, no other details are mentioned therein. From the contents of Ex.P1, it could be gathered that readymade ganja was seized from the possession of the accused. In the property form, the seized property is described as under : xxxxxxxxxx 14. From this material, it could be gathered that the substance seized from the possession of the accused was readymade ganja. There is absolutely nothing in the evidence of P.W.1, P.W.5 and P.W.6 or in the documents referred above, namely, Ex.P1 and the property form indicating that the said substance was in the form of leaves, seeds, fruiting and flowering tops and stalks. But the articles forwarded to the chemical examination are totally different from the one seized from the possession of the accused. In this regard, P.W.9, Scientific Officer attached to Forensic Science Laboratory, Bengaluru has unequivocally stated before the Court that on 21.07.2007 one P.R. Jayaram, Assistant Director of Chemistry Division handed over the case file to him for chemical examination. Each article were sealed with seal impression of SHO in red wax. On 14.08.2009, he opened the above packets with the assistance of Scientific Assistant Kumari Pramila. The further evidence of P.W.9 reads as follows : “Article No.1 containing cloth packet, inside one buff colour paper packet containing Ganja sample of light green in coloured, dried condition, leaves, seeds forting and flouring on tops along with small ganja sticks. Characteristic sell of Cannabis (Ganja). The Article No.2 is also most similar that of the Article No.1. The Article No.3 one white cloth packet inside one Kannada News Paper packet and remaining sample is same that of the article No.1 and 2.” 15. Characteristic sell of Cannabis (Ganja). The Article No.2 is also most similar that of the Article No.1. The Article No.3 one white cloth packet inside one Kannada News Paper packet and remaining sample is same that of the article No.1 and 2.” 15. The evidence of P.W.9 indicates that he subjected the above articles for chemical examination namely Stereo Miscroscopic Examination, Duquenois reagent test, thin layer chromatographic test and submitted his report as per Ex.P5 to the effect that the samples found in the above articles responded positive for all the tests and therefore, the sample is cannabis (ganja). 16. From the above evidence, it is clear that the substance examined by P.W.9 were leaves, seeds, fruiting and flowering tops along with ganja stalks. But the articles seized from the possession of the accused was readymade ganja. This aspect of the case of the prosecution is not considered by the Trial Court. The Trial Court failed to note that the certificate issued by P.W.9 relates to a substance which is different from the substance seized from the possession of the accused, as a result the substratum of the case of prosecution is rendered doubtful and the benefit thereof should go to the accused. The prosecution has also failed to prove that the substance seized from the accused is “ganja” within the meaning of Section 2(iii)(b) of the Act. The weight of the substance is also not determined. These defects in my opinion go to the very root of the matter vitiating the entire trial and the consequent conviction recorded by the Court below. 17. In view of the above, the impugned judgment cannot be sustained and the same is liable to be set aside. Accordingly, it is hereby set aside. As a result, the accused is liable to be acquitted. Hence, the following : ORDER Criminal Appeal is allowed. The impugned judgment dated 21/22.12.2009 passed by the Principal District and Sessions (Special) Judge, Ballari in Special Case No. 84/2007 is set aside. The accused is acquitted of the charge punishable under Section 20(b)(i) of NDPS Act. As the accused is on bail, the bail bond of the accused stands cancelled and the sureties stands discharged. The fine amount, if any, paid or deposited by the appellant – accused, shall be refunded to him on proper identification.