J.K. Mohanty, J.
1. Petitioner was convicted under Section 14 of the Dangerous Drugs Act, 1930, (hereinafter called the 'Act') and sentenced to undergo R. I. for three months by the Sub-Divisional Judicial Magistrate, Nowrangapur. Against the order of conviction and sentence he preferred an appeal before the Sessions Judge, Koraput, Jeypore and the same having been dismissed the petitioner has come up in revision against the aforesaid order of conviction and sentence.
2. The prosecution case may be briefly stated as follows: Petitioner is a petty shop-keeper. On 10th September 1975 at about 6 P. M. on the authority of a search warrant issued by the Sub-Divisional Officer, Nowrangapur P. W. 3, an Inspector, under Regulation 2 of 1968, along with P. W. 7, an Executive Magistrate, and P. W. 6 searched the house of the petitioner. During search they recovered some pledged articles and 23 Modaks from a self longing on a wall. P. W. 7, the Executive Magistrate, thereafter sent for the Excise Sub-Inspector, P. W. 2 who seized the Modaks (M.O.I.) under Ext. 4. Subsequently another 10 packets of Modaks (M.O. II) were recovered from the wall almirah of the petitioner. This was also seized by P. W. 2 under Ext. 5. At about 1.30 A.M. in the night the wooden cabin of the petitioner used as a betel shop was searched and 150 Gms. of Modaks were found in a tin diba (M.O. III) which was also seized under Ext. 7. On 13-9-1975 at about 4.15 P. M. a search was made by P. W. 2 of the wooden cabin of the petitioner and he recovered Exts. 1 and 2 which are letters written by one Krishna Chandra Rath, co-accused wherein it was indicated that this Krishna Chandra Rath, had sold the Modaks to the petitioner. On 7-1-197(5, the samples from M.Os. I, II and II, were sent for chemical examination as per forwarding report, Ext. 8. The report (Ext. 9) of the Chemical Examiner was received on 29-3-1976 and thereafter the prosecution report was lodged before the 1 earned Magistrate under Sections 14 and 21 of the Act on 13-9-1976. On behalf of the prosecution, seven witnesses were examined and several documents including the chemical examiner's report (Ext. 9) were produced. No witness was examined on behalf of the defence. The learned Magistrate after consideration of the evidence convicted the petitioner as aforesaid.
3. Mr. Mohanty, learned Counsel submitted that though the Chemical Examiner detected the ingredients of Indian Hemp in the samples (vide his report, Ext, 9), the exact percentage of hemp could not be determined; that separate samples from each of the M, Os. I, II and III were not taken and all the samples taken were mixed up and were sent to the Chemical Examiner; that the samples were taken by P. W. 2 after a period of more than four months from the date of seizure; that the seals of the containers M. O. S. I, II and III were broken by P. W. 2, and there was nobody to witness the taking of the samples and opening of the containers; that taking of the samples was done surreptitiously in violation of law without observing the formalities for taking the same; that the search warrant authorising the entry of P. Ws. 3 and 7 and their party to the premises of the petitioner was illegal being in contravention of Clause 15(4) of Regulation 2 of 1963; that the search of wooden cabin by P. W. 2 is illegal being contrary to Sections 22 and 23 of the Act; that there is no evidence that before conducting the search P. W. 2 had given any personal search; and that M. Os. I and II were seized from the Executive Magistrate, but not from the petitioner.
Mr. Mohanty further argued that in order to attract Section 14(a) of the Act the prosecution has to prove that the accused possessed manufactured drugs. 'Manufactured Drug' has been defined in Section 2(g) which includes medicinal hemp. 'Medicinal hemp' has been denned in Section 2(d) and according to the definition 'medicinal hemp' moans any extract of tincture or hemp. The report of the Chemical Examiner does not disclose that the Modaks contain any extract; of tincture or hemp. On the contrary he says that only the ingredients of Indian hemp could be detected in the modaks, So on these grounds the charges against the petitioner would fail.
4. In this case M. Os, I and II were recovered during the search made by P. W. 3 along with P. Ws. 6 and 7 and the same were kept with P. W. 7, the Executive Magistrate, and were subsequently hander over to P. W. 2, the Excise Sub-Inspector. Subsequently M. O. HI was recovered from the wooden cabin by P. W. 2 on 13-9-1975 and then the seizure list of M. Os. I, II and III were prepared vide Exts. 4, 5 and 7. From the evidence it is disclosed that M.Os. I & II were sealed and the seal was kept with a local businessman, P. W. 5. But the evidence is not clear whether M. O. Ill was sealed or not. P. W. 2 in his evidence has stated that the samples M. O.s I and II were sent to the Director of Forensic Science Laboratory, Calcutta for chemical examination on 7-1-1976, But he does not say before whom the samples were taken, On the other hand he stated that he brought back the seal from Somnath Subudhi (P. W. 5) and got the M. Os. sealed and again handed over the seal to P. W. 5. Thus it appears that P. W. 2 on his own accord broke the seal and took the samples and has not taken the samples in presence of any witness.
There is no evidence or P. W. 2 does not say that the seals of M. Os. I and II were broken in presence of P. W. 5 or any other witness. There is also no evidence to show that the samples were taken in presence of the Magistrate; P. W. 2 has admitted that he mixed up all the three samples of M. Os. I, II, and III and took the samples and sent the same for chemical examination.
Thus from the evidence it is absolutely clear that the samples were not taken after observing due formalities. P. W. 2 has not given any notice about the taking of samples to the petitioner. He has not stated whether any witness was present while he took the sample. Thus from the above circumstances Mr. Mohanty argued that the taking of samples was not done according to the established procedure and after observing due formalities. The samples should have been taken either before the Magistrate or before the witnesses. P. W. 2 had no business to break the seals of the containers of M. Os. I and II in the absence of any witness. So when the samples were not taken after observing due formalities and all these three samples were mixed up together and the accused was not given any notice about taking of the sample, there must arise great doubt about the prosecution case. As the samples were not taken according to the established procedure, there can be no conviction basing only on the report of the Chemical Examiner.
No doubt, in this case there is no provision under the Act and nothing was produced before me to show as to how the samples were to be taken as is being done under the Prevention of Food Adulteration Act. But it is incumbent on the prosecution to give notice to the accused before taking the samples and the samples should have been taken before some witnesses or before the Magistrate. This has not been done in this case. Further in this case the samples were taken after a period of more than four months of the seizure without observing due formalities. As taking of the samples in this case is not above board and has not been done after observing due formalities, I am constrained to hold that the report (Ext. 9) of the Chemical Examiner will not help the prosecution to find the petitioner guilty.
Learned Additional Government Advocate, however, pointed out that the samples were forwarded by the Magistrate to the Chemical Examiner with the forwarding letter (Ext. 8) as would appear from the certificate appended to Ext. 8. But this will not help the prosecution in any way as there is no mention there that the samples were taken in presence of the Magistrate. No documents and/or evidence have been produced before me to show that the samples were taken in presence of the Magistrate. On the other hand the evidence of P. W. 2 belies the contention of the learned Additional Government Advocate. So the contention of Mr. Mohanty on this score has considerable force. As I am of the view that the samples were not taken after observing due formalities and in a manner which is not beyond reproach the petitioner is entitled to the benefit of doubt. The other points raised by Mr. Mohanty need not be gone into in view of the above finding.
5. In the result, therefore, the revision is allowed and the petitioner is acquitted. The M. Os. I, II and III be destroyed after four months.