M.R. Calla, J.
1. This Appeal under Section 374 of Criminal Procedure Code, 1973 is directed against the judgment and order dated 25-10-1988 passed by the Addl. Sessions Judge, Ahmedabad (Rural), Mirzapur in Sessions Case No. 49 of 1988 whereby the appellant was convicted for an offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (which will hereinafter be referred to as 'the NDPS Act') and sentenced to 2 years R.I. and a fine of Rs. 5,000/- in case of default to deposit the fine, to further undergo 6 months R.I.
2. The incident relates to 2-10-1987. In the evening at about 12.30 the P.S.I., Head Constable and Constable of Barviala Police Station noticed the appellant sitting on a stone on Bhavnagar-Barvala High way. The appellant having seen the police felt scared. The aforesaid police people caught hold of the appellant and found that he was having some substance in a red handkerchief, which was put in a polyethylene bag. The substance is alleged to be 250 grams of Ganja. The P.S.I, sealed 5 grams of Ganja separately in a packet as a sampl to be sent to the Forensic Science Laboratory and the remaining substance was kept in a separate bag. The substance kept for sample was sealed by the P.S.I, and the remaining substance was separately sealed by the concerned P.S.I, and the appellant was arrested on the spot. The Panchanama and seizure Memo was prepared in presence of two panchas and their signatures were also obtained. On 3-10-1987 the appellant was produced before the Court and on the very day he was bailed out. The appellant remained on bail throughout the period of trial. The appellant faced the sessions trial on the basis of the charge-sheet Exh. 4 and on conslusion of trial he was convicted and sentenced, as aforesaid, for the offence under Section 20(b)(i) of the NDPS Act. Aggrieved from this judgment and order of conviction and sentence dated 25-10-1988 the appellant has preferred the present Appeal. It is given out by the learned Counsel for the appellant that in this Appeal the sentence was suspended and he was granted bail on 3-11-1988 by an order passed in Misc. Criminal Application No. 2468 of 1988.
3. The learned Counsel for the appellant has submitted that the Panchas have not supported the case of the prosecution and the Panchanama cannot be said to have been proved. In this regard he has invited the attention of the Court to the deposition made by the Panch witness Shi vrajbhai at page 55 of the paper book and other Panch witness Jayantilal at page 77 of the paper book. The learned Counsel has also argued with reference to Sections 50, 52, 55 and 57 of the NDPS Act and has submitted that there is a clear breach of the provisions contained in the aforesaid Sections and, therefore, the conviction and sentence cannot be sustained in the eye of law and the appellant deserves to be acquitted. It has been submitted that the appellant was never told by the Police people that he was being arrested under NDPS Act and, therefore, the appellant did not get any opportunity to say that he may be taken to the nearest available Gazetted Officer or the Magistrate for the purposes of search. It has also been submitted that the Officer incharge of the Police Station did not affix any seal to the articles, which were kept in his custody as also the sample which was to be sent to the Forensic Science Laboratory and further that after the arrest and seizure, report of all particulars of such arrest and seizure had not been made to the immediate superior officer. The learned Counsel for the appellant has placed reliance on a decision of Delhi High Court in the case of Ratan Lal v. State, reported in 1987 (2) Crimes 29 in which it has been held that it was a fatal lapse on the part of the prosecution when it failed to get the seized material and the samples preserved for examination of CFSL sealed with the seal of SHO before it was deposited with him for safe custody as envisaged by Section 55 of the NDPS Act. On the grounds as urged aforesaid, the conviction and sentence has been challenged.
4. Mr. Trivedi, learned Addl. P.P. has submitted that merely because the Panch witnesses have not supplied the panchanama, the conviction is not liable to be set aside. He has also relied upon AIR 1994 SC 18972 : (1994 Cri LJ 3702) (State of Punjab v. Balbir Singh) and has submitted that it was not at all a case in which there was a prior information. The Police people had suspected the appellant on the State Highway and, therefore, the procedure of Section 50 was not required to be followed. He has also submitted that Section 52 and Section 57 are not mandatory and the provisions of these two Sections have been substantially complied with and so far a the argument raised with reference to Secton 55 by the learned Counsel for the appellant is concerned, the submission of the learned Addl. P.P. is that in fact the seals have not been found to have been tampered with and, therefore, even if it is found that the SHO i.e., officer in charge of the Police Station had not put his seal on the sample in question, the same is of no consequence.
5. However, I need not to go into these questions because the learned Addl. P.P., in all fairness, has very candidly invited the attention of the Court to a Division Bench decision of this Court in the case of Kaushikkumar alias Gopaldas Prabhudas Bhatt v. State of Gujarat, reported in 1991 (2) GLR 905. In this decision the Division Bench has considered the proviso under Section 8 of NDPS Act. It has been provided that, subject to other provisions of this Act and the Rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of Ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of Ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government, may, by notification in the official Gazette, specify in this behalf, Section 8 of the NDPS Act is reproduced as under for ready reference :
8. Prohibition of certain operations. - No person shall -
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India, or tranship any narcotic drug or psychotropic substance.
except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provisions, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation :
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of Ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State, and export inter-State of Ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.
Provided further that nothing in this section apply to the export of poppy straw for decorative purposes.
6. The Notification issued by the Central Government specify 13-12-1989 as the relevant date. The Division Bench had held that till 13-12-1989 possession etc., of Ganja was not an offence under NDPS Act. In the case at hand, admittedly the incident had taken place on 2-10-1987, which is certainly a date earlier than 13-12-1989 and, therefore, it cannot be said that on 2-10-1987 the possession of Ganja was an offence under NDPS Act. The conviction and sentence under challenge in this case with reference to Section 20(b)(i) of NDPS Act, therefore, cannot be sustained in the eye of law and it deserves to be set aside on this ground alone without going into any of the points which have been raised in this Appeal.
7. The learned Addl. P.P. has argued that the possession of Ganja on the relevant date i.e. on 2-10-1987 was an offence under the Bombay Prohibition Act. That may be so, but at this stage, now after ten years, I am not inclined to remand the matter back so as to call upon the appellant to face a trial afresh. He has already faced the agony of this litigation under the NDPS Act and in the opinion of the Court it is not advisable to start the trial under the Prohibition Act against the appellant.
8. Accordingly the Appeal is allowed. The impugned judgment and order of conviction and sentence passed on 25-10-1988 by the Addl. Sessions Judge, Ahmedabad (Rural), Mirzapur in Sessions Case No. 49 of 1988 is hereby set aside and the appellant is acquitted of the offence under Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant need not surrender to his bail bonds and the bail bond shall stand hereby cancelled.