- (1.) THIS appeal has been preferred against the judgment and order dated 12-4-1994 according to which the Appellant was convicted under Section 8/20/23 of the N. D. P. S. Act by the Spe cial/additional Sessions Judge, Baharaich who sentenced him to undergo 10 years R. I. and a fine of Rs. 1,00,000.
(2.) THE case against the appellant was that on 11-10-90 at abut 4. 00 p. m. when P. W. 1 Inspector Dharamraj Azad, Station Incharge of police-station Rupaidiha, Bahraich alongwith P. W 2 Constable Vish nu Narain Awasthi and other police per sonnel were going for investigating a mur der case in the police jeep, they came across a person on the road in front of vilage Jiagaon. After seeing the police per sonnel, he wanted to run away but the police party was able to apprehended him. He revealed his name as Shiv Charan, ap pellant, and on search being made below the shirt in a bag like pouch some in toxicant was found. On being asked, he stated that it was Charas which he was bringing from Nepalganj. THE appellant was made to remove the Sadari from his body and after breaking the stitches, five kilograms of Charas kept in bundleof plas tic was recovered from the possession of the appellant and recovery memo was prepared. An F. I. R. of the case was registered on the same day at 5. 30 p. m. by P. W. 1 Inspector Dharmraj Azad. THE recovered article was sent to the chemical examiner who reported on 26-8-1993 that it contained Charas. The prosecution examined three witness in all; out of whom P. W. 1 Inspec tor Dharamraj Azad and P. W. 2 Constable Vishnu Narain Awasthi are eye-witnesses whereas P. W. 3 Inspector Onkar Singh is a formal witness who investigated the case. The defence of the appellant was of denial. He did not produce any evidence in his defence. The appellant in this case is in jail. He could not engaged any Counsel and therefore, Sri Jayant Singh Tomar was ap pointed as amicus curiae. We have heard Sri Tomar as well as Additional Govern ment Advocate.
(3.) IT was first argued on behalf of the appellant that it is a case of non-com pliance of provision of Section 50 of the N. D. P. S. Act. IT was argued that the appel lant was not informed at the time of his arrest that he had a right to ask that his search may be taken either in the presence of Magistrate or in the presence of a Gazetted Officer. On the other hand, learned Addtiional Government Advo cate argued that in this connection provision of Section 50 of the N. D. P. S. Act is not attacted inasmuch as it was a case of sudden and chance recovery and seizure of the narcotic, namely, Charas. In support of his contention the learned Additional Government Advocate placed his reliance on a decision of Hon'ble the Supreme Court rendered in the case of State of Pun jab v. Balbir Singh, 1994 SCC (Cri) 634, in which it has been held that in the case of chance recovery provision of Section 50 of the N. D. P. S. Act is not attracted. A perusal of the EI. R. shows that it was a case of chance recovery inasmuch as police party suddenly came across the appellant on the road and when he was search some matter was recovered which was found to be Charas. A perusal of the record of the case shows that the prosecution had not given link evidence. It is not known where the seized Charas was kept after it was recovered from the possession of the ap pellant. It is also not known that who had carried it from the place of recovery to the place of storage. No evidence was also adduced as to who had carried the Charas in question to the Chemical Examiner. The said Charas is said to have been recovered on 11-10-1990 and the report of chemical examiner in dated 26-8- 1993 from which it appears that it was received .;