S.L.Kochar, J. - (1.)This is an appeal preferred by the appellant, against the judgment passed by III ASJ Mandsaur in ST No. 18/94 on 27/2/1997, thereby convicting the appellant, for the offence punishable under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentencing him to undergo RI for 10 years with fine of Rs. One lac, in default of payment of fine further RI for 2 years.
(2.)The facts necessary for disposal for this appeal, are that on 28th September 1993, the SHO of Police Station Afajalpur, received information from informanljMukhbir that one Gopal Kumawat of village Lasudawan would be going to village Badwan along with illicit opium. On the basis of the said information, Exh. P/i, SHO O.P. Dube (PW 8) made a Panchanama of the information in presence of witnesses Subhash (PW 1) and Dulesing (PW 2) and sent the information Exh. P/iS to SDOP Sitamau, along with a copy thereof with constable Heeralal (PW 6) which was received by reader Abdul Gafur Mansuri (PW 7). Thereafter, SHO O.P. Dube (PW 8) alongwith police force reached the field of one Mohan Gayari and arranged the trap. As soon as Gopal came there along with the opium, he was stopped by the police. On interrogation, he disclosed his name as Gopal. Thereafter, in compliance to Section 50 of the Act, appellant Gopal was given an option to be searched before gazetted officer, Magistrate by police officer concerned O.P. Dube (PW 8). The appellant consented for his search to Investigating Officer, O.P. Dube (PW 8). The consent panchanama is Exh. P/2. On search, at the instance of the appellant, 9 kg. opium was found in fertilizer bag which was in his possession. Out of which, a sample of 2 packets of opium, in 2 Bristal Cigarette packets, containing 30 gms each were prepared for sending for chemical examination. Chemical Analyst found that the samples were of opium, containing 3.56 morphine. On usual investigation, chargesheet was filed and on trial, the appellant was convicted and sentenced as indicated above.
(3.)Learned counsel for the appellant submitted that there is no compliance of Sections 42 and 50 of the Act as also the samples were not kept in proper custody. Therefore, the conviction of the appellant is bad in law. In support, the ccunsel placed reliance on th cases Jayantllal Modi and Ors. v. State of Maharashtra K. Mohanan v. State of Kerala ; Valsala v. State of Kerala and Baldev Singh v. State of Punjab