Sunil Kumar Garg, J. - (1.) The above named accused-appellant has preferred this appeal against the judgment and order dated 10.7.1995 passed by the learned Special Judge, NDPS Cases, Banswara in Sessions Case No. 8/93, by which he convicted the accused-appellant for the offence under section 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced him to undergo ten years' RI and to pay a fine of Rs. 1 lac, in default of payment of fine to further undergo three months' RI.
(2.) The facts giving rise to this appeal, in short, are as follows:- "On 28.4.1993, PW 4 Gajsingh, SHO, Police Station Kalinjara, District Banswara proceeded in a Jeep alongwith Shankarlal, PW 6, Fateh Singh, PW 5 and Madan Singh, driver of the Jeep towards Badodiya, where he received a secret information from mukhbir to the effect that in Bus No. RJ 14 2214 of Chittorgarh Depot, one person would carry with him contraband opium. Thereafter, PW 4 Gajsingh alongwith other police officials including PW 1 Harish Chandra and PW 5 Fateh Singh proceeded towards the spot in question and on the way, they took two motbirans, namely, PW 2 Purshottamlal Joshi and PW 3 Guruwachan Singh and reached the Bus Stand where the Bus in question came and thereafter, they entered in the Bus where they found one person having attache sitting on seat No. 11. On being asked, he told his name as Ratanlal (accused-appellant). Thereafter, accused-appellant was alighted from the Bus and PW 4 Gajsingh informed PW 10 Rafiq Mohd. Dy.S.P. on telephone about the incident and in the meanwhile, PW 4 Gajsingh took the accused-appellant alongwith attache and motbir witnesses to the Police Chowki Badodiya. On receiving this information, PW 10 Rafiq Mohd. proceeded in a Government Jeep and reached the Police Chowki Badodiya where he found PW 4 Gajsingh, PW 1 Harish Chandra, PW 5 Fateh Singh and PW 6 Shankarlal and two motbir witnesses, namely, PW 2 Purshottamlal and PW 3 Guruvachan Singh and accused-appellant sitting there. The accused-appellant was having attache and on being asked by PW 10 Rafiq Mohd. to whom this attache belonged, the accused- appellant told that it was his and he was further asked whether this attache contained contraband opium, but accused-appellant replied in the negative. Then, accused-appellant was told by PW 10 Rafiq Mohd. that "He is Dy.S.P. and Gazetted Officer and he has full doubt that this attache contains contraband opium, therefore, it is necessary to search this attache and if accused-appellant wanted to go before the Magistrate, he is free to go" and upon this, accused-appellant replied that he can be searched by PW 10 Rafiq Mohd. Thereafter, in the presence of PW 2 Purshottamlal and PW 3 Guruvachan Singh and other police officials, key of the attache was demanded from the accused-appellant, but the accused-appellant told that he had thrown it away and, thereafter, lock of the attache was opened through an iron rod and on opening, four polythene bags containing black substance and two small bags were found in the attache and on smelling, it was assessed that they all contained contraband opium. Then, PW 1 Harishchandra weighed all the bags and on weighing, weight of bag No. 1 2kg. 50grms., bag No. 2/2kg. 750 grms., bag No. 3 lkg. 950grms., bag No. 4.1 kg. 650grms., bag No. 5 2kg. 400grms., and bag No. 6 190grms., was found. Out of five bags, two samples of 30 grams. each were taken from each bag and sealed on the spot and a they were marked as A/1, A/2, B/1, B/2, C/1, C/2, D/1 D/2 and E/1 and E/2 respectively and the remaining opium contained in each bag was also sealed and marked as A, B, C, D & E respectively. All the articles recovered from the accused-appellant were sealed on the spot and deposited in the Malkhana by PW 4 Gajsingh and they were received by PW 9 Rajendra Singh. The fard of search and seizure Ex.P/1 was prepared on the spot by PW 10 Rafiq Mohd. Thereafter, samples A/1, B/1, C/1, D/1 & E/1 were sent for chemical analysis to FSL through PW 8 Vasudeo, who deposited them in the FSL at Jaipur and receipt of depositing them in FSL is Ex.P/ 7. The report of FSL is Fx.P/4, where it has been stated that sample contained in each of the packets marked A-1 to E-1 gave positive tests for the chief constituents of the coagulated juice of opium poppy having 5.15% (five point one five per cent), 1.61 (one point six one per cent), 8.46% (eight point four six per cent), 1.61% (one point six one per cent) and 5.09 (five point zero nine per cent) morphine respectively. After usual investigation, police submitted a challan against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session and, thereafter, the case was transferred to the learned Special Judge, NDPS Cases, Banswara. On 14.9.1993, the learned Special Judge framed charge under section 8/18 of the NDPS Act against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 10 witnesses and some documents were got exhibited. Thereafter, statement of the accused-appellant under section 313 Cr.P.C. was recorded. After conclusion of the trial, the learned Special Judge, NDPS Cases, Banswara, through his judgment and order dated 10.7.1995 convicted the accused-appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as stated above holding inter alia : 1. That in the present case, compliance of the provisions of Section 50 of the NDPS Act has been made by the prosecution. 2. that no case of tampering with the seal is made out. 3. That the prosecution has proved its case beyond reasonable doubt against the accused-appellant or the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 10.7.1995 padsed by the learned Special Judge, NDPS Cases, Banswara, the present appeal has been filed by the accused-appellant.
(3.) In this appeal, the following submission have been made by the learned counsel for the accused-appellant : 1. That in the present case, no compliance of the provisions of Section 50 of the NDPS Act has been made by the prosecution, as PW 10 Rafiq Mohd. has mentioned that he is a Gazetted Officer and no specific question was put to the accused-appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and thus, finding of the learned Special Judge in this respect are liable to be set aside. 2. That no separate seal has been taken while affixing the seal on the spot and specimen seal was not sent alongwith the samples to the FSL. Further, there is no evidence that articles seized from the accused-appellant were kept in proper custody. Malkhana register has not been produced and no letters through which the samples were sent from the Malkhana to SP Office and from SP Office to FSL, Jaipur have been exhibited and to whom seal H.C.S. belongs, it is not clear and thus, linking evidence is missing in the present case. 3. That there are material omissions and contradictions between the statements of prosecution witnesses pertaining to search and seizure and thus, case of the prosecution is doubtful. Hence, it was prayed that this appeal be allowed and the accused-appellant be acquitted of the charge framed against him.;