SUNIL KUMAR GARG - (1.) This appeal has been filed by the accused appellants against the judgment and order dated 18-1-1999 passed by the learned Special Judge, NDPS cases, Chittorgarh by which he convicted both the accused appellants for the offence under S. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced each of them to ten years' Rigorous Imprisonment and fine of Rs. 1 lac and in default of payment of fine, they shall further undergo R.I. for two years.
(2.) The necessary facts giving rise to this appeal are as follows :- On 21-1-1997, S.H.O., Police Station Kotwali, Chittorgarh Shri Ganpat Singh Chouhan, PW. 13 received a secret information that two persons having opium with them are travelling by Roadways Bus from Neemach to Delhi and the Bus is likely to arrive at Bus Stand Chittorgarh at about 8.45 p.m. That information has been reduced in writing to make the compliance of S. 42 of the NDPS Act and, thereafter, for making further compliance of the said Section, that information was sent to Dy. Superintendent of Police, Chittorgarh by P.W. 13 Ganpat Singh Chouhan and thereafter, he along with Police party consisting of Ishwarlal, ASI, PW 10, Babulal, PW. 6, Mannalal, PW. 7, Jai Prakash and others reached Bus Station, Chittorgarh, where Bus No. RJ9 P728 arrived and PW. 13 Ganpat Singh entered the Bus and he found that two persons were sitting on the last seat of the Bus. PW. 13 Ganpat Singh enquired from them. They disclosed their names as Hazari and Mohan. Thereafter, a notice Ex. P/5 under the provisions of S. 50 of the NDPS Act was given to the accused appellant Mohan by PW. 13 Ganpat Singh informing him whether he wants to be searched before a Gazetted Officer or a Magistrate. After receiving the notice, accused appellant Mohan gave his consent and, thereafter, PW. 13 Ganpat Singh, in presence of Motbirans PW. 4 Chunni Lal and PW. 5 Shankerlal made search and recovered from accused Mohan 2 Kg. opium, which was in the Polythene bag wrapped in a cloth on the belly, out of which, 30 gms. (two samples) were taken and the same were sent to FSL for chemical analysis. Thereafter, accused appellant Hazari was also given notice Ex. P/8 under the provisions of S. 50 of the NDPS Act informing whether he wants to be searched before a Gazetted Officer or a Magistrate. After receiving the notice, accused appellant Hazari gave his consent and, thereafter, PW. 13 Ganpat Singh, in presence of Motbirans PW. 4 Chunni Lal and PW. 5 Shankerlal made search and recovered from accused Hazari 1 kg. opium, which was in the polythene bag wrapped in a cloth on the belly, out of which 30 grams. (two samples) were taken and the same were sent to FSL for chemical analysis. From the FSL report Ex. P/16, it appears that both samples gave positive tests for the presence of chief constituents of coagulated juice of opium Poppy having 5. 32% (five point three two percent) morphine. Both the accused appellants were arrested and after usual investigation, police submitted challan against the accused appellants for the offence under S. 8/18 of the NDPS Act. The learned Special Judge framed charges against the accused appellants for the offence under S. 8/18 of the NDPS Act. Both the accused appellants denied charges and claimed trial. The prosecution examined as many as 13 witnesses and got exhibited 24 documents. Thereafter statements u/S. 313, Cr. P. C. were recorded. After recording evidence and conclusion of trial, the learned Special Judge vide his judgment and order dated 18-1-1999 found both the accused guilty of the charge under S. 8/18 of the NDPS Act and convicted and sentenced them as stated above. Note :- By the said judgment and order dated 18-1-1999 passed by the learned Special Judge, one accused Bhanwarlal was acquitted of the charge framed against him under S. 8/29 of the NDPS Act. Aggrieved from the said judgment and order dated 18-1-1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, the present appeal has been filed by the accused appellants.
(3.) In this appeal, the following arguments have been raised by the learned counsel for the accused appellants :- 1. That while effecting search and seizure in this case, the mandatory provisions of S. 42 of the NDPS Act have not been followed and non-compliance of the mandatory provisions of S. 42 vitiates the trial; 2. That compliance of the provisions of S. 50 of the NDPS has also not been made by the prosecution and as a result of non-compliance of the said provisions the trial stands vitiated and thus, accused appellants deserve to be acquitted only on this ground. 3. That according to the prosecution, the samples which were taken out, were 30 grms. each, but according to the FSL, they received samples of 265 grms. This shows the variation in samples weight, therefore, it cannot be said that the samples were the same which were recovered from the accused appellants and the probability of tampering with the sealed sample cannot be overruled. Hence, both the accused appellants should be acquitted of the charge under S. 8/18 of the NDPS Act. ;