SHARMA, J. - (1.) THESE two appeals are directed against the judgment and order dated 9. 4. 1999 passed by the Special Judge, NDPS Cases, Jhalawar, by which he has convicted the accused appellants under Sec. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short "the Act") and sentenced each of them to undergo rigorous imprisonment for 10 years with a fine of Rs. 10,0000/- each, in default thereof, to further undergo 1 year's rigorous imprisonment.
(2.) THE prosecution casein nut shell is, that on 24. 4. 97 Shri Chawand Singh, SHO, Police Station Manohar Thana, Jhalawar received telephonic information, Ex. P. 23 to the effect that two persons would be carrying opium below the seat of a motor cycle bearing No. MP 08/ A 1011. He reduced the information to writing in Rojnamcha at serial No. 767, Ex. P. 25. THEreafter, Shri Chawand Singh alongwith police party rushed to Semali Hat Jod, Aam Road, Manohar-,thana, Beenaganj. At 8. 00 PM, a motor cycle came from the side of Manohar Thana, which he made to stop by hand signal and on checking the number, it was found to be Rajdoot motor cycle bearing No. MP 08/ A-1011. THE driver disclosed his name as Majid Khan and the person sitting at the back seat of the motor cycle disclosed his name as Bhikam Singh. THEreafter, the SHO informed the accused in writing through notice, Ex. P. 13 and Ex. P. 14 to have their search and the search of their vehicle conducted under the provisions of the Act. THE accused gave their consent in writing to have their search conducted by the SHO him- self. On personal search of the accused, nothing objectionable could be found from them, however, on search of their vehicle, a 'potali' tied in a cloth was found from the tool-box of the motor cycle. On opening the `potali', opium was found in a polythene bag. On asking for licence, the accused showed their inability to have any licence. He then prepared search and seizure memo Ex. P. 2. On weighing, it was found to be 900 grams along with packing. THE SHO then took samples of opium each weighing 50 grams and sealed the samples. He also sealed the remaining opium. He arrested the accused persons vide arrest memos Ex. P. 19 & P. 20, prepared site plan Ex. P. 1. After completion of above formalities, a case was registered vide FIR No. 74/97, Ex. P. 21 for offence under Sec. 8/18 of the NDPS Act. During investigation, the police recorded statement of witnesses u/s. 161 Cr. P. C. and sent the samples to the Forensic Science Laboratory for chemical examination. On chemical examination, the sample contained in packet marked AI gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 6. 18% morphine. After completion of investigation, the police submitted a charge sheet in the court of learned Special Judge, NDPS Cases, Jhalawar. The learned trial Judge, on the basis of material on record and after hearing the arguments of counsel for the parties framed charge against the accused under Sec. 8/18 of the Act, to which the accused denied and claimed to be tried. During trial, the prosecution in support of its case, examined as many as 11 witnesses and exhibited various documents. Thereafter the accused were examined under Section 313 Cr. P. C. They did not examine any witness in their defence. The trial of the case resulted into conviction and sentence of the accused appellants as aforesaid. Hence the present appeal.
(3.) I have heard Mr. Biri Singh, learned counsel for the accused appellants and Mr. Madhav Mitra, learned Public Prosecutor and carefully perused the judgment under appeal and examined the record of the case. The first contention raised by the counsel for the accused appellants is that there was only partial compliance of the provisions of Section 50 of the Act. He submitted that a perusal of notice Ex. P. 13 and Ex. P. 14 would make it clear that the SHO made aware accused of their legal right to have their search conducted, gave them option to have their search conducted either by SHO himself or by any Magistrate or by any Gazetted Officer of the Police Department. He submitted that under the provisions of Sec. 50 of the Act, the SHO was required to take the accused persons to the nearest Gazetted Officer of the departments or the nearest Magistrate. By not disclosing so, the valuable right of the accused appellants has been taken away thereby causing serious prejudice to them. On the other hand, learned Public Prosecutor has contended that in the facts and circumstances of the case, the SHO PW 11 Chawand Singh was not at all required to act under the provisions of Sec. 50 of the Act as it was not a case of search of a person land that recovery of contraband was made from the tool box of a motor cycle. ;