GARG, J. - (1.) THIS appeal has been filed by the accused appellant from jail against the judgment and order dated 25. 8. 1999 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 46/98 by which he convicted the accused appellant for the offence under Sec. 8/15, of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo RI for ten years and to pay fine of Rs. one lac, in default of payment of fine, to further undergo RI for six months.
(2.) SINCE nobody was representing accused appellant as this appeal has been preferred from jail, therefore, this Court vide order dated 17. 7. 2001 appointed Shri Amitab Acharya, Advocate as Amicus Curiae to argue the case on behalf of the accused appellant and he has argued the same. The facts giving rise to this appeal, in short, are as follows:- On 29. 8. 1998 at about 2. 30 PM, PW 8 Jagdish Prasad, SHO, Police Station Kotdi District Bhilwara prepared a Parchakayami (Ex. P/11) stating inter-alia that on that day at about 11. 15 AM, he received a secret information from mukhbir to the effect that one person, who was wearing kurta and dhoti and whose name was Girdhari, was coming on Atlas cycle from the side of Aakola and on the back of his cycle, there was a katta containing opium (poppy husk) and he would sale that opium on the village. That information was reduced into writing in the form of Ex. P/1 and he also made entries in the Rojnamcha Ex. P/18 of that information Govind Singh and PW 2 Onkarlal and police officials including PW 4 Roop Singh, PW 6 Lal Singh and others proceeded towards the spot in a Government Jeep at about 11. 40 AM and reached Aakola Chouraya at about 12. 05 PM and they found the person coming on cycle, as per the secret mukhbir information and he was stopped and on being asked, he told his name as Girdhari @ Gordhan (present accused appellant) and he was informed about the secret information and he was given notice Ex. P/2 under the provisions of Sec. 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and Upon this, he gave his consent that he could be searched by PW 8 Jagdish Prasad. Thereafter, search was conducted and on search, a katta was recovered and it was opened and opium poppy husk was found in it and he was not having a valid license to keep that contraband article. It was weighed on the spot and its weight was found to be 20kg. 600 grms. , out of which, two samples of 500 grms. each were taken for the purpose of chemical analysis and sealed separately on the spot and marked as A and B and rest opium poppy husk was also sealed separately on the spot and marked as C. The fard of search and seizure prepared on the spot by PW 8 Jagdish Prasad is Ex. P/3. The accused appellant was arrested through arrest memo Ex. P/4. The site plan is Ex. P/5. On this parchakayami Ex. P/11, PW 8 Jagdish Prasad chalked out regular FIR Ex. P/12. A detailed report about search and seizure under Sec. 57 of the NDPS act was sent by PW 8 Jagdish Prasad to SP Bhilwara and the same is Ex. P/14. The seized articles were handed over by PW 8 Jagdish Prasad to the Malkhana Incharge PW 9 Kanhaiyalal, who deposited the same in the nalkhana and made entries in the malkhana Register Ex. P/16. Thereafter, PW 9 Kanhaiyalal gave sample to PW 5 Bhanwar Singh through letter Ex. P/8 first carried the sample to SP Office, Bhilwara and after obtaining a forwarding letter Ex. P/9 from PW 7 Bhagwati Lal, who was working in the SP Office, he deposited the same in the FSL, Jaipur and obtained receipt Ex. P/10. The FSL report is ex. P/21, where it was reported that the sample contained in packet marked A gave positive tests for major chemical constituents of coagulated juice of opium poppy hence sample of powdered parts of opium poppy from which juice has been extracted. After usual investigation, police submitted challan against the accused appellant in the Court. On 7. 11. 1998, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence under Sec. 8/15 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited several documents. Thereafter, statement of the accused appellate under Sec. 313 Cr. P. C. was recorded. No evidence was led in defence by the accused appellant. After conclusion of the trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 25. 8. 1999 convicted and sentenced the accused appellant in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubt against the accused appellant for the offence under Sec. 8/15 of the NDPS Act. Aggrieved from the said judgment and order dated 25. 8. 1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant from jail. In this appeal, the following submissions have been made by the learned counsel appearing for the accused appellant: (1) That compliance of Sec. 42 (2) of the NDPS Act has not been made in this case as Banshi, who gave the copy of secret information Ex. P/1 to the higher officers, has not been produced. (2) That compliance of Sec. 50 of the NDPS Act has not been made in this case. (3) That both motbir witnesses have been declared hostile and since they are not supported the prosecution case, therefore, it creates doubt on the prosecution story. (4) That link evidence is missing in this case as when the articles 1 to 3 were produced in the court at the time of examination of PW 8 Jagdish Prasad, the seal was found broken. Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Point No. 1
(3.) ON point No. 1, the case of the learned counsel for the accused appellant is that since the person, namely, Banshi, who gave the copy of the secret information Ex. P/1 to the higher officers, has not been produced, therefore, it can reasonably be inferred that compliance of mandatory provisions of Sec. 42 (2) of the NDPS Act has not been made and thus, the whole trial stands vitiated. There is no dispute on the point that provisions of Sec. 42 of the NDPS Act, if they are applicable in any case, are mandatory. For that the decisions of the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh (1), Mohinder Kumar vs. The State, Panaji Goa (2), State of Punjab vs. Baldev Singh (3) and Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (4) may be seen. To see whether compliance of Sec. 42 of the NDPS Act has been made in this case or not, the evidence and documents produced by the prosecution have to be looked into. ;