GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 18. 6. 1996 passed by the learned Special Judge, NDPS Cases, Bhilwara accused appellant for the offence under section 8/18 of the NDPS Act and sentenced him to under go RI for ten years and a fine of Rs. one lac, in default of payment of fine, to further undergo RI for two years.
(2.) THE facts giving rise to this appeal, in short, are as follows:- On 29. 4. 1990 at about 8. 15 AM, PW 2 Ram Singh, SHO, Police Station Kachhola lodged a written report Ex. P/1 with C. O. , Thana Shakargarh District Bhilwara stating inter-alia that upon instructions of Superintendent of Police, Bhilwara at about 1. 00 AM, he went for Nakabandi at Tiraha Amargarh, where PW 7 Dilip Singh and PW 1 Ajij Mohd. Constables posted at Police Chowki Amargarh also joined him and they were also patrolling at that place. It was further stated in the report that thereafter PW 2 Ram Singh alongwith PW 7 Dilip Singh and PW 1 Ajij Mohd. proceeded towards Bhojgarh Hotel and reached there at about 2. 15 a. m. and at that time, he saw one person carrying beg on his shoulder and was going towards Hotel. That person was stopped and two motbirs, namely, Dildar and PW 4 Naresh Chandra were also called. On being asked, that person told his name as Kajod Singh (present accused appellant) and he further told that the was carrying doda post (poppy straw) in the bag for which he was not having any valid licence and thus, he has committed offence under Sec. 8/18 of the NDPS Act. THEreafter, doda post found in the bag was weighed and its weight was found to be 11 kg. , out of which, two samples of 300 grms. each were taken and sealed separately on the spot and marked as B and C and the remaining doda post (poppy straw) was also sealed separately on the spot and marked as A. THE fard of search and seizure prepared on the spot by PW 2 Ram Singh is Ex. P/3. THEre accused appellant was arrested through arrest memo Ex. P/4. THE recovered articles and samples were handed over by PW 2 Ram Singh to the Malkhana Incharge PW 8 Ram Prasad, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/12. On that report, a regular FIR Ex. P/2 was chalked out at Police Station Shakargarh District Bhilwara THEreafter, through letter Ex. P/8, two samples were given to PW 9 Pradeep Singh, who handed over the same to PW 5 A. V. Joseph, who was working in the SP Office, Bhilwara and, thereafter, PW 5 A. V. Joseph handed over the samples alongwith letter Ex. P/5 to PW 3 Sharafuddin for depositing them in the FSL, Jaipur and on 15. 5. 1990. PW 3 Sharafuddin deposited the samples in the FSL, Jaipur and obtained receipt Ex. P/5-I. THE FSL report is Ex. P/9 in which it was reported that each of the sample contained in the packet marked B and C gave positive test for the presence of chief constituents of opium, hence the sample was of dried crushed capsules of poppy from which juice has been extracted. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 5. 5. 1992, learned Sessions Judge, Bhilwara framed charge for the offence under Sec. 8/18 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. THErefore, statement of the accused appellant under Sec. 313 Cr. P. C. was recorded. After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 18. 6. 1996 convicted the accused appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia:- 1. That in the present case, provisions of Sections 42 and 50 of the NDPS Act are not applicable. 2. That link evidence has been produced by the prosecution showing that the seals on the samples from the date of seizure till they reached the FSL, Jaipur remained in-tact. 3. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sec. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 18. 6. 1996 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant. In this appeal, the following submissions have been raised by the learned counsel appearing for the accused appellant:- 1. That since personal search of the accused appellant was made by PW 2 Ram Singh, therefore, compliance of mandatory provisions of Sec. 50 of the NDPS Act was necessary and since compliance of Sec. 50 of the NDPS Act has not been made in the present case, therefore, whole trial against the accused appellant stands vitiated and he is entitled to acquittal on this ground alone. 2. That chain of link evidence that seals on the samples from the date of seizure till they reached the FSL, Jaipur, is not complete, as there is no evidence as to who gave sample from malkhana to PW 9 Pradeep Singh as there is no entry in the Malkhana Register Ex. P/12 that samples after taking out from Malkhana were handed over to PW 9 Pradeep Singh, This, it cannot be said that the seals of the samples remained intact and the possibility of tampering with the samples cannot be ruled out and hence, the accused appellant is entitled to benefit of doubt. 3. That contraband article alleged to have been recovered from the accused appellant was doda post (poppy straw), which is defined in sub clause (xviii) of Sec. 2 of the NDPS Act and in such circumstances, he should have been charged for the offence under Sec. 8/15 of the NDPS Act instead of 8/18 of the NDPS Act and thus, conviction of the accused appellant for the offence under section 8/18 of the NDPS Act is palpably illegal and on this ground also, the accused appellant should be acquitted. Hence, it was prayed that his 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. To appreciate the above contentions, evidence oral as well as documentary produced in this case has to be looked into. Point No. 1
(3.) ON this point, the case of the learned counsel for the accused appellant is that since personal search of the accused appellant was made, therefore, compliance of Sec. 50 of the NDPS Act was necessary and in absence of this, whole trial against the accused appellant stands vitiated and he is entitled to acquittal on this ground alone. The learned Special Judge held that since it was a case of chance recovery, therefore, provisions of Sec. 50 of the NDPS Act are not applicable and in coming to the conclusion that provisions of Sec. 50 of the NDPS Act are not applicable in the present case, he has placed reliance the the decision of the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh (1 ). The question that arises for consideration is whether the above findings of the learned Special Judge that provisions of Sec. 50 of the NDPS Act are not applicable in the present case are correct one or not. ;