SUNIL KUMAR GARG,J. - (1.) This appeal has been filed by the accused-appellant against the judgment and order dated 08.08.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 63/98, by which he convicted the accused-appellant for the offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced to ten years' Rigorous Imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo 2? years' R.I.
(2.) It arises in the following circumstances :- On 29.08.1998 at about 4.00 AM, PW-8 Prabhu Singh, SHO, Police Station Kalyanpur District Barmer received a secret information from mukhbir to the effect that on Suzuki Motor-cycle three persons were going towards Charlai and Sarwari from Doli and there was a bag on back side of Motor-cycle and in that bag, there was 6 kgs. milk of opium and out of these three persons, the name of one of them was Thana Ram (present accused-appellant) and he did not know the names of other two persons. That information was reduced into writing by PW-8 Prabhu Singh in Ex.P /14. He also entered this information in the Rojnamcha Ex.P/15. Thereafter, PW-8 Prabhu Singh alongwith raiding party consisting of PW-4 Raghunathram, PW-5 Hanumanram, PW-3 Roop Singh proceeded in a Government Jeep towards the spot and reached near Sarwari Bus Stand frbm where two motbirs, namely, PW-6 Kan Singh and PW-11 Shaitan Singh were taken and made Nakabandi and at about 5.00 AM, one Suzuki Motor-cycle bearing No. RNM 8071 on which three persons were sitting, came from the side of Kalyanpur and seeing that motor cycle, PW-8 Prabhu Singh gave hint to stop the motor cycle, but seeing the police, they accelerated the speed of the motor-cycle, but since it was running in high speed, it was slipped near the Babul tree, where PW-2 Mangilal and Dalveer Singh were standing and they stopped the motor-cycle, but out of three persons, two escaped and one was caught hold and on being asked he told his name as Thana Ram (present accused-appellant). Thereafter, accused-appellant was given notice Ex.P /6 under section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and he gave his consent that he should be searched before the Magistrate and upon which, PW-15 Ghasiram, Tehsildar, Pachadpara was called upon through PW-4 Raghunathram and then PW-15 Ghasiram came there and then, search was made and from the motor-cycle, a bag was recovered and it was opened and two polythene bags containing brown-black colour substance were found in it and on being tasted, it was assessed that it was nothing, but milk of opium and the accused-appellant was not having a valid license to keep that milk of opium. Thereafter, it was weighed and in one polythene bag, 2,500/- kgs. milk of opium was found, out of which, two samples of 30 grms. each were taken for the purpose of sending them for chemical examination and sealed separately on the spot and marked as A and Al and rest milk of opium was also sealed on the spot separately. In the second polythene bag, 3500 kgs. milk of opium was found and out of which, two samples of 30 grms, each were taken and sealed separately on the spot and marked as B and B1 and the remaining milk of opium was also sealed separately on the spot. The fard of search and seizure was prepared on the spot by PW-8 Prabhu Singh and the same is Ex.P/8. The accused-appellant was arrested through arrest memo Ex.P /9. Through fard Ex.P/11, the motor cycle in question was seized. The fard of specimen impression of seal is Ex.P /12. The notices which were given to both motbirs PW-6 Kan Singh and PW-11 Shaitan Singh are Ex.P /5 and Ex.P/17 respectively. A detailed report for compliance of Section 57 of the NDPS Act was sent by PW-8 Prabhu Singh to SP Barmer and the same is Ex.P /20. PW-8 Prabhu Singh chalked out regular FIR Ex.P/19. Thereafter, PW-8 Prabhu Singh handed over the seized articles and samples to PW-4 Raghunathram, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/5-A. Thereafter, two samples were given to PW-3 Roop Singh for depositing them in the FSL and PW-3 Roop Singh after obtaining forwarding letter Ex.P/ 3 from SP Office, Barmer deposited the samples in the FSL, Jaipur and obtained receipt Ex.P/4. The FSL report is Ex.P/21, where it was reported that sample contained in each of the packet marked A and B gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 4.18% (four point one eight percent) morphine and 4.93% (Four point nine three percent) morphine respectively. After usual investigation, the police submitted challan against the accused-appellant in the Court of Special Judge, NDPS Cases, Jodhpur. On 16.12.1998, the learned Special Judge, NDPS Cases, Jodhpur framed charge, against the accused-appellant for the offence under section 8/18 of the NDPS Act. The charge was read over and explained to the accused-appellant. The accused-appellant pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 15 witnesses and got exhibited several documents. Thereafter, the statement of accused-appellant under section 313 Cr.P.C. was recorded. In defence, two witnesses were produced by the accused-appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Jodhpur through his judgment and order dated 08.08.2000 convicted the accused-appellant for the offence under section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding interalia that the prosecution has proved its case beyond all reasonable doubt against the accused-appellant for the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 08.08.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur, the accused-appellant has preferred this appeal.
(3.) In this appeal, the learned counsel for the accused-appellant has raised the following two main contentions : 1. That in this case, the copy of the secret information Ex.P/14, which was reduced into writing by PW-8 Prabhu Singh in compliance of Section 42(1) of the NDPS Act, has not been sent to the immediate official superior, as required by Sub-section (2) of Section 42 of the NDPS Act and thus, compliance of mandatory provisions of Section 42(2) of the NDPS Act has not been made and thus, whole trial stands vitiated. 2. That in the present case, it is an admitted case of the prosecution that on the motor-cycle in question, three persons were sitting and the bag, from which milk of opium was recovered, was lying on the back side of the motor-cycle and it was not in exclusive possession of the present accused-appellant and since two other persons ran away from the scene, therefore, it cannot be said that the accused-appellant was in conscious possession of the bag in question and, therefore, the prosecution has failed to prove that the milk of opium, which was recovered from the motor-cycle, was in exclusive possession of the accused-appellant. Hence, it was prayed that this appeal be allowed and the accused-appellant be acquitted of the charge framed against him. ;