GARG, J. - (1.) THIS appeal has been filed by the accused appellants against the judgment and order dated 16. 1. 1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Session Case No. 214/97 (102/96) by which he convicted the accused appellant for the offence under Sec. 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced them to undergo ten years rigorous imprisonment and to pay 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 24. 6. 1996 at about 11. 00 PM, PW 14 Prithvi Singh, SHO, Police Station Chanderiya District Chittorgarh made Parchakayami (Ex. P/24) stating inter-alia that he received a secret information at about 8. 00 PM from mukhbir to the effect that accused appellant no. 2 Parthu, resident of Paroli and accused appellant No. 1 Shanker, also resident of Paroli had gone to Mishro-ki- pipli for purchasing opium and after purchasing it, they were coming on cycle alongwith the opium and in case the search was not conducted within time, there was every possibility that they would conceal the opium and the purpose of information would be frustrated. Since PW 14 Prithvi Singh found that information reliable, therefore, he reduced it into writing under the provisions of Sec. 42 (1) of the NDPS Act and the copy of it Ex. P/22 was sent by him to SP as well as to Dy. SP, Chittorgarh through PW 7 Subhash Chandra. PW 14 Prithvi Singh also got registered that information in the Rojnamcha Ex. P/27. THEreafter, PW 14 Prithvi Singh along with raiding party consisting of PW 1 Himmat Singh, PW 10 Kamal Singh, PW 13 Janak Singh, PW 12 Dadu Singh, PW 6 Manilal and others proceeded at about 8. 15 PM towards the spot in a Government Jeep and reached the place known as "mataji Ki Pandoli" at about 8. 30 PM and made Nakabandi and they also took two motbirs, namely, Narendra Kumar (PW 5) and Shambhu Singh (PW 2 ). THEreafter, they saw two persons coming on cycle and they were recognized by PW 1 Himmat Singh as accused appellant and after calling them, they were asked to stop, but the person named as Shankar ran away from the scene after leaving his cycle, but another accused person was caught red-handed on the spot and on being asked, he told his name as Parthu (present accused appellant No. 2) and there was a bag lying on the handle of his cycle and he was informed about the secret information of the mukhbir that he had contraband opium and he was given a notice Ex. P/4 under Sec. 50 of the NDPS Act by PW 14 Prithvi Singh asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, he gave his consent that search could be made by PW 14 Prithvi Singh and, thereafter, accused appellant No. 2 Parthu was searched and on search, a bag was recovered and it was opened and polythene bag containing black-brawn colour liquid substance was found in it and on being tasted, it was assessed that it was opium ad on being asked, accused appellant No. 2 Parthu told that he has no valid license to keep that opium. THEreafter, it was weighed and its weight was found to be 1 kg. , out of which, two samples of 30 grms. each were taken and sealed separately on the spot and marked as A/1 and A/2 and rest opium was also sealed on the spot separately and marked as A. THEreafter, the bag, which was lying on the cycle of accused appellant No. 1 Shankar, who ran away after leaving it, was opened and in it, polythene bag containing black-brown colour liquid substance was found and on being tasted it was assessed that it was opium. It was weighed and its weight was found to be 500 grms. , out of which two samples of 30 grms. each were taken and sealed separately on the spot and marked as B/1 and B/2 and rest opium was also sealed on the spot separately and marked as B. PW 14 Prithvi Singh prepared the fard of search and seizure on the spot and the same is Ex. P/3. THE fard of specimen impression of seal is Ex. P/5. THE cycles of both accused appellants Shankar and Parthu were seized through fards Ex. P/6 and Ex. P/7 respectively. THE accused appellant No. 2 Parthu was arrested on the spot through arrest memo Ex. P/2, while accused appellant No. 1 Shankar was arrested on 17. 10. 1996 through arrest memo Ex. P/17. A detailed report to make compliance of Sec. 57 of the N. D. P. S. Act was sent by PW 14 Prithvi Singh to the higher officers and the same is Ex. P/23. PW. 14 Prithvi Singh chalked out regular FIR Ex. P/25. THE seized articles and samples were handed over by PW 14 Prithvi Singh to Malkhana Incharge PW 9 Chain Singh, who deposited the same in the malkhana and made entries in the Malkhana Register Ex. P/20. THEreafter, vide letter Ex. P/11, two samples were sent to S. P. Office, Chittorgarh through PW 7 Subhash Chandra for sending them to F. S. L. for chemical analysis. THEreafter, PW 15 Jamnalal, who was working at the relevant time in the SP Officer, Chittorgarh, gave a fresh forwarding letter Ex. P/12 addressed to F. S. L. , Jaipur alongwith two samples to PW 7 addressed to FSL, Jaipur alongwith two samples to PW 7 Subhash Chandra, who deposited the same in the F. S. L. , Jaipur and obtained receipt Ex. P/13. THE F. S. L. report is Ex. P/29, where it was reported that the sample contained in the packet marked A/1 and B/1 gave positive tests for the presence of Chief constituents of coagulated juice of opium poppy having 5. 60% (Six point one eight percent) Morphine respectively. After usual investigation, police filed challan in the Court against the accused appellants. On 28. 2. 1997, the learned Special Judge, NDPS Cases, Chittorgarh framed charges for the offence under Sec. 8/18 of the NDPS Act against the present accused appellants, but on 26. 11. 1998, amended charge was framed against accused appellant No. 1 Shanker. THE charges were read over and explained to the accused appellants. THEy denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. THEreafter, statements of the accused appellants under Section 313 Cr. P. C. were recorded. In defence, no evidence was produced by the accused appellants. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 16. 1. 1999 convicted and sentenced the accused appellants in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under Sec. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 16. 1. 1999 passed by the learned Special Judge, NDPS Cases, Chittorgarh, this appeal has been filed by the accused appellants. In this appeal, the learned counsel appearing for the accused appellants has made the following submissions:- 1. That after receiving the secret information from mukhbir, PW 14 Prithvi Singh has not recorded the grounds of his belief that it was not possible for him to obtain a search warrant or authorisation, as the search and thus, compliance of mandatory provision of Sec. 42 (1) of the NDPS Act has not been made in this case and thus, the whole trial stands vitiated and the accused appellants are entitled to acquittal. 2. That prosecution has also not produced reliable link evidence to show that the articles and samples were kept in proper custody and proper form and the samples were not tampered with after they were taken and till they reached the hands of the Chemical Examiner and for that, one of the grounds taken by the learned counsel for the accused appellants is that specimen impression of the seal was not forwarded to the FSL alongwith the samples and furthermore, the samples of 30 grms. each were taken on the spot, but the FSL report shows that weight of the samples was 24 grms. and 23 grms. alongwith the polythene packet and in these circumstances, conclusion can be drawn that the samples were tampered with and the benefit of doubt be given to the accused appellants. Hence, it was prayed that this appeal be allowed and the accused appellants be acquitted of the charges framed against them. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Chittorgarh. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. Before proceeding further, it may be stated here that so far as they recovery of opium from the accused appellant No. 2 Parthu and from the bag of accused appellant No. 1 Shankar is concerned, the same is well proved from the statements of PW 14 Prithvi Singh, PW 1 Himmat Singh, PW 10 Kamal Singh, PW 13 Janak Singh, PW 12 Dadu Singh and PW 6 Manilal. Point No. 1
(3.) THIS point relates to Sec. 42 (1) of the NDPS Act and to see whether compliance of Sec. 42 (1) of the NDPS Act has been made in this case or not, the evidence and the documents produced by the prosecution have to be looked into. Before proceeding further, it may be stated here that the provisions of Sec. 42 of Sec. 42 of the NDPS Act are mandatory in nature. For that the decision 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. Pw 14 Prithvi Singh has categorically stated in his statement that as soon as he received the secret information from mukhbir, he reduced it into writing and, thereafter, he sent copy of it to SP and Dy. SP, Chittorgarh and Ex. P/22 is the carbon copy of that information, which he reduced into writing and apart from that, he also entered that information in Rojnamcha Ex. P/27. In cross examination, this witness has admitted that the original copy of Ex. P/22 was sent to Dy. SP and thee is no dispute that Ex. P/22 is the carbon copy of the information, which was reduced into writing by Pw 14 Prithvi Singh. ;