SHARMA, J. - (1.) THIS appeal is directed against the judgment dated 27. 10. 99 passed by the Special Judge NDPS Act Cases and Sessions Judge, Dholpur, by which he has convicted accused appellant Ram Bharosi for offence u/sec. 8/18 and 8/20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and sentenced him to undergo ten years rigorous imprisonment on each count and to pay of fine of Rs. one lac each, in default of payment of fine, to further undergo two years rigorous imprisonment each.
(2.) THE prosecution story unfolded during trial was that on 15. 8. 98 PW. 11 Sarad Choudhary, Dy. Superintendent of Police, Dholpur received telephonic information from the S. H. O. , Police Station, Kotwali that one Ram Bharosi by caste Goswami, R/o Donari is taking with him opium and Charas on a Rajdoot motor cycle, having no registration number on it, for the purposes of selling the same to a drugs' contractor, which he recorded in Ex. P-17 and telephonically informed the Superintendent of Police. He also informed him in writing vide Ex. P-18. THEreafter, he left for the Police Station, Kotwali along with Head Constable Jal Singh and two Constables Balvinder Singh and Hari Singh, where he discussed with Shri Jagan Lal Meena, SHO about the said information and having found the information trustworthy he along with police party proceeded to Bhamtipura Tiraha in a Government Gypsy. He found one person sitting on Rajdoot Motor-cycle having no registration number on it and busy in talking with some other person, who on seeking the police, managed to escape from there, but he caught hold of the person sitting on the motor-cycle. He disclosed his identify that he is Dy. S. P. Sharad Chaudhary, C. O. , Dholpur and is a Gazetted Officer. THEreafter, he asked the accused vide notice Ex. P. 20 as to whether he wants to get the search conducted by the Dy. S. P. himself who is a Gazetted Officer or by a Magistrate or in presence of a Magistrate. THE accused consented in writing that he (Dy. S. P.) himself may take search in the absence of Magistrate. THEreafter, he conducted search of accused vide Ex. P. 11. On search he found opium in 35 small paper pockets from the left pocket and charas in 50 small papers packets from right pocket of his shirt. He prepared seizure memo Ex. P. 12, arrested the accused vide arrest memo Ex. P. 13 seized the motor- cycle vide memo Ex. p. 14. On asking for licence, the accused replied that he has no licence. He got the contraband articles weighed and the opium and charas were weighing 145 grams and 225 grams respectively. THE samples were taken. THE samples and the remaining contraband were sealed. After completion of above formalities, a case was registered vide FIR No. 267/98 for offence under Sections 8/16 and 8/20 of the NDPS Act. During investigation the police recorded the statements of witnesses u/sec. 161 Cr. P. C. and sent the samples to the Forensic Science Laboratory for chemical examination. On chemical examination, the sample contained in the packet marked A/1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2. 18% morphine and on microscopic and chemical examination the another sample in packed B1 was found to be charas. After the investigation was over, the police submitted a charge sheet against the accused appellant in the Court of Special Judge, NDPS Act Cases, Dholpur. The learned trial court, on the basis of material on record and after hearing the arguments of counsel for the parties framed charges against the accused for offence u/sec. 8/18 and 8/20 of the NDPS Act. The charges were read over and explained to the accused, to which he denied and claimed trial. During trial, the prosecution in support of its case, examined as many as 11 witnesses and also exhibited some documents viz. , Ex. P. 1 to Ex. P. 20. Thereafter the accused was examined u/sec. 313 Cr. P. C. He did not examine any witness in his defence. After completion of trial, the learned Special Judge, NDPS Act Cases found the accused guilty of the offences charged with and accordingly convicted and sentenced him as aforesaid. Hence, the present appeal.
(3.) I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and carefully examined the impugned judgment and the record of the trial Court. The main thrust of the arguments of Mr. Anurag Sharma, learned counsel representing the accused appellant is that the trial court has seriously erred in placing reliance on the recovery of opium and charas from the possession of accused appellant since the mandatory requirements of the provisions of Sec. 42 and 50 of the NDPS Act had not at all been followed by the Police Officer before conducting search, which led to the seizure of contraband articles. He vehemently argued that the appellant was required to be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate as required under the provisions of Sec. 50 of the NDPS Act. On the other hand, learned Public Prosecutor has supported the findings arrived at by the learned trial court in holding the accused appellant guilty of the offences charged with and has submitted that the judgment under appeal calls for no interfere and it deserves to be maintained. ;