PATHAK, J. - (1.) THIS is a State appeal under Section 378 (iii) & (i), Crpc against the judgment and order dated 18. 11. 1987 passed by learned Additional District and Sessions Judge, Barmer in Criminal Case No. 89/1987 (State vs. Rahim), whereby the accused respondent has been acquitted of the charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as `the NDPS Act' ).
(2.) BRIEFLY stated, the facts of the case are that on 14. 11. 1986 PW. 11 Chandan Singh, SHO, Police Station Gadra Road, Barmer received as secret information while he was on patrolling duty that accused was having opium in his house. The search of the house was made and opium was recovered from a bag in presence of motbir witness. Out of recovered opium, which was 3 Kgs. , a sample of 30 gms. was taken out. The sample was seized and sealed and remaining 2970 gms. opium was also seized and sealed separately. The accused was arrested. The sample was sent for chemical examination. On examination, it was found to have contained opium. The FSL Report in Exhibit-P/10. After usual investigation, challan was submitted in the Court of Munsif and Judicial Magistrate, Barmer. After committal, it came for trial before learned Additional District and Sessions Judge. Barmer, who framed the charges against the accused person under Section 18 of the NDPS Act. The accused denied the charges and claimed trial. The prosecution in support of its case examined 12 witnesses and tendered 12 documents in evidence. After close of the prosecution evidence, the accused in the statement under Section 313, Crpc stated that he has been falsely implicated in the case. The Trial Court after hearing both sides, acquitted the accused of the charges framed against him under Section 18 of the NDPS Act vide its judgment and order dated 18. 11. 1987. Aggrieved by the judgment and order dated 18. 11. 1987 passed by learned Additional District & Sessions Judge, Barmer, the present appeal has been filed by the State. I have heard learned Public Prosecutor for the State and learned Counsel appearing for the accused respondent and carefully perused the material available on the record. Learned Public Prosecutor has contended that the Trial Court has not property appreciated the evidence led by the prosecution. It has next been contended that recovery coupled with FSL report clearly proves the case of the prosecution. It has further been contended that provisions of Section 42 of the NDPS Act provide that when search is made after sunrise and before sunset no warrant is required to be obtained and it is only required when search is made after sunset and before sunrise.
(3.) ON the other hand, learned counsel for accused respondent has argued that in the present case, no compliance of Section 42 and 57 of the NDPS Act, has been made. It has next been contended that no linking evidence has been produced to complete the chain in relation to the recovered articles kept intact in Malkana till it reached to the Forensic Science Laboratory, Jaipur. In the last, it has been contended that the prosecution has not proved that place from where the alleged recovery has been made, was exclusive in possession of the accused. I have carefully considered the rival submissions made before me. In the present case, perusal of statement of PW. 11 Chandan Singh shows that a secret information was received through Mukhbir and on the information of Mukhbir while he was on patrolling duty in `salam Singh's Basti, SHO, Jalam Singh and Ranchore Singh met him and informed that accused has opium in his house. This witness nowhere stated that after receiving the above information, he tried to obtain search warrant as provided under the provisions of Section 42 of the NDPS Act. It further appears that in the instant case after arresting the accused respondent and recovery of contraband materials form the possession of the accused the information was not sent to the superior officers. ;