GOPAL LAL GUPTA,J. - (1.) THESE three appeals are directed against the judgment and order of the learned Special Judge, NDPS Cases, Jodhpur dated 15-4-93 whereby he convicted Noor Khan and Babu Khan under Section 8 read with Section 22 of the NDPS Act and sentenced each of them to undergo rigorous imprisonment for ten years and pay a fine of Rs. one lack and ordered the confiscation of the two trucks No. RRQ 1365 and RRN 6651. Noor Khan and Babu Khan have, preferred appeal against their conviction and Fakir Khan and Ishu Khan have filed appeals against the order of confiscation of the trucks. Since all these three appeals arise out of the same judg­ment, they have been heard together and are being dispssed of by this judgment.
(2.) THE facts in brief, are that on 11-6-87 at about 2.45 p. m. Shri Ratanlal, Dy. S. P., CID (SB), Jodhpur, received a message from 'Mukhbir' that a truck carrying heroin was coming from Phajodi side. On this information he rushed up to the Police Station Udaimandir and informed Damodar Vyas, SHO. The police party consisting of Ratan­lal, Dy. S. P., Damodarlal, SHO, Girdhari, CI, Pratapram, CI, Rakesh Puri Narain Singh, ASI, Manohar Ram, HC and Mota Ram, HC went to the Paota Crossing, Jodhpur. At about 3,45 p. m. they noticed that Truck RRQ 1365 coming from Mahamandir side was going on the Raika Bag over bridge. The police party followed the truck and asked the driver to stop it. Noor Khan was driving the truck. There was lime (building material) in the truck. It was taken to the Police Station Udaimandir where lime was unloaded. It was found that there were four gunny bags lying under the lime in which there were packets. All the four gunny bags were checked one by one and it was found that the bags contained packets having heroin therein. In all 187 packets were found in the four bags and the total weight of the heroin found therein was 198.75 kgs. The police after taking representative samples from each of the packet and also the control samples sealed the representative and control samples and placed the remaining packets in the same gunny bags and sealed them. The Rojnamcha entry Ex. P/19 was recorded and case registered. The police arrested Noor Khan. On his interrogation, the police arrested Babu Khan. On the information of Babu Khan, the police recovered two gunny bags having same type of packets from a hut on 13-6-87. The police took out representative samples and control samples from the packets found in the gunny bags and sealed them and the remaining property was also sealed. During investigation, the police interrogated one Mohamadiya and later on arrested him. After the completion of the investigation, the challan was submitted against the appellants and Mohamadiya. The prosecution, examined as many as 20 witnesses. Accused in their statements denied having committed any offence. After hearing the arguments of the learned Counsel for the accused and the learned Public Prosecutor, the learned trial Court acquitted Mohamadiya but convicted Noor Khan and Babu Khan under Section 22 read with Section 8 of the NDPS Act and sentenced them as above. The two trucks which were used in the transportation of the heroin were also ordered to be confiscated. I have heard the arguments of Mr. Choudhary, learned Counsel for the appellants and Mr. C. R. Jakhar, learned Public Prosecutor appearing for the State and perused the record of the case.
(3.) THE contention of the learned Counsel for the appellants Noor Khan and Babu Khan was three-fold (i) Provisions of Section 42 of the NDPS Act are man­datory in nature and since they have not been complied with, the conviction is vitiated, (ii) The prosecution has not produced link evidence to prove that the samples remained iritact from the time of the recovery till they reached the FSL and therefore, the appellants are entitled to acquittal, and (iii) The alleged recovery of two bags of the instance of Babu Khan was from an open place accessible to all and sundry and therefore, no inference against Babu Khan could be drawn.;