JAIN, J. - (1.) THIS Jail appeal on behalf of accused appellant Pappu Son of Gulab Chand, is directed against the judgment and order dated 8th August 2002 of the learned Special Judge (N. D. P. S. Act), Chhabra, whereby the accused appellant was convicted and sentenced under Section 8/18 of the N. D. P. S. Act, 1985 (for short, `the Act') to ten years rigorous imprisonment and a fine of Rs. 1,00,000/-; in default of payment of fine, to further additional undergo six months' rigorous imprisonment.
(2.) BRIEF facts of the case relevant for disposal of this appeal are that on 10. 4. 1997, PW-8 Jai Narain Sher, Deputy Superintendent of Police, Chhabra, lodged First Information Report at Police Station Chhipa Barod, wherein it was alleged that accused Pappu S/o Gulab Chand was accused and arrested in case No. 128/97 under Section 454, 380, IPC, by PW-15 Jai Lal Verma, S. H. O. , Police Station Chhipa Barod and when he was in custody he gave an information under Section 27 of the Indian Evidence Act to PW-15 Jai Lal Verma, S. H. O. , that the stolen opium of his share has been hidden by him in his field. The details of field/place were also given. The said information was reduced in writing. The information was sent to the Superintendent of Police, Baran. The accused was taken to his field. Thereafter the accused was apprised of his right about search either in presence of Magistrate or Gazetted Officer. Two independent witnesses were called upon and thereafter the contraband `opium' weighing 4kg. 300 gram was recovered by digging the particular place of field as per information given by accused, in polythene bag and the net weigh of the contraband was 4kg. 250 gram. Two samples of 50 gram each were taken and sealed. The remaining contraband weighing 4kg. 150 gram was sealed separately. The case was investigated and on completion of investigation a charge sheet was filed against the accused appellant under Section 8/18 of the Act. The learned Trial Court framed charge against the accused appellant for the offence under Section 8/18 of the Act. The accused denied the charge and claimed to be tried. The prosecution examined 17 witnesses. Thereafter statement of accused was recorded under Section 313 Cr. P. C. No evidence was led in defence. The learned Trial Court after hearing both the parties, convicted and sentenced the accused appellant as stated above. The learned Amicus Curiae, appearing on behalf of the accused appellant, contended that there is violation of Section 42 and 50 of the Act in the present case which are mandatory provisions. It was contended that the notice given to the accused appellant under Section 50 of the Act was not in accordance with the provisions of the law. It was also contended that there was no secret information about contraband in the present case and the so called information was reduced in writing on the basis of the information given by the accused himself, therefore, the action of the respondents cannot be said to be in accordance with Section 42 of the Act. It was also contended that from the recovery memo it is clear that two samples of 50 gram each were taken and sealed and sent to FSL for examination whereas Exhibit P-12, FSL Report, shows that sample weighing 43 gram was received in the laboratory, therefore, it cannot be said that the sample which was seized in the case was sent to the FSL for examination. This fact creates doubt on the prosecution case. The learned counsel for the accused appellant referred to the decision of this Court in Mangi Lal vs. State of Rajasthan, S. B. Criminal Jail Appeal No. 45/96, decided on 24. 3. 1998, Sushil Sharma vs. State of Rajasthan, 2000 Cr. L. R. (Raj.) 549 and Biram vs. State of Rajasthan, S. B. Criminal Jail Appeal No. 25/2000, decided on 15. 5. 2001. Learned counsel for the appellant further contended that at the time of recording information the accused was arrested in Case No. 128/97 under Section 454, 380 IPC and a charge-sheet was filed against him in the said case. The accused was charged for the offence under Sections 454, 380 IPC. The said case was registered as Criminal Case No. 765/2003 (240/97) and it was tried by the Court of Judicial Magistrate, 1st Class, Chhipa Barod, District Baran. The learned Judicial Magistrate, vide his judgment dated 23. 8. 2005, observed that the recovery of contraband (theft article) is not proved beyond reasonable doubt and, therefore, acquitted the accused appellant as well as other co accused persons. Therefore, it was contended that when the accused has been acquitted in Case No. 128/97 registered under Section 454, 380 IPC wherein the theft article was nothing but the contraband, which is subject matter of present case and the recovery of contraband was found to be doubtful in the said case itself then the accused appellant cannot and should not be convicted in the present case on the basis of the recovery of same contraband article for which the Judicial Magistrate has observed that the recovery of the same is doubtful, and acquitted the accused of the charge under Sections 454, 380 IPC. A certified copy of the judgment dated 23. 8. 2005 passed by the Judicial Magistrate, 1st Class, Chhipa Barod, District Baran, in Criminal Case No. 765/2003 (240/97) has been produced before this court during the course of arguments and the same is marked as Court Document No. 1, (C-1 ).
(3.) THE learned Public Prosecutor, on the other hand, contended that the recovery of contraband in the present case was made from public place, therefore, the provisions of Section 50 of the Act are not applicable in the present case. It was further contended that variance in weighment of samples of the contraband as stated by the learned counsel for the appellant is not prejudicial in any manner to the accused, therefore, the accused is not entitled to any benefit. He contended that the judgment of the learned Trial Court is based on oral and documentary evidence and the conviction and sentence of the accused appellant is quite legal and in accordance with the provisions of law. I have considered the rival submissions of the learned counsel for both the parties and minutely scanned the impugned judgment and the record of the Trial Court. In Mangi Lal's case (supra), this Court gave the benefit of doubt to the accused on the basis of variance in the weighment of sample seized and sent to the FSL. The same benefit was given by this Court in Sushil Sharma's and Biram's cases (supra ). ;