IMPORTANT POINT
Non-compliance of mandatory provisions of sections 42, 55 and 57 of NDPS Act is fatal to the prosecution case.

JUDGMENT

N.K. Jain, J. - This criminal appeal is directed against the judgment of learned Sessions Judge, Balotra dt. 1.2.1992 whereby he has convicted the appellant u/s. 17 read with Section 18 of the N.U.P.S. Act, 1985 and sentenced him to 10 years R.I. with a fine of Rs. one Lac on each count and in default of payment of fine to further undergo 2-1/2 years R.I.

2. The prosecution case in brief is that at 7.30 P.M. on 29.4.1991 on receiving a secret information, P.W. 9 Talib Hussain, Dy. Superintendent of Police, Balotra accompanied by P.W. 10 Bhanwar Singh, S.H.O. with other personnels viz. P.W. 3 Hamsha Khan; P.W. 4 Mula Ram, Chutra Ram and Narsingh reached P.S. Mandali where P.W. 10 Bhanwar Singh and some other police officers joined them and thereafter they reached village Kalau situated at border and sealed the border but could not recover any goods. It is alleged, on 30.4.1991 at 5.30 A.M. when the police party was patrolling the border, the Dy. S.P. got an information that one Bala Ram, s/o. Kirpa Ram is dealing in opium illegally, they reached at Dhani of Bala Ram at 6.30 A.M: and recovered a polythene bag full of catechu substance weighing 1 Kg. which 00' smelling was found to be opium. In the presence of two motbirs a sample of 30 gms. of milk of opium was sealed separately and rest of milk weighing 970 gms. was sealed in another packet. On search of 'Jhumpa of Kitchen' of the accused opium weighing 4 Kg. was also recovered from a 'Urea bag'. A sample of 30 gms. was taken and sealed and rest of opium was sealed in a different packet. Recovery memo Ex. P.1 and Site Plan were prepared by the Dy. Superintendent of Police. The accused-appellant was arrested on 30.4.1991 vide Ex. P. 3. On the basis of recovery, a report Ex. P. 9 was prepared by the Dy. S.P. on the basis of which S.H.O. Bhanwar Singh lodged an F.I.R Ex. P. 10 u/ss. 17 and 18 of the N.U.P.S. Act. Dy. S.P. and S.H.O. Mandali Bhanwar Singh conducted investigation. A copy of Jamabandi Ex. P. 24 and map Ex. P. 25 were obtained from P.W. 11 Durgaram Patwari. After due investigation, a challan was filed against the accused u/ss. 17 and 18 and the charges were framed accordingly under the aforesaid sections. The prosecution in support of its case examined P.W. 1 Girdhari Singh, P.W. 2 Ganpat Singh, P.W. 3 Hamshkhan, P.W. 4 Mularam, P.W. 5 Shyamlal, P.W. 6 Mehta Ram, P.W. 7 Chunnilal, P.W. 8 Kana Ram, P.W. 9 Talib Hussain, P.W. 10 Bhanwar Singh, S.H.O. and P.W. 11 Durga Ram Patwari. The accused appellant in his statement u/s. 313 Cr. P.C. denied recovery of opium from his possession, and stated that he went to call his sister and brother-in-law at Dhani of his father which is situated at a distance of 2-3 Kms. from his village Kalau Sasan where he resides and has been falsely implicated. The accused appellant did not produce any witness in his defence. The learned Sessions Judge after considering the material on record and concluding the trial, convicted the accused u/ss. 17 and 18 of the N.U.P.S. Act and sentenced him to 10 years R.I. with a fine of Rs. One Lac and in default of payment of fine to undergo further 2-1/2 years R.I. on each count. Hence, this appeal.

3. Mr. Singhvi, learned counsel for the petitioner has assailed the Judgment passed by the learned court below on the ground that mandatory provisions of the N.U.P.S. Act have not been followed. Therefore, the conviction passed on the appellant cannot he maintained and the same may be set aside.

4. Smt. Chandra Lekha, learned Public Prosecutor has supported the judgment and submitted that the appellant has been rightly convicted and sentenced.

5. I have heard learned counsel for the parties and perused the record carefully as also the relevant case law.

Mr. Singhvi, has firstly contended that the prosecution has not complied with the Section 42 of the N.U.P.S. Act which is mandatory, which provides as under:

"Section 42 Power of entry, search, seizure and arrest without warrant or authorisation: - (1)