IMPORTANT POINT
When accused were carrying narcotic and came across police party by chance and it was a chance recovery, non compliance of Section 50 of NDPS Act would not vitiate prosecution case.

JUDGMENT

Shambhoo Singh, J. - This appeal is directed by the accused against the judgment and order dated 17.2-1998 passed by Sessions Judge, Mandsaur in S.T. No. 6/88 whereby the appellant was convicted under Sections 8/18 of the N.D.P.S. Act, 1985 (for short ‘the Act') and sentenced to 10 years RI.

2. The prosecution case, in brief, was that on 5-7-1987 at 12.00 a.m. P.W. 5 B.S. Malviya. Sub-Inspector P.S. Maihargarh, received information that in the jungle of village Sujanpura. Dhokri and, Ambab, on the well of Ratan Singh, opium will be collected and prepared and will be transported in a jeep before morning, this information was noted down in Roznamcha Sanha Ex. P.5 and thereafter Sub-Inspector Malviya called P.W. 2 Mangilal, watchman and P.W. 3 Kamal Singh. N.C.C. Homeguard and gave them this information and proceeded for the place from where the opium was to be transported. Sub-Inspector Malviya took S.P. Tiwari. Sub-Inspector, out-post Pipliya Mandi and reached the road at 3 a.m. in the night. At 3.30 a.m. two persons came on a horse with a gunny bag, from the side of village Ambab and Semli. S.I. Malviya flashed torch seeing which the rider accelerated the speed. The appellant Ishwar Singh threw the bag and jumped from the horse. He ran but was chased and apprehended. The bag was checked, it was found containing .30 kgs. and 410 gms. of opium. Thereafter they went to the well of Ratansingh, seeing them 3-4 persons ran away from the well. They found there 200 gms. of opium. Thereafter, Sub-Inspector Malviya seized this opium from Ratansingh and prepared samples. One sample was sent to Government. Opium and Alkaloid Works, Neemuch for chemical examination. The chemical examiner to the Government of India, opined vide report Ex. P.10 that the samples were found to be opium by qualitative and quantities analysis. After completion of investigation challan was filed. The appellant pleaded not guilty and false implication. The learned Sessions Judge convicted and sentenced the appellant as stated above. Hence, this appeal.

3. Mr. C.R. Joshi, LC for the appellant, submitted that the learned Sessions Judge committed error in holding that the opium was seized from the possession of the appellant. He submitted that the compliance of Section 50 of the N.D.P.S. Act was not made therefore, the appellant was entitled to acquittal. He further argued that the report of chemical examiner of Government. Opium and Alkaloid Works, Neemuch, was not admissible under Section 293 of the Cr. P.C. and he has not been examined, therefore, it has not been proved that the sample was opium. Shri Verma, Dy. G.A submitted that from the evidence of Sub-Inspector of Police, Malviya and independent witness Kamalsingh, it has been proved that the bag was on the back of the horse and the appellant threw the bag and jumped therefrom, therefore, the opium was in possession of the appellant. He further submitted that the report Ex. P.10 was prepared by chemical examiner to Government of India, therefore, it was admissible under Section 293, Cr. P.C. without formal proof. At the time of exhibition of this report Ex. P.10 no objection was raised by the Counsel for the accused nor was any prayer made for summoning the chemical examiner, therefore now this report cannot be challenged.

4. I considered the arguments advanced by Counsel for both sides and perused the record. It has come in the evidence of Malviya (P.W. 5) that on 5-7-1987 at 12.00 a.m. in the night, he received information that opium was to be collected and prepared on the well of Ratanlal in the jungle of Sujanpura. He entered the information in Roznamcha Sanha No. 161, Ex. P. 1 and sent the copy of it to his senior officer and thereafter called independent witnesses Mangilal and Kamalsingh and narrated them the information and prepared Panchanama Ex. P.6. Thereafter Suri Malviya, along with these two witnesses, two constables and Sub-Inspector S.P. Tiwari, out-post Pipliya Mandi reached the jungle