JUDGMENT

Ram Prasanna Sharma, J. - Shri Rahul K Mishra, Advocate has been engaged for arguing the case on behalf of the appellant. Despite repeated calls, he has not appeared when the case is called for hearing, therefore, Shri Manoj Mishra, Advocate, who is present in the Court has been appointed as Amicus Curiae to argue the case on behalf of the appellant.

2. The appeal is directed against judgment dated 25.6.2015 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act 1985'), Ambikapur, Distt. Surguja (Chhattisgarh) in Special Criminal Case No. 24/2012 wherein the said Court convicted the appellant for commission of offence under Section 20(b) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- with default stipulations.

3. As per the version of the prosecution, on 08.9.2012, Sub Inspector RK Nishad, Police Station Ambikapur received an information that the appellant is doing the business of brown sugar, he went to village Gadwa for purchasing Brown Sugar and was returning on 08.9.2012 in Popular bus. On the basis of the information, Sub Inspector RK Nishad along with Police personnel reached to the spot and recovered 12.690 gm Brown Sugar from the appellant. After due compliance of the legal provisions and investigation, the appellant was charge sheeted. After completion of the trial, he was convicted as mentioned above.

4. Learned counsel for the appellant submits as under:

(i) The appellant was not given any option as to whether he desires to be searched in the presence of Gazetted Officer or Magistrate as envisaged under Section 50 of the Act, 1985, therefore, the same vitiates his conviction.

(ii) Independent witnesses namely Ramesh Kumar Soni (PW-1) and Pradeep Kumar Soni (PW-3) have not supported the case of the prosecution.

(iii) The Investigating officer was not having any search warrant and there was material contradictions and omissions in the statement of the investigating officer, therefore, conviction of the appellant is not sustainable in the eye of the law.

(iv) The trial Court has not evaluated the evidence properly, therefore, conviction recorded by the trial Court is not sustainable.

5. On the other hand, learned counsel for the State while supporting the impugned judgment would submit that all the provisions of the Act are duly complied with and seized article was kept in safe custody in Malkhana and sample of the article was deposited at Forensic Science Laboratory and as per the report of the laboratory (Ex-P/25) the article is found as diacetylmorphine, therefore, finding of the trial Court is just and proper which invokes no interference.

6. I have heard learned counsel for the parties and perused the judgment impugned.

7. Now the question for consideration before this Court is whether the appellant was in possession of diacetylmorphine on the date of incident. As per the version of Sub Inspector RK Nishad (PW-8), he received information that the appellant is engaged in selling diacetylmorphine (Brown Sugar), he had gone to village Gadwa for purchasing the same and returning on 08.9.2012 in Popular bus. As per the version of this witness, he recorded the information as per Ex-P/13 and the information was sent to City Superintendent of Police Ambikapur and received acknowledgment as per Ex-P/14. As per the version of this witness, he called two independent witnesses namely Anil Soni and Fahamuddin Ansari by giving notice Ex-P/1 and P/16 and thereafter he rushed to the spot i.e. Ramanujganj Road with police personnel and independent witnesses. There he was waiting for Popular Bus and when it reached at about 1.00 pm, he asked to stop the bus and enquired with the appellant , he gave him notice that he can be searched by the Magistrate or City Superintendent of Police. After receiving the notice under Section 50 of the Act, 1985, the appellant gave consent to be searched by this officer. The