The presence of diacetylmorphine in the contraband establishes it as an opium derivative, and the percentage of purity of diacetylmorphine is immaterial for invoking the provisions of the NDPS Act.

H.R. Panwar, J.-This criminal jail appeal is directed against the Judgment and order dated 06.08.2003 passed by the Special Judge, N.D.P.S. Cases, Pratapgarh, district Chittorgarh (for short, “the trial Court” hereinafter) in Sessions Case No. 10/2002, whereby the trial Court convicted the appellant for the offence under Section 8 read with Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act” hereinafter) and sentenced to undergo ten years rigorous imprisonment and a fine of Rs. One lac and in default of payment of fine further to undergo 2 ½ years rigorous imprisonment. Aggrieved by the Judgment and order impugned the appellant has filed the instant jail appeal.

2. The facts of the case, to the extent, they are relevant and necessary for the decision of this appeal, are that on 212.2001 at about 9:00 PM, PW. 14 Bhanwar Singh, Station House Officer, Police Station, Pratapgarh, received a secret information that the appellant is coming to Basad bus stand possessing brown sugar. The secret information was reduced to writing in the Roznamcha and sent to the higher officer. He, alongwith other police officials, started from the police station at 9:10 PM, called the Motbirs, took their consent and at 9:50 PM, while holding Nakabandi, noticed a person coming from Basad side. On seeing the police party, that person started running but apprehended. On being asked, he disclosed his name as Akbar Khan, the appellant. He was served with a notice under Section 50 of the NDPS Act giving him an option to be searched by the nearest Magistrate or a gazetted officer or by the concerned Station House Officer. The appellant consented to be searched by the concerned SHO. On search being carried out, a plastic bag containing 1.100 kg of brown sugar (heroin) was found tied on the waist of the appellant under the shirt which the appellant was putting on. Two samples of 30 grams each were taken, sealed and the remaining brown sugar (heroin) was also sealed on the spot. The appellant was arrested and after usual investigation, the police filed Challan against the appellant for the offence noticed above.

3. The appellant was charged with the aforesaid offence, to which he denied the charge and claimed to be tried. The prosecution adduced evidence by producing as many as 14 witnesses and the documents Exhibit P-1 to Exhibit P-23. The appellant made statement under Section 313 CrPC and denied the allegation. The trial Court, on appreciation of the evidence, came to the conclusion that the prosecution has proved the case against the appellant beyond reasonable doubt and accordingly he was convicted and sentenced as noticed above. Hence, this appeal.

4. I have heard learned Amicus Curiae appearing for the appellant and the Public Prosecutor for the State. Carefully gone through the Judgment and order impugned as also the record of the trial Court. I have carefully scanned, scrutinized and evaluated the evidence on record.

5. PW. 14 Bhanwar Singh, the Seizure Officer and the SHO, Police Station Pratapgarh, stated that on 212.2001 at about 9:00 PM, he received a secret information that the appellant, who is trading in brown-sugar, is coming towards Basad bus stand carrying brown-sugar. The information was reliable and it was reduced to writing in the Roznamcha. The secret information was sent to the higher officer through PW. 4 Tara Chand Constable. He, alongwith the police officials, went from the police station in the Government jeep with investigation kit to the place of Nakabandi. At about 9:15 PM, they noticed a person coming from Basad side, who on seeing the police party started running but was surrounded by the police and apprehended. On being inquired, he disclosed his name as Akbar Khan S/o Peer Khan. The name of the appellant tallied with the name disclosed in the secret information received by him. The appellant was served with a notice under Section 50 of the NDPS Act and was

given option