The court clarified that the compliance of Section 42(2) of the N.D.P.S. Act is not required when the seizure is made from a public place, as opposed to a conveyance, building, or enclosed place.

>G. L. GUPTA, J.

( 1 ) ASHOK Kumar has preferred this appeal against the judgment and order dated 6-6-1996 passed by learned Special Judge, Hunumangarh whereby he convicted accused appellant under Section 8/15 of the N. D. P. S. Act and sentenced him to undergo 10 years R. I. and pay a fine of Rs. one lakh, in default to undergo six months S. I.

( 2 ) THE prosecution case is that on 16-3-1993 at 5. 15 p. m. Richhpal Singh, S. H. O. , P. S. Sangaria receiving an information from mukhbir that a man, wearing cream colour trouser and white sweater was carrying two bags, full of poppy powder, recorded the same, and after informing his superiors by wireless message, proceeded towards Tibi Bus Stand along with police party. He accosted the man (Ashok Kumar accused) moving on the kacha road. After introducing himself Richhpal Singh told that he wanted to search him and if he wanted to be searched in the presence of Magistrate or the Gazetted Officer he would take there. On telling by accused Ashok Kumar, that he could himself search him then and here, Richhpal Singh made a search of his bags. He found that there was poppy powder in the bags. He took out samples from the bags in the presence of the motbirs, and sealed them. He arrested the accused. Thereafter, a case was registered at Police Station Sardulsahar. The police obtaining the report from the Forensic Scheme Laboratory wherein it was opined that the samples contained poppy powder. A challan was, therefore, filed against the accused, who pleaded not guilty to the charge framed against him. The prosecution examined 8 witnesses. Accused in his statement under Section 313, Cr. P. C. denied accusation. After hearing the Public Prosecution and counsel for the accused, the trial Court held that the prosecution has proved that the accused was found in possession of the contraband article. He, therefore, convicted and sentenced him, as stated above.

( 3 ) MR. Vishnoi, learned Amicus Curiae assailed the conviction of the appellant on the following grounds :- (I) The poppy powder is said to have been recovered from the accused on 16-3-1993 whereas the Malkhana Register Entry Ex. P-9 shows that it had been sent to Forensic Science Laboratory on 23-1-1993. This shows that the entire case for the prosecution is false. (II) There is no evidence of sending the seal impression to the F. S. L. and, therefore, the possibility that the samples were tampered with is not ruled out. (III) There was no compliance of Section 42 (2) of the N. D. P. S. Act.

( 4 ) LEARNED P. P. on the other hand, supported the judgment of the trial Court.

( 5 ) I have carefully gone through the evidence produced in the case. The first contention is based on the entry of handing over of a sealed packet to Sunder Kumar, F. C. A reading of this entry shows that the sample was handed over to Sunder Kumar in compliance of the order of Supdt. of Police, Sri Ganganagar dated 17-3-1993. The date 23-1-1993 written in the endorsement obviously has been written by mistake. The date of sending could not be prior to the date of seizure. The articles were seized and deposited in Malkhana on 16-3-1993 and, therefore, there was no question sending the packet on 23-1-1993. The entry was made by P. W. 4 Anirudh, Malkana Incharge. When he was in the witness box his attention was not drawn to this discrepancy in the record. If the accused wanted to take any advantage of the discrepancy he should have obtained the explanation of Anirudh. It is apparent on the face of record that the date 23-1-1993 was written by mistake in place of date 21-3-1993.

( 6 ) IT is relevant to point out that two bags were seized on 16-3-1993 and two samples were taken therefrom. Regarding the first sample there is clear entry that it was handed over to Sunder Kumar on 21-3-1993. Sunder Kumar, P. W. 6 deposes that he had taken both the sealed packets on 21-3-1993 and handed over them to F. S. L. on 22-3-1993. Thus, there is clear evidence on record th