Hon'ble AGARWAL, J.—The accused-appellant has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 05.03.2005 passed by Special Judge (NDPS Cases) Bundi in Sessions Case No.5/2003 whereby the appellant has been convicted for offence under Section 8/18 of the Narcotic Drugs & Psychotropic Substance Act, 2005 (sic 1985) (hereinafter to be referred as "the Act") and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- and in default thereof to further undergo rigorous imprisonment for one year.

2. The brief relevant facts for the disposal of this appeal are that the appellant was charge-sheeted for the above offence on the premise that on 6.4.2003 when a motorcycle, on which the appellant was riding, was searched by SHO Police Station Nainwa (District Bundi) in the presence of independent witnesses narcotic drug opium weighing 3.500 kg. contained in a polythene bag which was further contained in a cotton bag was recovered without any valid licence or permit. In this regard FIR No.94/2003 was registered at Police Station Nainwa (District Bundi) for offence under Section 8/18 of the Act. To prove the charge the prosecution produced oral as well as documentary evidence whereas in his statement under Section 313 Cr.P.C, the appellant denied the allegation and evidence of the prosecution and specifically stated that at that time he was a pillion rider on the motorcycle with Kanhaiyalal but the police with the connivance of Shri Kanhaiyalal involved him in a false case. It was also stated by him that no opium was recovered from his possession and the recovered opium does not belong to him the police did not give him any notice and near the place of alleged incident several shops are situated but the police did not make any efforts to call any independent witness to associate in the process of search and seizure. It was further stated by him that he even does not know how to rule a motorcycle and the police pressurized him to put his signature on several papers. It was also stated by him that at the time of recovery packets were not sealed. In defence the appellant produced DW1 Shri Chhitarlal and during cross examination of prosecution witnesses copy of statements under Section 161 Cr.P.C. of Shri Jagdish, Brij Mohan and Randheer Singh were exhibited.

3. The trial court after evaluating and appreciating the evidence produced by the respective parties arrived at a conclusion that the appellant was having in his possession the recovered contraband by the reason that at the time of recovery, the motorcycle from the dicky of which the recovery has been made was in the possession of the appellant and he was riding on it. The trial court also came to the conclusion that the quantity of recovered contraband is more than the commercial quantity as provided under the provisions of the Act. It was also concluded that during investigation, the Recovery Officer duly complied every mandatory provisions of the Act and, therefore, on the basis of the conclusions arrived at by the learned trial court, the appellant was convicted and sentenced by the impugned judgment and order dated 05.03.2005 in the manner as has been stated hereinabove. Hence, the instant appeal.

It is pertinent to note that alongwith appellant one Shri Vijay Bahadur Singh and Raju were also tried but they have been acquitted from the charge levelled against them.

4. Heard learned counsel for the appellant as well as learned Public Prosecutor and have also gone through relevant legal provisions and the record made available for my perusal.

5. Assailing the impugned judgment and order, the learned counsel for the appellant has raised following grounds:-

(i) Provisions of Section 50 of the Act were not complied with :- In this regard it was contended on behalf of the appellant that Section 50 of the Act provides that before search of a person is conducted, he shall by a written notice be informed of h

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