Nirmaljit Kaur, J.

This criminal appeal has been filed under Section 373(iii) & (i) of the Cr.P.C. against the judgment and order dated 05.04.1990 passed by learned Sessions Judge, Balotra in Session Case No.28/1988 acquitting the accused-respondent of the offence under Section 17 of the NDPS Act.

2. Brief facts of the case are that on 06.04.1988 at 8:00 p.m., Head Constable Bhar Singh along with Hari Singh, Bhanwar Bharti, and Bhagirath started from Police Chowki Kalya During the Nakabandi, an information was received at about 2 a.m. that one person was coming from Doli Kallan to eastern side along with opium. Accordingly, Bhar Singh, Head Constable along with aforesaid officials reached Doli Nadi at 3 a.m. where they saw the present accused-respondent carrying a bag on his right hand. He told his name as Khinvre Khan. On asking as to what he was carrying in the bag, he did not give any satisfactory reply. On strong suspicion that the accused-respondent was carrying opium in his bag, Bhar Singh brought the accused-respondent to Police Chowki Kalyanpur. Thereafter, Ranchhod Singh, S.H.O., P.S. Mandli was informed on wireless. On information, Ranchhod Singh arrived at Police Chowki Kalyanpur at 7:00 a.m. and the accused was produced before him. Accused-respondent was searched in the presence of two witnesses i.e. Bhar Singh (PW-1) and Mohan Lal (PW-2), Both are police constables. On search of the bag, 2.900 kgs. of opium was recovered. An FIR was registered, investigation commenced and challan was filed against the accused-respondent.

3. During the course of the trial, as many as 5 prosecution witnesses were examined and the statement of the accused-respondent was recorded under Section 313 of the Cr.P.C. After conclusion of the trial, the respondent was acquitted of the charge levelled against him.

4. From the perusal of the judgment, it appears that the accused-respondent has been acquitted on the ground that there was non-compliance of Section 50 of the NDPS Act. Secondly, the accused was neither made aware of his right to be searched before a Gazette Officer or a Magistrate, First Class and nor any option to be searched before an Officer of his choice was given to him. There was also non-compliance of Section 42 of the NDPS Act as no information was sent to senior officer.

5. Learned counsel for the parties were heard.

6. Learned counsel for the appellant-State submitted that the prosecution has proved its case beyond doubt.

The accused-respondent was caught red handed while he was in possession of 2.900 kgs. of opium. There are no contradictions in the statements of the prosecution witnesses.

7. Learned counsel for the respondent on the other hand pointed out from the record that the recovery was effected on 06.04.1988 at 2:00 a.m. and a sample of 30 gms. was taken. FIR was registered on the same day at 11:30 a.m. On 06.04.1988, the sample was given to PW-5 Arjun Ram, Malkhana Incharge, by Ranchhor Singh, S.H.O, Police Station Mandli. Arjun Ram (PW-5) handed over one sample (30 gms.) to PW- 2-Vishram Singh, FC of P.S. Mandli, who started his journey to S.P.Office, Barmer on 14.04.1988. PW-2 Vishram Singh reached Barmer at 1:30 P.M. on 14.04.1988 but took it to the office of the S.P. on 15.04.1988 instead of 14.04.1988 itself. As per the evidence on record, PW-2 Vishram Singh handed over the sample to FSL office at Jaipur on 16.04.1988. As per the argument of learned counsel for the accused-respondent, no evidence or explanation is forthcoming as to where the sample was kept in the night of 15.04.1988. Further, the sample was collected from S.P. Office, Barmer on 15.04.1988 itself but it was handed over to the FSL office, Jaipur on 16.04.1988. It is not established as to where the sample was kept by Vishram Singh in the night of 15.04.1988. Thus, the tampering of the sample cannot be ruled out.

Secondly, the sample was 30 gms. but as per the FSL report, the sample that was received weighed 47 gms.

8. The finding of the tria