Non-compliance with Section 50 of the Act of 1985 renders recovery suspect and vitiates conviction.

JUDGMENT

Dinesh Mehta, J. - The appellant-prosecution (hereinafter referred to as the 'appellant') has preferred the instant appeal against the order dated 07.03.1990 passed in Sessions Case No. 19/1988 (hereinafter referred to as the 'impugned judgment') by learned Sessions Court, Balotra (hereinafter referred to as the 'Trial Court), whereby the respondent-accused (hereinafter 'respondent') was acquitted of the charge under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act of 1985').

Facts:

2. On 16.12.1987, the S.H.O. Police Station-Siwana-Sh. Vishnulal upon receipt of information from an informant around 10:30 p.m. proceeded along with the police party and two independent witnesses, namely, Sh. Jesaram and Sh. Pukhraj who they picked from the Bus Stand-Siwana. Thereafter, they took a private vehicle to reach the Mokalsar Chauraha where they left the private vehicle and set up a barricade on the road that goes to the Agriculture Department to intercept the suspected person who was reported to be carrying opium.

3. Around 11:40 a.m. a train arrived from Jalore and shortly thereafter the police intercepted a man coming from the railway station carrying a handbag in his right hand. Upon search the man (accused-Karniya S/o. Shri Chuna Ram Vishnoi R/o. Foolan) was found carrying three polythene bags out of which two polythene bags contained opium milk and the third polythene bag was covered with opium milk.

4. Upon demand for a license to possess opium, the Respondent failed to produce any such license.

5. 1.63 kg, 1.27 kg, and 630 grams of opium milk was found in the three polythene bags respectively. 30 grams of the opium milk was taken from each bag as a sample which was sealed and packed. The accused-respondent was arrested and a case u/s. 17 and 18 of the Act of 1985 was registered as C.R. No. 158 dated 17.12.1987. Whereafter he was committed to the trial court u/s. 18 of the Act of 1985 and while denying the charges framed against him, he sought to be tried.

6. The respondent took a plea that a false case has been registered against him at the instance of one Sh. Mangla Vishnoi as a part of a conspiracy because the Respondent had lodged a case against Sh. Mangala Vishnoi in the past.

7. The trial court upon hearing both sides framed two points for determination:

(i) Has the prosecution succeeded in establishing guilt of the accused beyond reasonable doubt?

(ii) If yes, then what punishment should be given to the accused?

8. The appellant-State had submitted before the trial court that opium milk had been recovered from the respondent and as per the test report the seized articles were confirmed to be opium. Hence, as per the police investigation the respondent should be declared guilty. Per contra the counsel for the respondent submitted that the procedure prescribed under section 50 read with section 52 and section 57 read with section 42(2) of the Act of 1985 was not followed by the police and hence the entire investigation is botched up. Therefore, the charges framed against the respondent should be dropped.

9. The following witnesses came in the witness box to prove the prosecution's case:

10. P.W. 1-Herajram testified that on 16.12.1987, he was posted as a constable in Police Station-Siwana. On the night of 16.12.1987 at or around 10: