Honble YADAV, J. – Instant appeal has been filed against the judgment dated 6.11.1995 passed by learned Special Judge, N.D.P.S. Act Cases, Udaipur in Sessions Case No. 94/95 whereby he convicted the appellant for offence punishable under Section 8/18 of the N.D.P.S. Act and sentenced him with ten years, R.I. and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo two years R.I.

(2). The brief facts leading up to this appeal briefly stated are that on May 19th, 1995 at about 7.40 p.m. Parbat Singh, S.H.O, P.S. Hathi Pole, Udaipur received a credible information that the appellant possessed opium and would be available at Mohta Park. Having received the aforesaid credible information P.W. 5 Parbat Singh recorded aforesaid information in Rojnamcha at 7.40 p.m. and proceeded along with A.S.I. Vikram Singh P.W.1, A.S.I. Shakti Singh P.W.2, Head Constable Shyam Lal Pw. 6 and Constables Bhagwat Singh, Ravindra Singh, Bhanwar Lal, Gopal Lal and two motbir Survir Singh P.W. 9 and Lal Singh P.W. 10.

(3). At about 8.15 p.m. appellant was searched and 300 grams of opium was found in his possession. A sample of 20 grams was taken in a separate packet and was sealed and rest of the opium was also sealed separately.

(4). Thereafter FIR No. 17/95 Ex. P/7 was lodged and the appellant was arrested on the spot. Sample was sent for chemical examination to the F.S.L., Jaipur. The F.S.L. report is Ex. P/11 according to which the sample contained 1.61 percent morphin.

(5). The police after completion of investigation submitted the chargesheet before the learned Special Judge, N.D.P.S. Act Cases at Udaipur who framed charges against the appellant under Section 8/18 of the N.D.P.S. Act on 26.7.1995.

(6) The accused-appellant pleaded not guilty and claimed trial.

(7). The prosecution in support of the case against accused-appellant exami- ned P.W.1 Vikram Singh, P.W. 2 Shakti Singh, P.W.3 Kesar Singh, P.W.4 Richhpal Singh, P.W.5 Parbat Singh, P.W.6 Shyamlal, P.W.7 Suresh Kumar, P.W.8 Ishwar Lal, P.W. 9 Survir Singh and P.W.10 Lal Singh.

(8). The statement of the accused was recorded under Section 313 Cr. P.C. by the learned Special Judge, N.D.P.S. Act Cases, Udaipur and the appellant has stated that he has been falsely implicated in the case by the police. It is also stated by the accused appellant that he has nothing to do with the alleged recovered opium and claimed himself to be innocent. He did not examine any witness in support of his defence.

(9). A close scrutiny of the Original record summoned from the court of lear- ned Special Judge, N.D.P.S. Act Cases, Udaipur reveals that all the independant four witnesses viz. P.W.3 Kesar Singh, P.W.8 Ishwar Lal, P.W.9 Survir Singh and P.W.10 Lal Singh have been declared hostile by the prosecution. agency.

(10). I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length and carefully gone through the material available on record.

(11). Main thrust of the argument of the learned counsel for the appellant before me is that in this case the provisions of Section 50 of the N.D.P.S. Act have not been fully complied with. In support of his aforesaid argument the learned counsel for the appellant placed reliance on a decision rendered by learned Single Judge of this Court in the case of Badrilal vs. State of Rajasthan (1), decided on 31.1.1996. He also placed reliance on another decision given by learned Single Judge of this Court in the case of Veeru Lal vs. State of Rajasthan (2).

(12). Learned Public Prosecutor refuted the aforesaid argument of the learned counsel for the appellant and submitted before me that the evidence collected in a search in violation of Sec. 50 of the N.D.P.S. Act does not become inadmissible in evidence. The consequence would be that evidence discoverrd would be to prove unlawful possession of the contraband under the Act. According to him though notice under Sec.50 of the N.D.P.S. Act Ex.D/1 has not given option to the accused appe

Click Here to Read the rest of this document