Honble TIWARI, J.–This appeal is directed against the judgment dated 28.9.93 passed by the Special Judge, NDPS Act Cases, Jaipur (District & Sessions Judge, Jaipur District) in Criminal Case No. 53/92 whereby, he convicted the appellants for the offences under Section 8/18 of the NDPS Act, 1985 (hereinafter to be referred as `the Act) and sentenced each of them to undergo rigorous impri- sonment for 10 years and a fine of Rs. one lac.

(2). In short, the facts of the case are that on 31.1.92, Shri Ashok Kumar Saxena. Sub Inspector, Central Bureau of Narcotics (CNB) checked the truck bearing No. C-II-7982 near village Kukas. Shri Gurmit Singh Driver, Jujhar Singh Cleaner, Paramjeet Singh owner and the present appellants in all 5 persons were found in it. At the time of search a brief case was found in the possession to the appellants, 2.200 kgs. of opium was found in it. The opium was seized, sample was taken for chemical analysis which was found to be of opium and after completion of investigation, a charge sheet was filed in the Court against all the five persons u/Ss. 8/18, 8/29 of the Act.

(3). After hearing the arguments charge under Sec. 8/18 of the Act framed against the appellants and under Section 8/29 of the Act against driver, cleaner and owner of the truck was framed. All of them denied the charge and claimed trial.

(4). The prosecution in support of its case examined eight witnesses; PW 1 Om Prakash Head Constable, PW 2 Bhagwan Singh Constable, PW 3 Ashok Kumar Saxena Sub Inspector, PW 6 Nand Lal Rai Inspector, PW 7 Mahesh Kumar Inspector, PW 8 Surendra Singh Constable of Central Narcotics Department, and PW 4 Mool Chand and PW 5 Radhey Shyam were the motbirs, but they have not supported the prosecution case, as such were declared hostile on the request of prosecution.

(5). Statements of accused persons were recorded under Section 313 Cr.P.C. They have denied all the allegations and circumstances appearing against them in the prosecution evidence and examined DW 1 Balchand in their defence.

(6). After hearing the arguments and on the basis of evidence adduced before him, the learned Special Judge held, that 2.200 kgs. opium was recovered from the possession of the appellants, therefore, convicted and sentenced them under Section 8/18 of the Act as mentioned above, but acquitted accused Gurmit Singh Driver, Jujhar Singh cleaner and Paramjeet Singh, owner of the truck for the offence under Section 8/29 of the Act. Therefore, this appeal has been filed by the present appellants.

(7). I hve heard the learned counsel for the appellants as well as learned Public Prosecutor at length and carefully perused the record.

(8). The contention of the learned counsel for the appellants is that in this case search, seizure and arrest was conducted and made by PW 3 Shri Ashok Kumar Saxena. Sub Inspector, Central Bureau of Narcotics, but according to the provisions of Section 42 of the Act he was not empowered in this behalf by the Central Government, therefore, the search, seizure was without jurisdiction. Both the independent motbirs have been declared hostile because they have not supported the prosecution case. The mandatory provisions of Sections 50, 52, 57 have not been complied with, therefore, the whole trial of the case stands vitiated. The pro- secution has come with a case that brief case was found in the possession of accused appellants. There is no proof that the brief case was belonging to the appellants or it was in conscious possession of the appellants, other persons were also travelling in the truck. Therefore, appellants cannot be convicted merely on the basis that a brief case containing opium was found in the truck. There are ma- terial contradictions and infirmities in the statements of prosecution witnesses, the prosecution case itself has been demolished by the prosecution witnesses. The prosecution has failed to prove that the sample of the opium remained intact after seizing till it reached in FSL. Therefore, this

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