Honble JAIN, J.–This appeal, on behalf of accused Kalyan S/o Genda, under Section 374 (2), Cr.P.C., is directed against the judgment and order dated 31.5.2001 passed by the Special Judge (N.D.P.S. Cases), Jhalawar, in Sessions Case No. 20/2000, whereby the accused-appellant was convicted under Section 8/18 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (for short, `the Act) and sentenced to ten years rigorous imprisonment and a fine of Rs. 1,00,000/-; and in default of payment of fine, to further undergo one years additional rigorous imprisonment.

(2). Briefly stated the facts of the case are that PW-4 Narendra Singh Meena, Deputy Superintendent of Police, lodged a First Information Report, on 9.8.2000, at Police Station Ghatoli, District Jhalawar, wherein it was alleged that when he was on patrol duty he saw one person, who, on seeing the police jeep, tried to run away. Thereafter that person was caught hold and it was founded that he was carrying one plastic bag and he suspected him. Thereafter two independent witnesses were called and it was apprised to the accused that he will be searched and there will be an option for him to get his search done either before Magistrate or before Gazetted Officer. On search, the contraband opium weighing 3 kg. and 750 gram was recovered from his possession. The accused was arrested. Out of said contraband opium, two samples of 50 gram each were taken and sealed. The remaining contraband opium weighing 3 kg. 650 gram was separately sealed. The contraband seized and accused, were handed over to the S.H.O. The S.H.O. registered the F.I.R. and started investigation in the case. After completion of investigation, a charge-sheet was filed against the accused. The Trial Court framed charge against the accused for the offence under Section 8/18 of the Act, who denied the charge and claimed to be tried. The prosecution examined 11 witnesses and produced documents Exhibit P-1 to Exhibit P-16. Thereafter statement of accused under Section 313, Cr.P.C. was recorded. No evidence was adduced in defence.

(3). The learned Trial Court, after hearing both the parties, convicted and sentenced the accused-appellant, as mentioned above.

(4). The learned counsel for the accused-appellant contended that the search and seizure in the present case was made by PW-4 Narendra Singh Meena, Deputy Superintendent of Police, who was not authorised by the State Government under Section 42 of the Act. He referred the Notification No. F.1(3)FD/EX/85-1, dated 16.10.1986, wherein all Inspectors of Police and Sub Inspectors of Police posted as Station House Officer, were empowered to exercise the powers mentioned in Section 42 of the Act.

(5). He further contended that as per Section 50 (1) of the Act the accused should have been taken to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 or to the nearest Magistrate and the Gazetted Officer or the Magistrate, before whom any such person is brought, shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. He contended that in the present case the Gazetted Officer Dr. Vishnu Prasad was called at the spot, therefore, it is contrary to the provisions of Section 50 (1) of the Act.

(6). He further contended that the contraband in the present case was not produced in the court and as such this is an illegality and recovery of contraband cannot be said to be proved only on the basis of recovery memo etc., particularly when there was no independent witness in the present case. He also contended that seal used by PW-4 Narendra Singh Meena, Deputy Superintendent of Police, was not sealed at the spot and the same was not sent to Forensic Science Laboratory (for short, `FSL) along with the sample. He also contended that there is variance in weigh of the sample seized and sent to FSL. The weigh of sample seized was 50 gram whereas, as per Exhibit P-16 the FSL Report, the weigh of th

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