Hon ble THANVI, J.—These are two separate appeals, one filed by Guneshgar and the other by Rukmana Ram against the judgment of the learned Special Judge, NDPS Cases, Jodhpur dated 17.7.06, whereby both the accused appellants were convicted for the offence u/s.8/15 of the Narcotic Drugs & Psychotropic Substances Act, 1985, hereinafter referred-to as “the Act and sentenced to ten years R.I. and to pay a fine of Rs.one lac and in default, to further undergo one year s S.I.

2. Facts leading to these appeals are that on 25.5.05 at 3 P.M., when the SHO Ramchandra of Police Station, Dhorimanna, District Barmer, was patrolling with other police staff in Govt. jeep being No.RJ04C1781 & intercepting the vehicles for checking at Meethda Phanta on National highway No.15, at 5 PM they saw one Tata Sumo with black glasses, which were closed, coming from the side of Gandharv. On suspicion, they tried to stop the vehicle but the driver on seeing the police party, rushed the vehicle towards Dhorimanna. The Govt. vehicle was turned towards the Tata Sumo and at some distance, the Tata Sumo was stopped. The name of the driver was Rukhmana Ram and the person sitting nearby disclosed his name to be Guneshgar, who are present appellants. Upon asking the reason for driving the vehicle at fast speed, they apologized. On opening the gate from the side of the driver, large number of contraband `dodapost was found for which they were having no valid licence. The constable Moola Ram thereupon was sent at Police Station for bringing the investigation box and weights & measures were obtained from the market. The motbirs Fauja Ram and Babulal were called from another vehicle plying on the road. Thereafter, the gunnybags were turned out of the vehicle and on checking, they were found to be six in number with `dodapost . In each gunnybag, the contraband article was found to be 38 kgs., out of which 500 gms. of two samples from each of the gunnybags was taken, which were sealed in cotton bag and marked as `A and `A-1 and rest of the 37 kgs. was sealed and marked as `A-2 . Accused were arrested and taken to the police Station. During investigation, the seized articles were sent for chemical examination and thereafter the challan was filed against the accused u/s.8/15 of the Act. The accused were charged accordingly to which they pleaded not guilty. The prosecution examined 9 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced Gena Ram, DW 1 and Oma Ram, DW 2 in their defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellants as above.

3. Learned counsel for the appellants have vehemently contended that in the present case, the compliance of Section 42 of the Act has not been made because the information or knowledge through which the contraband articles were seized, was not reduced to writing and was not forwarded to the superior officer. The learned trial Court has wrongly held that this is a case covered u/s.43 of the Act. According to the learned counsel, even if there is a search on the public place or in transit, the information has to be reduced in writing and is required to be sent to the superior officer. Their next contention is that in this case, the Malkhana articles i.e. 6 gunnybags, each containing 37 kgs. of contraband article, have also not been produced in the court for identification as also it is revealed from the FSL Report that the samples were packed in a cotton bag, whereas as per the recovery memo and the statement of the SHO Ramchandra, they were sealed in plastic bag and thereafter in the cotton bag. Apart from this discrepancy, the seals are also different and they were not intact, as they were not re-sealed while depositing the same in the Malkhana. This has resulted in non-compliance of Section 55 of the Act. In support of their contentions, they have placed reliance on various pronouncements, which will be referred at the later stage.

4. Per contra, le

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