Non-compliance with certain provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 is not prejudicial unless it causes harm to the accused.

Dr.SAROJNEI SAKSENA, J.

1. Accused-appellant has preferred this Criminal Appeal against his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) recorded in Sessions Case No. 7 of 1986 by Shri R. N. Batra, Additional Sessions Judge, Bhiwani.

2. The factual matrix of the case is that on 16-2-1986, the accused was travelling in Haryana Roadways Bus, when this bus stopped at bus stand Jhupa, Head Constable Dharambir accompanied by other police constables checked the said bus. He found that the accused sitting on the rear seat of the bus, putting a bedding on his thighs. Head Constable Dharambir checked this bedding Ex. P. 5. It contained one blanket Ex. P. 1, three shawls Ex. P2 to Ex. P4 and opium which was wrapped in a wax paper. Accused was made to alight from the bus. On weighment opium was of 10 kilograms. 10 grams of opium was taken out as a sample. Two packages were prepared and were sealed with the seal of DB. Remaining opium Ex. P. 7 was sealed in a tin box. After use seal was handed over to Constable Prem Singh. All these articles were seized vide seizure memo Ex. PA. on personal search, Rs. 36050, one wrist watch and a key of brass were recovered from the possession of the accused. Rugga Ex. PC was sent. Case was registered by Pala Ram MHC, Police Station Sewani. Rough site plan was prepared at the spot. On return to the Police Station, case property was handed over to MHC, Police Station Sewani, with seals intact. Sample was sent to the Chemical Examiner, whose report is at Ex. PE. As per this report, sample contained opium. On these facts, charge under Section 18 of the Act was framed against the accused.

3. Accused pleaded not guilty. His plea is that he was travelling by that bus and was going to Punjab in connection of his business. He dropped at Sewani, where he was illegally detained bay the police officials. They found Rs. 36050.00 with him. He explained possession of this huge amount with him but police officials were not satisfied. He raised hue and cry. Certain respectable intervened. To save of their own skin, these Police-walas implicated him in this false case. He did not adduce any evidence in defence.

4. During trial, prosecution examined three witnesses. Report of the Chemical analysis was submitted. Relying on the prosecution evidence, the trial Court held that the accused was having in his possession 10 kilogram opium without any licence. Thus, he was held guilty under Section 18 of the Act and was sentenced to 10 years rigorous imprisonment with a fine of Rs. 1,00,000/- and in default to undergo further rigorous imprisonment was two years.

5. Appellants learned counsel raised only three objections firstly that mandatory provision of Section 50 was not complied with, secondly sample was not examined by authorised Chemical Examiner as per Rule 2(c) of the Narcotic Drugs and Psychotropic Substances Rules, 1985 and lastly that independent witnesses were not joined, therefore, the statement of the police witnesses should not have been relied on, to support his first contention, he has relied on Ali Mustaffa Abdul Rahman Moosa V/s. State of Kerala, 1994 (3) Recent CR 595.

6. Learned counsel appearing for the State contended that as it was a case of chance recovery provisions of Section 50 were not to be complied with. The provision of Section 74 of the Act protects the investigation made by the Head Constable and Rule 2(2) of the said Rules do not apply in this case. Chemical Analysis of the seized opium can be made at any laboratory in the country to expedite investigation in trial. In support of this contention, she has relied on Ram Dayal V/s. Central Narcotic Bureau, Gwalior, 1993 (1) Recent Criminal Reports 264.

7. Ali Mustaffas case 1994 (3) Recent CR 595 (supra), is distinguishable on facts. In that case, the Investigating Officer received reliable information that the accused is having charms in his possession who is sitti