JUDGMENT :

Sukhvinder Kaur, J.

The appellant-State has preferred the instant appeal against judgment dated 14.08.2003, passed by learned Additional Sessions Judge, Sirsa, vide which respondents-accused Amarjeet Singh and Parkash Chand have been acquitted.

2. Factual Scenario, as per prosecution version is that on 15.12.2002, police party headed by ASI Mahabir Singh received secret information that two youngsters, who indulge in the trade of selling opium, had gone towards Odhan for purchasing opium in car bearing registration No.DL-5C-5385 and they would return through the same route and if their search was conducted, a huge quantity of opium could be recovered. On the basis of said information, Nakabandi was conducted and the said car was signalled to stop. The driver stopped the car and disclosed his name as Amarjeet Singh and the other person disclosed his name as Parkash Chand.

3. The search of the car was conducted and an one dibba tin was recovered from the boot of the car, wherein some narcotic substance was suspected. The accused were served with notice under Section 50 of the NDPS Act, who did not repose faith in the police and opted to get the search conducted in the presence of Gazetted Officer. DSP Chander Singh (Gazetted Officer) was called at the spot and on his direction search of the aforesaid dibba tin was conducted, wherein opium wrapped in the polythene was found. Two samples of 100 grams each were taken and the remaining opium was found to be 2 Kgs 800 grams. The sample parcels and the dibba tin containing opium were sealed with the seal of MS and CS. Seal MS after use was handed over to HC Ram Singh while seal CS after use was retained by the DSP. The recovered substance and the vehicle were seized vide recovery memo in the presence of the witnesses. A ruqa was prepared and sent to the police station for registration of the case on the basis of which FIR was registered. Site plan of the place of recovery was prepared. Statement of witnesses under Section 161 Cr.P.C. were recorded. Accused were arrested. The case property and the sample parcels were deposited with the MHC with seals intact. The samples were sent to the FSL Madhuban for analysis. After completion of investigation challan against the accused persons was presented in the court, for judicial verdict.

4. After finding a prima facie case against the accused, they were charge-sheeted for the offences punishable under Section 15 of NDPS Act, to which they pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution has examined PW1-ASI Mahabir Singh, PW2-ASI Hukam Chand (Investigating Officer), PW3-H.C. Mangal Singh, PW4-Constable Raghubir Singh, PW5-H.C. Ram Singh and PW6-Chander Singh, Dy. S.P. Dabwali.

6. Statements of accused under Section 313 Cr.P.C. were recorded in which, all incriminating evidence was put to them, which they denied and pleaded innocence and closed their defence evidence.

7. Learned trial Court concluded that prosecution failed to prove its case against the accused beyond reasonable doubt and acquitted the accused of the offences in the present case.

8. Aggrieved of the said decision, present appeal has been filed by the appellant-State challenging acquittal of the accused Amarjeet Singh and Parkash Chand.

9. Learned counsel for the appellant-State has vehemently contended that the trial Court did not rightly appreciate the evidence brought on record by the prosecution and undue weightage to non- joining of public witness has wrongly been given. The trial Court further gave undue weightage to non compliance of Section 42 of the NDPS Act as in cases of recovery of a contraband from a conveyance or public place, the provisions of Section 43 of the Act read with Section 49 of the Act would be applicable and not the provisions of Section 42 of the Act. The trial Court further erred in arriving at the conclusion that Sections 55 and 57 of the NDPS Act have not been complied with. The provisions of Sections 55 and 57