The prosecution must prove the factum of recovery beyond a reasonable doubt, and the search and seizure must be conducted in accordance with the provisions of the NDPS Act, including informing the accused of their right to be searched in the presence of a magistrate.

S. K. PHAUJDAR, J.

( 1 ) THE present appeal is directed against the judgment and order dated 12-8- 1994 passed by the IIIrd Additional Sessions Judge, Bijnor, in Special S. T. No. 2 of 1993. By the impugned order, the learned trial court found the appellants guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hence forth to be described as the Act. The Appellant was sentenced to undergo R. I. for 10 years and to pay a fine of Rs. 1,00,000. 00 and, in default thereof, to a further period of simple imprisonment for three years.

( 2 ) ACCORDING to the prosecution story, Sri Bhagwan Sharma, S. O. Rehar, District Bijnor, along with other police officials had come out on a round on 11-10-1992. On the way another police Sub-Inspector met them with his team and the two groups were discussing about informations concerning terrorists when they saw a person coming from the side of Pilidam. He had a bag with him and on seeing the police, he clasped closed to his person. The police officials suspected that he was carrying something forbidden. He was stopped and was confronted and before anything more could be done, he started begging apology stating that his bag contained dhora (Opium straw ). The S. O. Bhagwan Sharma, then told him that he had the option to get him searched before a gazetted officer. The man indicated that he had full confidence on these police officers and asked them to search his person. The local people who were passing nearby were asked to be present during search but they refused to participate to avoid trouble. The man gave out his name as Nisan Singh and disclosed his parentage and residence. On search, he was found carrying in his right hand a rexine bag and it was containing powdered opium seeds weighing about 6 kg. in a black polythene bag. The S. O. smelt it and got the same smelt by others. It was smelling like opium seeds. The accused could not show any licence for keeping the material with him. He begged apology again. A search memo was prepared at the spot. The material was subsequently examined and was found to be opium straw, as per the report of the chemical examiner.

( 3 ) DURING trial, the witnesses examined were the S. O. Bhagwan Sharma (PW 1), S. I. of police Devendra Kumar Sharma (PW 2), R. C. Singh, S. I. of Police (PW 3) and constable Hamid Khan (PW 4 ). The accused was examined under Section 313, Cr. P. C. and he denied the allegations of seizure from him and alleged false implication. The learned counsel for the appellant not only challenged the factum of recovery, but also pointed out different defects in the prosecution story by way of non-compliance of the specific provisions of the Act concerning seizure and follow-up procedures.

( 4 ) THE FIR spoke of detection at the initial stage when the man was seen moving suspiciously. On challenge, he allegedly made a confession and he was offered the option to be searched before a gazetted officer. He agreed to be searched by the police officer himself and from him the incriminating article was recovered from one black polythene bag kept inside the rexine bag. The seizures list that was prepared at the spot contains almost similar allegations. There is nothing in the seizure list, however, to indicate that the signature of the accused were obtained on it. There is, however, an endorsement that a copy of the seizure-list was given to him. The evidence on this point may be seen. Here also PW 1 stated that the man disclosed that he was carrying opium straw and he was offered the choice of being searched by gazetted officer. The evidence of PW 1, however, varies from the seizure-list to the extent that in the seizure-list only one bagful of opium straw was mentioned weighing about 6 kilos and in evidence the material has been described to have been found in 6 polythene bags of one kilo each. These 6 bags were identified after a sealed packet was opened in the court. He was cross -examined on this discrepancy and there is

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