Non-compliance of procedural safeguards and lack of evidence of occupation of the house where the opium was recovered and improper handling of the opium samples can lead to the quashing of a conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985.

( 1 ) THIS appeal is directed against the judgement dt. 7-7-87, passed by the IInd Additional Sessions Judge, Mandsaur in Sessions Trial No. 178/86, thereby convicting the appellant under S. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), and sentencing him to undergo R. I. for ten years, and pay a fine of Rs. one lac or in default of payment of fine, to suffer a further two years R. I.

( 2 ) THE prosecution case stated in brief was that on 7th February, 1986, around 4. 00 p. m. in village Ramkoda, within the jurisdiction of the Police Station Bhavgat, District Mandsaur, the appellant was found to be in possession of 10 kgs. 100 gms. of opium.

( 3 ) ON information received as per Ex. P. 13, the Station House Officer, Police Station, Bhavgat, proceeded for raid and on reaching the house of the appellant, searched the same and found a plastic bucket lying in a corner of a room on the first floor of the house. It contained a ragzine bag containing opium. It is said that the accused admitted it to be his.

( 4 ) THE prosecution examined as many as nine witnesses to prove the charge against the appellant. Out of these witnesses, PW 1 Bapulal, PW 2 Radheshyam and PW 4 Mohanlal were declared hostile by the prosecution. The other witnesses included the Assistant Chemical Examiner K. Satyamurthy, Kannuram PW 3, village Sarpanch Radhakrishnan PW 6, Head Constable Khalikhan PW 7, Constable Narain Singh PW 8 and Sub-Inspector Anilsingh PW 9.

( 5 ) LEARNED, counsel appearing for the appellant has assailed the conviction on numerous grounds including - (i) that the house in question wherefrom opium is said to have been recovered, has not been proved to be in occupation of the appellant, (ii) there was no compliance of the procedural safeguards as provided by the Act, (iii) the cumulative effect of the evidence of Sub-Inspector Anilsingh, Head Constable Khalikhan and village chowkidar Kaniram, does not positively establish that the house in question either belongs to the appellant or was occupied by the appellant. It was also urged by the learned counsel that it was not proved that the article seized was opium, inasmuch as the presence of maconic acid has not been determined by the Asstt. Chemical Examiner. There was no evidence on record to show that the sample of opium taken from the bag was properly persued at every stage of passing of hand till it actually reached the chemical analyst. It was strenuously urged that S. 5 of the Act was not complied with.

( 6 ) SHRI Khan, learned counsel for the respondent on the other-hand submitted that the conviction as recorded by the trial Court is well supported by evidence on record, and does not call for any interference. ( 7 ) THE first point raised by the appellant's counsel was - whether the house in question from where the opium was recovered belongs to and occupied by the appellant ? As has been noted by the trial Court, in its judgement, para 10, the independent witnesses, Bapulal and Radheshyam, do not support the prosecution case, P. W. 4 Mohanlal has categorically stated that he had sold this house to Radheshyam - the brother of the appellant, some ten years ago and had also executed a sale deed, although it was not registered. These witnesses were also declared hostile. The trial Court has found that he does not support the prosecution case. The evidence of village chowkidar P. W. 5 has been held by the trial Court, does not support the prosecution in establishing that it was the appellant, who was the owner and occupier of the house in question. Considering the evidence of Anilsingh Rathore P. W. 9 the trial Court has noted that, in para 12 of his evidence, he admitted that it was on the basis of the information given by the Constable Khalikhan, that he came to know that the house belongs to the appellant. All these witnesses named above, have not been relied upon by the trial Court for the purpose. The only witness, wh