JUDGMENT

1. The appellant has preferred this appeal under section 378(2) of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the judgment dated 23/06/1998 passed by II Additional Sessions Judge, Neemuch, District Mandsaur (M.P.) in Special Case No.144/1996, whereby both the respondents have been acquitted from the charges under section 8/18 and 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').

2. Brief facts of the case are that on 16.8.1996 at about 03:00 PM a general search was conducted by the RTO Check post, Nimbahera, whereby a Roadways Bus of Rajasthan was stopped and searched. At that time, co-accused Kalusingh and Jafar @ Tikku were found in possession of 230 gram brown sugar. They were arrested and during the investigation they have disclosed that the said brown sugar was given to them by the Iqbal Bohra, who generally kept their contraband with the present respondents No.1 and 2 Taj Khan and Sabir Khan. Act upon the said information NCB party raided on the spot and found that in the partnership of the Sabir Khan, Iqbal kept drugs in a drum of the Galla Mandi, Neemuch. Sabir Khan took out the keys from his pocket and open the locked drums in which a bag was found which contains brown sugar weight 140 grams and 30 grans opium. Necessary proceedings regarding sampling, seizing, etc. was done. Accused persons / respondents were arrested. According, offence has been registered against them.

3. After completion of investigation, charge sheet was filed against the respondents and both the respondents were charged with Section 8/18 and 21 of the NDPS Act. They have absurd their guilt and claim for trial. After completion of trial on the basis of the evidence available on record, the trial Court has acquitted both the accused persons / respondents from the aforesaid charges.

4. Learned counsel for the appellant contended that the trial Court has erred in holding that the provisions of sections 42, 50, 52, 55 and 57 were not complied with, whereas in the instant case as the recovery was made in public place, hence, compliance of section 50 was not all required. The trial Court has erred in holding that the report of the chemical examination related to the same drug, which was seized from the respondents is doubtful. The trial Court has also erred in not relying upon the statement given by the respondents to the officers of NCB which are admissible in evidence. The trial Court has overlooked the fact and statement of Jafar, whose statement was first recorded by the seizing officer and thereafter, the Investigating Officer and the said recovery was made after the information of Jafar. The judgment of the learned trial Court is bad both in law and facts. Therefore, he prayed that the appeal be allowed and the judgment passed by the trial Court be set aside and the respondents be convicted and punished according to law.

5. Per contra, learned counsel for the respondents opposed the same and prays for its rejection by submitting that as per the evidence available on record, no offence is made out against the respondents. The trial Court has rightly acquitted the respondents from all the charges.

6. Heard learned counsel for both the parties at length and perused the impugned judgment as well as record of the trial Court.

7. It is relevant to mention here that before the learned Special Judge it was contended on behalf of the accused / respondents that since the NCB personnel searched the Galla Mandi, Neemuch only on account of receipt of information given by the co-accused Kalusingh and Jafar. It was necessary for the concerned NCB Officers to have forwarded the said information to his senior officers as per the provisions of Section 43 of NDPS Act, but Inspector Ashwini Kumar Mishra (PW-9) admits in his crossexamination that he did not obtained any written consent of the accused person regarding the search and also he did not inform him that they have right to search before any gazett