JUDGMENT

1. This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 07.05.2019 passed by Special Judge (NDPS Act) Jawad, District Neemuch in Special S.T. No.10/2017 whereby the appellant is convicted for the offence punishable under Section 8 r/w 21(b) of NDPS Act (hereinafter referred to as the "Act") and sentenced for 5 years R.I. with fine of Rs.50000/- and default stipulations.

2. As per the prosecution story, on 25.06.2012, police station Jawad received an information (vide Ex.P/3) through information that the appellant alongwith two other co-accused persons who are standing near a school and are in possession of illegal contraband (heroin).

3. Acting upon the said information, after following the due process and preparation of various panchnamas, the police party raided the spot pointed out by the informer. After seing the police force, the accused persons as indicated were trying to run from the spot and out of the three persons, the police has caught one person and two were succeed in fleeing away. On being interrogation, the appellant has told his name as the appellant and also stated the names of the co-accused persons were fled away from the spot. After following the due process, on being searched (vide Ex.P/10), a yellow packet was recovered from the left pocket of paint of the appellant and identified as Heroin. On being weight, the contraband was found 100grams.

4. The investigating team, thereafter prepared the weight panchnama vide Ex.P/13, taken two samples of 5 grams each, sealed the contraband vide Ex.P/14, seal panchnama was made vide Ex.P/15, prepared the seizure panchanam vide Ex.P/16 and stated the reasons of arrest to the appelant vide Ex.P/17 and arrested him vide arrest memo Ex.P/18, contraband was taken to the police station and FIR was lodged vide Ex.P/19. The police prepared the spot map vide Ex.p/22 and sent the samples for forensic laboratory (FSL) vide Ex.P/57. Thereafter, after following the due process, the police has filed the charge-sheet against the appellant before the Special Court.

5. The prosecution has examined total 07 witnesses namely the Umesh Vyas (PW-1), Vikram Dhurve (PW-2), Aziz Khan (PW-3), Manoj (PW-4), O.P. Shrivastava (PW-5), Pannalal Chouhan (PW-6), Vinod (PW-7),

6. In defence, no witness has been examined by the appellant.

7. The appellant/accused abjured his guilt and he took a plea that he is innocent.

8. The appellant was tried and charged and tried and thereafter, the learned trial Court, after considering the evidence and material available on record has Convicted the appellant, as stated above.

9. Learned counsel for the appellant has submitted that the learned trial Court has wrongly convicted the appellant without considering the fact of non-compliance of Section 50 of the NDPS Act. The learned Court below has erred in not considering the fact that the prosecution agency, at the time of raid, has not complied with the mandatory provisions of the Act. It is further submitted that the witnesses of seizure PW-4 Manoj and PW-9 Vinod have turned hostile and have not supported the case of the prosecution. It is further submitted that the recovery has not been made in the presence of Gazetted Officer or a Magistrate, hence, the conviction vitiates. It is further submitted that the prosecution has not complied with the provisions of Section 50, 42(2), 52-A, 55, and 57 of the NDPS Act which are mandatory in nature. The prosecution has not produced the contraband before the Court below which is clear violation of Section 52-A (2) of the Act. The learned trial Court has convicted the appellant without considering the contradictions and omissions in the statements of the prosecution witnesses. The Investigating Officer has not followed the procedure due under Section 55 of the Act for affixing the seal on the samples being mandatory in nature because in the instant case, the contraband was neither having the seal of Investig