Appellant stands convicted under section 8 and 20(b) of the Narcotic Drugs and Psychotropic Substances Act.

The prosecution story is that on 15th of April 1996 Deepak Kapoor was Incharge of Police Station, Unarsi Kalan, Distt. Vidisha. He stopped the appellant. He found that appellant was carrying a small bag containing ganja. After this gonja was recovered the aforementioned police officer made further search of the motor cycle. Nothing more was found. The Ganja and the motor cycle were taken possession of. Seizure memo was prepared. A case was registered under the aforementioned provisions.

The appellant stands convicted as indicated above. The conviction is being challenged on the grounds :

(i) That there was non-compliance of section 50 of the Act, 1985.

(ii) that, sample in question was sent for examination after inordinate delay of one month;

(iii) that, if the documents Annexures P-3, P-4 and P-5 are read together then there is apparent inconsistency. It is accordingly argued that benefit of this inconsistency should go to the appellant.

So far as the argument raised by the learned counsel for the appellant vis-a-vis non-compliance of section 50 of the Act, 1985 is concerned. I am of the opinion that no fault can be found with the procedure adopted by the police officer. The police officer was not having any prior information. He happened to check the appellant. 50 grams of Ganja was recovered. After this recovery was made, the police officer informed the appellant that he has a right for further search to be conducted in the presence of a Magistrate or in the presence of a gazetted officer. The appellant expressed willingness to be searched by the police officer in question. If this be the position then the provisions of section 50 of the Act, 1985, on which reliance is being placed would not be attracted. These provisions would be attracted only in those cases where the police officer has some prior information. If no prior information is there and if search is made then, section 50 of 1985 Act would not be attracted. Reference in this regard be made to the decisions of the Supreme Court of India in the case reported as Slate of Punjab v. Balbir Singh (1994)3 SCC 299. In para 25 it was observed that if a police officer without any prior information as contemplated under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage, section 50 of the 01arcotic Drugs and Psychotropic Substances Act, 1985 would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the Narcotic Drugs and Psychotropic Substances Act. 1985. If he happens to be an empowered officer also, then from that stage on wards he should carry out the investigation in accordance with the other provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. Thus, in the present case, the recovery was made without there being any prior information with the police officer, therefore what was held by the Supreme Court of India vis-a-vis above situation, would be attracted to the facts of this case. It cannot be said that there was any breach of section 50 of the 1985 Act.

It may however, be seen that appellant appears to be on stronger footing on another argument raised by him. The argument is that what was recovered was some dried leaf said to be Ganja. For this reliance is being placed on Ex. P-2. What is received by Chemical Analyst is a packet, containing green leaves with stems and also seeds. Thus, what was said to have been recove