GANPAT RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant has challenged his conviction under Section 8 read with Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' in short) by judgement dt. 29-6-95 passed by learned Addl. Sessions Judge, Ratangarh. The petitioner has been sentenced to undergo ten years R.I. and a fine of Rs. 1,00,000/- or in default to undergo two years R.I.

(2.) The prosecution case is that Shri Raghuveer Singh SHO Sridoongargarh received Mukhbir information at 5 p.m. on 9-9-91 that the appellant Ganpat Ram is engaged in illicit trade of opium husk and the appellant has in his possession contraband opium husk. Thereupon PW 7 Raghuveer Singh with his party and two motbir witnesses reached near the house of one Ganpatsingh and saw the appellant coming with a bag on his shoulder. A notice under Section 50 of NDPS Act was served upon the appellant who gave his consent to be searched by SHO Raghuveer Singh. On conducting a search of the appellant, 33 Kg 500 gms opium husk was recovered. A sample of 500 gms was taken and sealed on the spot. The remaining article was also sealed in a bag and the appellant was arrested by Ex. P-2. After usual investigation a challan was submitted against the appellant and trial took place for the charge under Section 8 read with Section 15 of NDPS Act.

(3.) I have heard the learned counsel for the appellant and learned Public Prosecutor. Learned counsel for the appellant has vehemently argued that compliance of Section 42 of NDPS Act has not been made in this case and therefore on account of non compliance of mandatory provisions the appellant cannot be convicted. Learned Public Prosecutor has contended that recovery has not been effected from any building, conveyance or enclosed place and therefore the provisions of Section 42 of NDPS Act are not applicable.