Sarojnei Saksena, J.
1. Accused-appellant has preferred this appeal against the judgment dated 1-10-1986 of Shri N. K. Jain, Sessions Judge, Narnaul, whereby he was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter in short the 'Act') and sentenced to rigorous imprisonment for 10 years with a fine of Rs. one lac, in default to further undergo R.I. for a period of three years.
2. Briefly stated the facts of the case are that on 9-1-1986 Inspector Jai Narain was on patrol duty along with Head Constable Ram Kishan and other police officials in a police jeep. At about 1 p.m. when he was proceeding towards Jhajjar road at Rewari, he saw accused-appellant gambling with another person Madan Lal in front of Everest Metal Works near Tempo Union. Immediately Jai Narain apprehended appellant and Madan Lal, seized articles of gambling from their possession and before arresting the appellant when he took his personal search he found 80 gms. of opium in his left front pocket of the bush-shirt. 5 Gms. of opium was separated for analysis and it was sealed separately. The remaining opium was sealed in a separate packet. He put his own seal on the packets. Immediately Ruqa was sent to the Police Station, Rewari where Manohar Lal. Sub Inspector recorded FIR. Investigating Officer Jai Narain completed the remaining investigation. recorded the statements of witness, prepared a site map and handed over his seal to Head Constable Ram Kishan. Both the sealed packets were deposited in the Police Mulkhun under the care of Sube Singh on that very day. On 16-1-1986 the sealed packet of the sample was handed over by Sube Singh to Pardip Kumar for being delivered in the CFSI for analysis. Laboratory received the sample on20-1-1986 and vide report of the Chemical Examiner Ex.PE it was found to be opium. During trial. Manohar lal (PW-1), HC Ram Kishan (PW.2) and Inspector Jai Narain (PW-3) were examined. Affidavits of Sube Singh, Ex. PC and Pardip Kumar. Ex. PD were tendered in evidence. Chemical Examiner's report is at Ex.PE.
3. The accused denied the guilt and took the patent plea of false implication. He declined to adduce any evidence in defence.
4. Relying on the prosecution evidence, the trial Court held the accused guilty under Section 18 of the Act. convicted and sentenced him as stated above.
5. The appellant's learned counsel contended that the ease was initially registered under the Opium Act though in September 1985 this Act came into force. Hence the prosecution has not followed the mandatory provisions of the Act. There is flagrant violation of provisions of Section 50, 55 and 57 of the Act. These provisions are mandatory. Due to non- compliance with these mandatory provisions, the accused is entitled to be acquitted. He further con tended that at the lime of alleged search and seizure. no independent witness was joined. The Investigating officer did not hand over his seal to any independent witness. Therefore, it is doubtful that before the sample was examined by the Chemical Examiner, it was not tampered with. To support his contentions, he has relied on Wilson Dayal v. State. (1993) 3 Rce. Cri R 54: (1993 Cri LJ 1 188) (Delhi). Chamcli Devi v. State (Delhi). (1993) 3 Rec Cr 566 (Delhi) and Ajit Singh v. State of Punjab, (1984) 2 Rec Cri R 95 (Punj & Har).
6. Learned counsel appearing for the Stale relying on Union Territory, Chandigarh v.Ram Parkash. (1994) 1 Rec Cri R 718, contended that in view of Section 74 and 82 of the Act even if initially the ease was registered under opium Act, it does not cause any dent in the prosecution case. The accused cannot gel any benefit thereto.
7. In Ram Parkash's case (supra) it is held that if: accused is arrested by A.S.I, of Police and contra-band Chains is recovered from him, accused cannot be acquitted on the ground that ASI was not competent to arrest and make search because transitional provision contained in Section 74 of the Act qua the powers to investigate during the period no such powers are conferred under Section 41 and 42 protects the investigation. This Act came into force in September, 1985 and the appellant was apprehended on 9-1-1986. Considering the provisions of Section 74 and 82 of the Act. accused cannot be acquitted simply on the ground that the case was registered under the Opium Act and provisions of the Act were not adhered to.
8. The second objection of the appellant's learned counsel is that provisions of Section 50 were not followed and as these provisions arc mandatory, the accused-appellant is entitled to acquittal. The argument is devoid of any substance. In State of Punjab v. Balbir Singh. (l994)1 Rec Cri R 736 : (1994 Cri LJ 3702) Supreme Court has held that provisions of Section 50 are mandatory, but Section 50 is not attracted in case of chance recovery of Narcotic drugs. In this case also, Jai Narain Inspector found the appellant gambling with Madan, Lal. He immediately apprehended both the persons, seized gambling articles from their possession and prepared a ease under the Gambling Act. Before arresting the appellant when he took his personal search, he found 80 gms. of opium in his pocket of the bush-shirt. Thus, it is a case of chance recovery when Jai Narain was acting under the Criminal Procedure Code in connection with the offence of gambling and when on personal search, he recovered opium from the possession of the appellant, question of complying with Section 50 of the Act did not arise. Hence I find that non observance of the provisions of Section 50 of the Act in this case is not fatal to the prosecution.
9. It is further contended that at the time of alleged search and seizure independent witnesses were not joined and thus even the mandatory provi sions of Section 100(4) of the Criminal Procedure Code were not followed. Inspector Jai Narain (PW-3) and HC Ram Kishan (PW-2) both have deposed that they tried to associate independent witnesses, but they declined. No doubt he has not made such an entry in his zinnia order or in the search and seizure memo, but on that count alone these two witnesses cannot be disbelieved. Further considering the urgency of making a search and seizure, he immediately stalled the investigation of the case registered under the Gambling Act. In that process when he look personal search of the appellant, he found opium in his possession. Considering the facts and circumstances of the case, I find that no independent witness was joined at that juncture. It was not fatal to the prosecution. Further the testimony of these two witnesses Jai Narain (PW-3) and Ram Kishan (PW-2) is worthy of credence. Not even a suggestion was put to them that they have falsely implicated the accused. No oblique motive is attributed to them. Further in Balbir Singh's case (1994 Cri LJ 3702) (supra) the Supreme Court has clearly held that non compliance of provisions of Section 100 and 165 of the Criminal Procedure Code would amount to irregularity and it cannot vitiate trial unless accused was prejudiced by the irregularity. In this case it is not pointed out how accused is prejudiced by non-joining of independent witnesses.
10. The facts of Ajit Singh's case (1984 (2) Rec Cri R 95) (Punj & Har) (supra) are totally different. In that case sample was lying in the Malkhana for about 15 days. Seal was not given to any independent witness Sample was of 10 Gms as per statement of Investigating Officer, but as per report of the Chemical Examiner, the sample was only of 5 Gms. Under these circumstances, it was held that it gave birth to a suspicion that the sample was tampered with while it was lying in the Malkhana.
11. In Wilson Dayal's case (1993 Cri LJ 1188) (Delhi) (supra) sample was sealed with the seal of Investigating Officer, seal of SHO was not affixed. Sample was lying with the Moharrir Malkhana for nearly two months. Independent witness before whom the contraband was weighed was also not examined. Under these circumstances, it was held that the prosecution has not followed Section 55 of the Act. Even the mandatory provisions of Section 50 were not followed and thus the accused was acquitted.
12. In Chameli Devi's case (1993 (3) Rec Cri R 566) (Delhi) (supra) the accused was acquitted as the prosecution failed to comply, with the mandatory provisions of Section 50 of the Act. Even the independent witness examined did not support the prosecution case. Seal after use was not handed over to any independent witness or to some other police official in the raiding party and hence on all these counts, the accused was given benefit of doubt.
13. In this case Jai Narain (PW-3) and Ram Kishan (PW-2) have stated that Jai Narain (PW-3) affixed his seal on the sample of the opium and thereafter other packet was also scaled and then that seal was handed over by Jai Narain to Ram Kishan (PW-2) Hence in the instant case it cannot be said that after the use of the seal, the seal was not handed over by the Investigating Officer to any other person who was a member of the raiding party. It is only by way of abundant caution that this procedure is being adopted though there is no such law that the seal after use should be handed over to any independent witness. This procedure is being evolved to prove beyond doubt that after the sample was sealed at the time of seizure, it was not tampered with till it reached the hands of Chemical Examiner. In the case in hand the sample was sealed on 9-1 -1986. On that very day it was deposited in the Police Station Malkhana under the care and custody of Sube Singh whose affidavit is at Ex. P.C. On 16-1-1986 this sample was handed over to Pardip Kumar who took it to Chemical Examiner. The sample reached the Laboratory on 20-1 -1986. Pardip Kumar's affidavit to that effect is at Ex. PD. In fact instead of submitting affidavits of these two important witnesses, it would have been better if they would have been examined in the Court. Copy of the entry of Malkhana Register should also be filed to dispel all doubts. Thus it is proved beyond doubt that the sample was not tampered with till it reached the Laboratory for analysis.
14. It was also argued that no report of the Chemical Examiner is filed by the prosecution. It seems that the learned counsel appearing for the appellant has not seen the original trial Court's file and has not carefully gone through the judgment of the trial Court. Expert's report is at Ex.PE which was filed in the trial Court. Trial Court has taken this report into consideration and on the basis of the report only he has concluded that the sample contained opium. In this report also, sample seal of Jai Narain appears to have been affixed. The sample was sent on 16-1 -1986 and it reached the Laboratory on 20-1-1986.
15. The last argument is that no information was given to higher officials. Jai Narain (PW-3) and Manohar Lal (PW-1) have admitted that no special report was sent to any higher official. Jai Narain (PW-3) was SHO Police Station City, Rewari on 9-1-1986. Hence he has put his own seal on the seized opium. Section 57 of the Act requires that if any person makes any arrest or seizure under the Act, he shall within 48 hours of such arrest or seizure, send a full report to his immediate official superior. But this provision is not mandatory as is held in Balbir Singh's case (1994 Cri LJ 3702) (SC) (supra). In that judgment, it is held by the Supreme Court that if there is non-compliance of the provisions of Section 52 and 57 of the Act if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.
16. I have discussed in detail the evidence adduced by the prosecution and have come to the conclusion that the evidence is cogent and reliable. The accused has failed to show that any prejudice has been caused to him by non compliance of Section 57 of the Act. Hence I find that the trial Court has rightly believed the prosecution evidence in holding the accused guilty of the said offence.
17. Accordingly the conviction and sentence of the appellant is hereby confirmed. Appeal being meritless is dismissed. The accused is directed to surrender his bail bond to undergo the sentence.