Sarojnei Saksena, J.
1. Accused-appellant has preferred this Criminal Appeal against his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') recorded in Sessions Case No. 7 of 1986 by Shri R.N. Batra, Additional Sessions Judge, Bhiwani.
2. The factual matrix of the case is that on 16-2-1986, the accused was traveling in Haryana Road ways Bus, when this bus stopped at bus stand Jhupa, Head Constable Dharambir accompanied by other police constables checked the said bus. He found that the accused sitting on the rear seat of the bus, putting a bedding on his thighs. Head Constable Dharambir checked this bedding Ex. P. 5. It contained one blanket Ex. P. 1, three shawls Ex. P2 to Ex. P4 and opium which was wrapped in a wax paper. Accused was made to alight from the bus. On weighment, opium was of 10 kilograms. 10 grams of opium was taken out as a sample. Two packages were prepared and were sealed with the seal of 'DB'. Remaining opium Ex. P. 7 was sealed in a tin box. After use seal was handed over to Constable Prem Singh. All these articles were seized vide seizure memo Ex. PA. on personal search, Rs. 36050, one wrist watch and a key of brass were recovered from the possession of the accused. Rugga Ex. PC was sent. Case was registered by Pala Ram MHC, Police Station Sewani. Rough site plan was prepared at the spot. On return to the Police Station, case property was handed over to MHC, Police Station Sewani, with seals intact. Sample was sent to the Chemical Examiner, whose report is at Ex. PE. As per this report, sample contained opium. On these facts, charge under Section 18 of the Act was framed against the accused.
3. Accused pleaded not guilty. His plea is that he was travelling by that bus and was going to Punjab in connection of his business. He dropped at Sewani, where he was illegally detained bay the police officials. They found Rs. 36050/- with him. He explained possession of this huge amount with him but police officials were not satisfied. He raised hue and cry. Certain respectable intervened. To save of their own skin, these Police-walas implicated him in this false case. He did not adduce any evidence in defence.
4. During trial, prosecution examined three witnesses. Report of the Chemical analysis was submitted. Relying on the prosecution evidence, the trial Court held that the accused was having in his possession 10 kilogram opium without any licence. Thus, he was held guilty under Section 18 of the Act and was sentenced to 10 years rigorous imprisonment with a fine of Rs. 1,00,0007- and in default to undergo further rigorous imprisonment was two years.
5. Appellant's learned counsel raised only three objections firstly that mandatory provision of Section 50 was not complied with, secondly sample was not examined by authorised Chemical Examiner as per Rule 2(c) of the Narcotic Drugs and Psychotropic Substances Rules, 1985 and lastly that independent witnesses were not joined, therefore, the statement of the police witnesses should not have been relied on. to support his first contention, he has relied on Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994 (3) Recent CR 595.
6. Learned counsel appearing for the State con tended that as it was a case of chance recovery provisions of Section 50 were not to be complied with. The provision of Section 74 of the Act protects the investigation made by the Head Constable and Rule 2(2) of the said Rules do not apply in this case. Chemical Analysis of the seized opium can be made at any laboratory in the countary to expedite investigation in trial. In support of this contention, she has relied on Ram Dayal v. Central Narcotic Bureau, Gwalior, 1993 (1) Recent Criminal Reports 264.
7. Ali Mustaffa's case 1994 (3) Recent CR 595 (supra), is distinguishable on facts. In that case, the Investigating Officer received reliable information that the accused is having charas in his possession who is sitting in Quilon Railway Station, first class waiting room. The Investigating Officer in the company of other police officals went to this waiting room. On suspicion, accused was questioned and charas was seized from his possession. But in this case, Investigating Officer Dharambir was not having any such secret information. Dharambir PW3 has, stated on oath that he was on patrol duty and excise checking. In due course of that checking process, he found the accused sitting in the bus with a bedding on his thighs. In a routine way of checking when he checked his bedding, he found it contained the contraband opium. Hence, this is a case of chance recovery. Their Lordships of the Supreme Court has mandated in State of Punjab v. Balbir Singh, 1994 (1) RCR 737, that in the case of chance recovery, provisions of Section 50 are not attracted. Hence, I find that on this count, the trial Court's judgment does not suffer from any illegality or infirmity.
8. The Full Bench of M.P. High Court in Ram Dayal' s case 1993 (1) RCR 264 (supra) has considered this aspect whether such contraband opium should be examined by Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or, Ghazipur. It is held that Rule 2(c) has defined Chemical Examiner and names Neemuch and Ghazipur as places where there are 'Government Opium and Alkaloid Works' but that definition is meant for the purpose of Chapter III of the said Rules for analysis of samples of lawfully cultivated and produced opium, as contemplated under Rule 22. It is further held that there is no provision in the said Rules or in the Act debarring chemical analysis of unlawfully possessed opium seized in connection with an offence elsewhere at any other laboratory in the country as would expedite investigation and trial. A bare perusal of these Rules indicate that they are not meant for examination of such seized opium to be done by Chemical Examiner as defined in Section 2(c) of the said Rules. Hence, even this objection falls to the ground that the Chemical Examiner report Ex.PE is not a valid and legal report.
9. No doubt, while making such a search and seizure, independent witnesses should be joined, but in this case Dharambir PW. 3 has clearly stated that he requested not only the driver and conductor of the said but but also other persons present there to join investigation, but they all declined. No doubt, no action has been taken against those persons but on that count alone above statement of Dharambir PW. 3 cannot be held unreliable and not worthy of credence. No oblique motive is attributed to Prem Singh PW. 2 and Dharambir PW. 3 The accused was in possession of 10 kilogram of opium. It can't be a case of plantation. The statement of these two witnesses are wholly reliable. There are few contradictions in the statements of these two witnesses but they are not material as is held by the trial Court. The reasoning is not at all perverse and no prejudice is caused to the accused.
10. Lastly, it is contended that provisions of Section 52, 53 and 57 are not complied with. As per Balbir Singh's case 1994 (I) RCR 737 (supra) they are not mandatory provisions. They are only directory in nature and unless, it is shown by the accused that by their non-compliance, some prejudice has been caused to him this infirmity in the investigation will not help him.
11. No other point is pressed before me
12. Accordingly, finding the appeal meritless, it is hereby dismissed. Appellant's conviction and sentence is confirmed. He should surrender to under go the sentence.