DHARMINDER KUMAR JAIN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) DHARMINDER Jain has filed this appeal to challenge his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act by the learned Additional Sessions Judge, Patiala vide judgment dated August 4, 1998 for possessing 620 gms of opium. He has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo rigorous imprisonment for two years.

(2.) BRIEF facts of the case are that on May 23, 1997 a police party headed by ASI Chuni Lal was on a routine patrol and was proceeding from Gurbax Colony, Patiala towards the new Rajpura Road Octroi post. When they reached near the Government Polytechnic they saw the appellant coming from the opposite side carrying a bag. The appellant on seeing the police became nervous and was stopped by the A.S.I. The appellant was told that his bag was to be searched and if he wished a Gazetted Officer could be called for the purpose. The appellant replied that he would get his bag searched in the presence of a higher police officer whereupon Shri Paramvir Singh Gill, D.S.P. was called to the spot. Shri Gill reached the spot and disclosed his identity to the appellant and also informed the appellant that if he wanted some Magistrate could be called to the spot for his search. The appellant reposed full confidence in the D.S.P. Thereupon the bag was searched and it was found to contain 620 gms of opium wrapped in glazed paper. Thereafter, the various steps in the investigation were undertaken, two samples were taken out, the case property was sealed and recovery memo was prepared. Report was sent to the Police Station on the basis of which case was registered. On the following day, the case property was produced before the Chief Judicial Magistrate, who also put his seals. On chemical analysis it was confirmed that the recovered drug was indeed opium. After completion of the investigation, the appellant was sent up for trial.

(3.) THE main ground for challenge in this appeal is that the appellant was never informed by Shri Paramvir Singh Gill D.S.P. (PW-2) that he had a right to be searched in the presence of a gazetted officer or a Magistrate. Shri Gill only asked the appellant whether he wanted the search effected from the Magistrate and the appellant replied that he had faith in Shri Gill. Earlier to this, A.S.I. Chuni Lal (PW.1) had told him that he was to take the search of his bag and in case it was not acceptable to him then some police officer or magistrate could be called. The appellant had replied that he wanted to be searched by some higher police officer whereupon Shri Gill was called. According to the counsel, this procedure was not in accordance with Section 50 of the Act.