UNION TERRITORY, CHANDIGARH Vs. SHAMSHER SINGH

JUDGEMENT

(1.) WHILE standing near the country liquor vend of village Dhanas in the Union Territory of Chandigarh, ASI Radhey Sham of Police Station West, Chandigarh, recovered from conscious physical possession of accused Shamsher Singh on his personal search from inside the pocket of the pant worn by him 10 grams of opium wrapped in glazed paper and placed in an empty match box on being charged with the commission of the offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having been found in possession of 10 grams of opium at 7.30 P.M. On February 11, 1986 without any permit, accessed Shamsher Singh pleaded 'not guilty' thereto, and claimed to be tried. Vide its impugned judgment dated April 28, 1987 trial Court acquitted the accused holding that ASI Radhey Sham was not empowered to search the accused and that independent witnesses of the locality were into joined therein. Feeling aggrieved therefrom Union Territory of Chandigarh (State) has filed Criminal Appeal No. 209 DBA of 1988 in this Court.

(2.) WE have heard Shri R.S. Rai, Advocate for the appellant, nemo for the respondent in spite of due service and have perused the relevant material on record very carefully.

(3.) SECONDLY ASI Radhey Sham-Investigating Officer conducting search of the accused was not specifically empowered by the State to do so in terms of sections 41 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In terms of the observations made in Nilratan Sircar v. Lakshmi Narayan Ram Niwas, AIR 1965 SC 1 and Karam Singh v. State of Punjab, 1983(2) R.C.R.(Criminal) 497 : 1987(1) Recent Criminal Reports 598 recovery of opium by the ASI is of no avail to the prosecution. Furthermore the packet of opium allegedly recovered from the accused was not got sealed from S.I./S.H.O. of Police Station West, Chandigarh, in terms of section 55 of the Act ibid. For violation of the mandatory provisions aforesaid, the edifice built by the prosecution against the accused tumbles down and collapses. Finding of 'not guilty' recorded by the learned trial Court in favour of the respondent is, therefore, affirmed. State appeal filed against his acquittal loses all ground and is, therefore, dismissed. Appeal dismissed.