STATE OF PUNJAB Vs. MALAK SINGH

JUDGEMENT

(1.) THE challenge in the present appeal is to the judgment of acquittal dated 8.6.1992 passed by the Additional Sessions Judge, Jalandhar acquitting the respondent for an offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The trial Court acquitted the present respondent on two grounds. Firstly, that the Investigating Agency has not complied with the mandatory requirements of Section 50 of the Act as the accused was not informed that he can be produced before a Magistrate or a Gazetted Officer for the purpose of conducting the search and Dharam Pal, independent witness who was joined by the police party, has not been examined as witness and thus, the prosecution version cannot be relied upon.

(2.) AS per prosecution version, the police officials, patrolling in the area on account of Bandh call, met DSP Raj Kishan near Sant Theatre, Jalandhar and proceeded towards Adda Hoshiarpur. In the area of Iqehri Pulli, the accused was spotted coming from the side of Dhan Mohalla. He tried to deviate his path on seeing the police jeep but he was apprehended. The accused was found carrying a bag. He was asked to disclose the contents in it. He stated that it is opium. He was informed that if he wants his search can be conducted before a Magistrate or the D.S.P. and he replied that his search may be conducted before the D.S.P. During search the bag resulted into recovery of 2 kilograms of opium.

(3.) THE findings recorded by the trial court regarding the compliance of the provisions of Section 50 of the Act cannot be sustained in law in view of the judgments reported as AIR 2000 SC 403, AIR 2001 SC 402 and AIR 2001 SC 1002. It is now well settled that the requirement of Section 50 of the Act is to be complied with when search is to be conducted of a "person". Since the recovery of the contraband in the present case was from a bag being carried by the accused, therefore, it cannot be said that the requirement of Section 50 were to be complied with. However, the fact remains that Dharam Pal was joined as an independent witness. However, such independent witness has not been produced in evidence. The statement of police officials appearing is Raj Kishan P.W.1 and DSP Yashpal Singh P.W.2 as contradictory and improbable. The statement of the prosecution witnesses is improvement made over their earlier statements. In an appeal against the acquittal, the jurisdiction of the Appellate Court is to reappreciate the evidence and the Appellate Court can set aside the findings recorded by the trial court only if the findings recorded are not the possible findings in law and suffer from material illegality or irregularity.