STATE OF PUNJAB Vs. SEWA SINGH

JUDGEMENT

(1.) SEWA Singh accused was intercepted by a police party headed by Head Constable Rai Singh (PW 1) while patrolling the area of village Rattakhera. On effecting personal search of the accused, opium wrapped in a glazed paper and being carried in a bag was recovered from the right hand of the accused and when weighed, the opium was found to be 500 grams. A sample of 10 grams was taken out of the lot. The sample and the remaining material was sealed in a separate parcel and taken into possession by the police. Rough site plan (Exhibit PB) was prepared and on the receipt of ruqa (Exhibit PC), formal FIR (Exhibit PC/1) was recorded in the police station, Lehra. The sample on being examined by the Chemical Examiner was opined to be opium vide report Exhibit PD. The accused was challaned under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 after completion of the investigation. In due course, the accused was committed to court of session for trial. The trial court framed charge under Section 18 of the said Act which he denied and claimed trial.

(2.) THE prosecution examined only one witness in the court namely; Head Constable Rai Singh PW 1 to prove the recovery of opium from the possession of the accused. Affidavit of MHC Maghar Singh has also been tendered. Remaining prosecution witnesses cited in report under Section 173, Criminal Procedure Code have not been examined. When examined under Section 313, Criminal Procedure Code and after the closure of the prosecution evidence, the accused denied all the circumstances appearing against him in evidence and claimed false implication.

(3.) ADMITTEDLY , the opium in question was recovered from the possession of the accused on January 20, 1986 when Narcotic Drugs and Psychotropic Substances Act, 1985 had already come into operation, repealing the Opium Act, 1878. It is not disputed by the State Counsel that the Investigating Officer was to investigate under the provisions of NDPS act, 1985. Apparently, in view of this each on the part of the Investigating Officer, the entire investigation is bad in law. Even a perusal of the statement of Head Constable Rai Singh (PW 1) (only one witness examined), shows flagrant violation of the mandatory provisions of the N.D.P.S Act, 1985 particularly its Section 50 as neither any independent witness was joined in the investigation nor the accused was afforded an opportunity of his choice to be produced before a Gazetted Officer or a Magistrate at a nearby place for effecting search from his person. Desirability of joining of any independent witness and compliance of mandatory provisions of Section 50 of the Act have been considered by a Division Bench of this court in a case reported as Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525. This decision is squarely applicable to the facts of the case in hand.