SHAMSHER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal directed by the accused appellant against the judgment and order dated 23.11.2005 passed by Sh. Fateh Deep Singh, the then Judge, Special Court, Barnala, vide which the accused appellant has been convicted under Section 18 of the NDPS Act for having been found in possession of 1 -1/2 kgs of opium without any licence or permit.

(2.) THE facts as enumerated from the record are that on 24.1.2002 police party headed by SI Sanjiv Goyal, SHO, P.S. Sehna were going in official vehicle No. PB -13 -2148 being driven by Constable Niab Singh for routine patrolling duty cum -checking of suspected bad elements. The police party were going from the side of village Pakhoke towards village Kaire on the metaled road when in the area of village Pakhoke one Gurdev Dass was joined in the police party and while the police party was standing and talking to this witness, at about 2.00 P.M. from the side of village Kaire accused was seen coming on foot alongwith a Jhola (bag) in his right hand.

(3.) ON seeing the police party, he became nervous and turned towards his back and on suspicion he was apprehended. The Investigating Officer disclosed his identity to the accused and told the accused that he suspected the accused of carrying some contraband in his Jhola (bag) and further told the accused that he wanted to conduct his search. He apprised the accused of his legal rights to be searched in the presence of a Gazetted Officer or a Magistrate. The accused gave the consent of his search before a Gazetted Officer and that fact was reduced into writing. Wireless message was sent to DSP Tapa and Sh. Darshan Singh DSP reached at the spot and disclosed his identity and told the accused that there appears to be some suspicious article in the Jhola (bag) for which search was to be conducted and sought consent of the accused if he wanted his search to be conducted in the present of a Magistrate. However, the accused reposed his confidence in the DSP and gave his consent. Consent memo was prepared and signed by the accused. From the personal search of the accused 1 - 1/2 kgs of opium was recovered and two samples each weighing 10 grams were separated and prepared into separate parcels. Samples and case property was duly sealed and were taken into possession vide separate memos. Samples were sent to the Chemical Examiner for analysis and after receipt of the report and after completion of the investigation, challan was presented against the accused. Charge under Section 18 of the NDPS Act was framed against the accused, to which he pleaded not guilty and claimed trial.