DHARAMBIR SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) APPELLANT Dharambir stands convicted vide impugned judgment of learned Additional Sessions Judge, Sonepat dated 6/7.8.1993 under Section 20(b) of the Narcotic Drugs and Pschotropic Substances Act, 1985 (for short 'the Act'). He has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo RI for two years. Aggrieved by the said judgment of conviction and sentence, he has preferred the instant appeal.

(2.) THE alleged recovery from the appellant is of 250 grams of charas when he was apprehended on 19.7.1992 by ASI Om Parkash PW-4, who along with other police officials was present near the bridge of Kami Road Ganda Naala, Sonipat. Raghbir Singh one independent person from public was also joined in the police party. As per the prosecution case after the appellant was apprehended, he was given a written notice Ex. PC for seeking his option with regard to compliance of Section 50 of the Act. The appellant opted to be searched in the presence of a Gazetted Officer and consequently he was taken to the residence of DSP Rattan Singh. In his presence his personal search was conducted in which 250 grams of charas was recovered. 10 grams of charas was extracted as sample. The sample and the remainder were then sealed with the seal impression of DSP Rattan Singh (RS). Seal after use was handed over to Raghbir Singh PW. All the other formalities were also done there with regard to taking into possession the contraband. On the basis of the ruqa, formal Ex. PA/1 was recorded. Thereafter the Investigating Officer reached the spot, prepared the rough site plan Ex. PE. The appellant was produced along with case property before SHO Rohtas Singh who verified the entire investigation, checked the case property, resealed the same and then handed over to ASI Om Parkash. Sample was sent to the Chemical Examiner on 29.7.1992 and on the receipt of the report, Ex. P-3, the appellant was challaned. He was consequently charged under Section 20(b) of the Act. During the trial the appellant has pleaded his innocence as is clear from the statement recorded under Section 313 of Cr.P.C. However, he did not produce any evidence in his defence. After recording the entire evidence, he now stands convicted and sentenced as indicated above. Hence, this appeal.

(3.) BESIDES pointing out infirmities in the case of the prosecution with regard to delay in sending the sample to the Chemical Examiner and certain other flaws in link evidence, the learned counsel for the appellant has attacked the prosecution case mainly on the ground that the offer allegedly made to the appellant in compliance to Section 50 of the Act, is not a complete offer and therefore, the case of the prosecution falls on this score alone. Dwelling upon her arguments, the learned counsel submits that the notice given to the appellant shows that he was asked by the Investigating Officer Om Parkash PW-4 as to whether he wanted to get himself searched by him (Investigating Officer) or before some gazetted officer, whereas the requirement of Section 50 of the Act is that the accused is to be informed in so many terms that it is his right to be searched in the presence of a gazetted officer or a Magistrate. According to the learned counsel, this is mandatory in nature. Since notice allegedly given to the appellant is not complete in the aforesaid terms, whole of the trial vitiates and the appellant is entitled to acquittal.