MAHABIR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal arises out of the following facts: On 31st January, 1986 at about 1 A.M. Head Constable Surinder Singh (P.W -2) was present along with other police constables and Jiwan Lal P.W -1 close to the tea -stall at Railway Platform No. 4, Rewari, when he saw the accused coming from the side of the station building d and proceeding towards the train. On seeing the police party on suspicion, he was stopped and searched and the he was found in possession of 1Kg. and 200 grmas of opium wrapped in a Parna in a bag. A sample from the recovered opium was separated and sent for analysis to the Chemical Examiner, Karnal, who found the same to be opium. After completion of the investigation, the accused was challenged and was charged under Section 18 of the Narcotic Drugs and Psyhcotropic Sub - stances Act, 1987 (for short the 'Act').

(2.) THE prosecution in support of its case relied on the evidence of Jiwan Lal (PW -1) and Head Constable Surender Singh (PW -2) and they both deposed about the recovery of the opium from the possession of the accused in the manner stated above and the subsequent steps taken in connection with the investigation. The accused when examined under Section 313 Cr. P.C. denied the recovery of opium and alleged that he had been apprehended in a different way and thereafter falsely implicated at the instance of the police. He also produced two defence witnesses in his favour.

(3.) THE Trial court came to the conclusion that the evidence produced by the prosecution inspired confidence; and that the recovery from the counsel was so large in quantity that it could not have been planted. The trial Court also held that though the provisions of Section 50 of the Narcotic Act which were mandatory, had not been complied with yet this non -compliance was not fatal to the prosecution case it was for the accused to have expressed his desire that he should be produced and searched before a gazetted officer or a Magistrate and as such this omission was not fatal to the prosecution and accordingly convicted and sentenced the appellant to undergo R.I. for a period of ten years and also to the payment of a fine of Rs. 1 lac or in default of payment of fine to further undergo R.I. for two years. Hence this appeal.