RAJ KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) RAJ Kumar, appellant herein, through present appeal filed by him has challenged the order of Additional Sessions Judge, Jalandhar, dated 5.2.1987 vide which he has been held guilty of having committed an offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the Act of 1985). He has been given minimum punishment i.e. to undergo R.I. for a period of ten years and to pay a fine of Rs. one lac. The facts leading to the arrest and conviction of the appellant need a brief mention.

(2.) HEAD Constable Paramjit Singh and Constable Darshan Lal of Police Station Division No. 5, were going on a motor cycle for patrolling on 24.1.1986. When the police party was at a little distance from Gurudwara, Adarshnagar towards JP Nagar, the appellant herein was noticed by them. He was apprehended on suspicion and in the presence of Gurdip Lal, a volunteer of Punjab Home Guards, he was searched. 80 Grams of Charas was recovered from the right pocket of the pant of the appellant herein. 5 Grams of charas was separated as sample and the sample and remaining charas was separately sealed and taken into possession.

(3.) DURING the course of trial, the prosecution version was supported by C Darshan Lal, who appeared as PW -1 and H.C. Paramjit Singh, who appeared as PW -2. There is no need to go into the details of this case as, in view of the settled law that search of an accused should be before a Gazetted Officer or a Magistrate as envisaged under Section 50 of the Act of 1985, this appeal deserves to be allowed. Concededly, in this case, search was done by Head Constable and the appellant was not even offered to be searched in the presence of Gazetted Officer or a Magistrate. That apart, Gurdip Lal, who, even as per the prosecution version was present when the appellant was searched and 80 grants charas was recovered, appeared as DW -1 and stated that nothing was recovered from the appellant in his presence.