STATE OF HARYANA Vs. RAM NIWAS

JUDGEMENT

(1.) THIS appeal of the State of Haryana is directed against the judgment of acquittal rendered by the judicial Magistrate 1st Class, Sirsa dated February 5, 1974.

(2.) BRIEFLY the prosecution story is that on the night intervening June 9/10, 1972, S.I. Braham Dutt (P.W. 2) alongwith constables Pyare Lal and Rattan Singh was present in village Bara Gudha in the course of patrol duty. He received information that Ram Niwas accused and Jugal Kishore were present with opium at the tubewell of Mohan Lal Arora in the area of village Buddhabhana. A raiding party was formed by him with two constables who were already with him and by joining Dayal Singh (P.W. 1) and Gurbachan Singh (P.W. 3)) Thereafter, the party reached the tubewell of Mohan Lal Arora where they found Ram Niwas accused and Jugal Kishore sitting on two charpais near the tubewell. Both of them, it is alleged, on seeing the police party, started running with one bundle each in their hands. They were, however, secured by the police and opium weighing about 2 kilograms was found in the bundle carried by Ram Niwas. A sample weighing 10 gms. was taken from the opium and the remaining opium was put in a tin. The sample and the tin were made into two parcels and sealed.

(3.) THE first contention of the learned Counsel for the State is that the Respondent was carrying a bundle of Opium weighing about 2 kilograms and the learned Magistrate gave him the benefit on the ground that before conducting a search, the S.I. did not offer himself for search to him. He has argued that in case the volume of the article which is to be recovered is such that it cannot be concealed and there is no such voluminous article with the police officer, then it is not necessary for him to offer himself for search to the person to be searched. He has further argued that in the present case, the Respondent was carrying opium weighing about two kilograms in a bundle and a bundle of that size could not be concealed by the Police officer. Consequently, it was not necessary for S.I. Braham Dutt to offer himself for search to the Respondent.