VIKRAM SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is directed against the conviction and sentence imposed by the learned ASJ Ambala in Sessions Case No. 32 of 1997 (Sessions Trial No. 87/87) dated 29.10.88.

(2.) ACCORDING to the prosecution the accused was found coming with a brief case from the side of railway station towards tempo stand where the police was already stationed. On seeing the police immediately the accused returned and wanted to go away. On suspicion he was stopped and search was conducted which resulted in the recovery of 15 kilos of opium wrapped in a glazed paper. Samples were taken and recovery memo was prepared and samples were sealed and after completion of the investigation charge sheet was filed against the accused. On the basis of the material placed before him the learned Magistrate committed the case to Sessions. The learned ASJ Ambala framed a charge sheet under section 18 of the NDPS Act to which the accused pleaded not guilty. The prosecution in order to prove the guilt of the accused examined three witnesses. After closure of the evidence the accused was examined under section 313 Cr.P.C. and in defence two witnesses were examined by the accused. On a consideration of the evidence on record the learned ASJ Ambala convicted the accused for the offence under section 18 of the NDPS Act and sentenced him to undergo RI for a period of 10 years and a fine of Rs. one lac. Aggrieved by the same the accused filed this appeal. The learned counsel for the appellant argued that the provisions of section 50 have been violated and therefore the appellant is entitled to be acquitted of the charge framed against him while the learned AAG argued that there is evidence of PWs 1 and 2 that an offer was made to the accused to be searched in the presence of gazetted officer or a Magistrate and the accused denied the said offer and therefore the search was conducted by the Inspector of Police. Therefore there are no grounds warranting interference with the conviction and sentence imposed by the learned Sessions Judge. It is no doubt true that PW1 who is the Sarpanch in his chief examination stated that an offer was made to the accused whether he wanted to be searched in the presence of a gazetted officer. PW2 also stated that in his evidence. But this is certainly an improvement. The FIR does not contain any averment at all that an offer was made to the accused-appellant whether he wanted to be searched in the presence of a gazetted officer or a Magistrate. The recovery memo which is exhibited as Exhibit PD also does not show that any offer was made. If the FIR and the Exhibit PD do not disclose that any offer was made the statement in the evidence of PWs 1 and 2 is only an improvement on the story of the prosecution.

(3.) THIS appeal is accordingly allowed and the conviction and sentence imposed by the Magistrate are set aside. Appeal allowed.