RAJESH KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal is directed against the conviction and sentence imposed by the learned ASJ Amritsar in Sessions Case No. 16 of 88 dated 30.1.1990 for the offence u/s 18 of the NDPS Act (hereinafter refered to as the Act).

(2.) According to the case of the prosecution on 3.8.1988 ASI Mohinder Singh along with HC and other constables held a Naka on the drain bridge in village Wadala Bihtewad. At about 5.30 the accused Rajesh Kumar along with another by name Vijay Kumar came from the side of the village and they were stopped on suspicion and they were enquired whether they were in possession of any contraband or articles and whether they would like to be searched before the Gazetted Officer or a Magistrate then the accused and his companion deposed confidence in the police. Thereafter ASI Mohinder Singh made a personal search of the accused which resulted in the recovery of 10 Kgs. of opium and 10 grams of opium was wrapped in the glazed paper from a bag. 10 grams of opium was separated and sealed separately. The remaining opium was kept in a tin and it was sealed separately. On the basis of the report sent by the ASI a case was registered in FIR No. 328 of 88 of PS Sadar Amritsar and the investigation was taken up. After completion of the investigation a charge-sheet was filed against the accused. After committal the learned ASJ framed charges against the accused for the offence u/s 18 of the Act. In order to prove the guilt of the accused the prosecution examined 4 witnesses. After the closure of the evidence of the prosecution the accused were examined u/s 313 Cr.P C to which they stated that they have been falsely implicated in the case. In defence the accused did not adduce any evidence. On a consideration of the evidence on record the learned ASJ Amritsar convicted the accused for the offence u/s 18 of the Act and sentenced him to undergo RI for a period of 10 years and a fine of Rs. 1 lac. Hence this appeal.

(3.) PW 1 was the Head Constable who was present along with the ASI. According to him at about 5.30 am two persons were stopped when they were coming from the village side of Wadala Bihtewad when they tried to run away from that place. The accused Rajesh Kumar was one of them and he was asked whether he was in possession of any contraband and was asked whether he would like to be scarched in the presence of a Gazetted Officer or a Magistrate but he showed his confidence in them. Accordingly the ASI Mohinder Singh conducted the search which resulted in the recovery of 100 grams of opium wrapped in a glazed paper. Then AST took sample of 10 grams and sealed the same. He also deposed that 10 grams of opium was recovered from the possession of Vijay Kumar along with the accused. PW2 is the ASI who effected the search of the person. He also deposed that he stopped the accused and Vijay Kumar when they were coming from the side of the village on suspicion. He wanted to search them and asked if they wanted to be searched in the presence of a Gazetted Officer or a Magistrate. The accused opted to be searched by the ASI. Accordingly the ASI searched the person of the accused which resulted in the recovery of 10 Kilograms of opium. 10 grams of opium was wrapped in a glazed paper. He took a sample of 10 grams and sealed the same and the remaining opium was kept in a tin and it was sealed. PW 1 in his cross-examination clearly stated that he did not try to associate any independent witness from the public. He also stated that he does not remember whether any statement of the accused was recorded and whether any writing was made in regard to the offer made to the accused and whether they would like to be searched in the presence of Gazetted Officer or a Magistrate. It is also in his evidence that his statement was not recorded by SHO and the SHO has also not recorded where the case property was produced before him. PW2 also stated that he did not associate any independent witness in regard to the search. He also admitted that he has not recorded in the report which forms the registration of the case that any offer was made to the accused in regard to the search to be conducted in the presence of a Gazetted Officer or a Magistrate. Except the evidence of PWs. 1 and 2 the prosecution has not adduced any other evidence in order to prove the guilt of the accused. The evidence of PWs. 3 and 4 cannot be read in evidence as they have not been examined in the Court. Thus it is clear from the evidence for record that no independent witness has been associated for the recovery of opium. Apart from that there is nothing on record to show that any offer was made to the accused whether they wanted to be searched in the presence of a Gazetted Officer or a Magistrate. In the absence of anything in writing I am not able to place reliance on the testimony or PWs. 1 and 2. It is no doubt true that the offer need not be in writing but the prosecution must prove to the satisfaction of the Court that in fact the offer was made to the accused about his right to be searched in the presence of a Gazetted Officer or a Magistrate. I am, therefore, of the opinion that the provisions of section 50 of the Act have not been complied with. Therefore the accused are entitled to be acquitted in view of the decision of the Supreme Court in State of Punjab v. Baldev Singh, 1999 4 JT 595.