Judgment

K.G. BALAKRISHNAN, J.- This is an appeal preferred by the State of Punjab against the decision of the Division Bench of the Punjab and Haryana High Court in Criminal Appeal No. 282-SB of 1995. By the impugned judgment, the learned Single Judge acquitted the respondent for the offence under Section 18 of the NDPS Act, 1985.

2. The prosecution case was that on 17-5-1992, the Station House Officer

of Police Station Valtoha, accompanied by ASI Nirmal Singh and LC Balwinder Singh were proceeding from Amarkot to Mehmoodpura on patrol duty. When they reached Mehmoodpura, they saw accused Swaran Singh coming from the opposite side. On seeing the police party, the accused sat down by the side of the road as if to answer the call of nature. Accused Swaran Singh was apprehended and he was told that he was to be searched and if he so desired the search would be conducted in the presence of a Gazetted Officer or a Magistrate. The accused did not desire to be searched in the presence of a Gazetted Officer or Magistrate.

3. On being searched, the accused was found carrying a plastic bag and

on further search it was revealed that the bag contained a packet wrapped in glazed paper. The contents of the bag were suspected to be opium. The substance weighed about 5 kg out of which a quantity of 10 grams was taken for the purpose of sampling. The sample as well as the remaining quantity of e the recovered substance were sealed and taken into possession by the investigating officer. This sample was entrusted to Police Station Valtoha where the formal first information report was registered. The property recovered from the accused along with the samples was kept in the malkhana. Subsequently the sample was sent for analysis to the Forensic Science

Laboratory and Exhibit PF certificate confirmed the sample to be opium.

4. On the side of the prosecution, PW 1 to PW 5 were examined., Before the Sessions Court, the accused raised several pleas including the violation of Section 50 of the NDPS Act. The Sessions Judge held that the recovery of opium was fully proved and the defence version that it was a false case was not correct and that the accused had thus committed the offence punishable under Section 18 of the NDPS Act.

5. Challenging his conviction, the respondent-accused preferred an appeal before the High Court. The learned counsel for the accused raised a plea that the evidence of PW 1 ASI Harbhajan Singh and the evidence of PW 4 MHC GuIzar Singh and the contents of the affidavit of Constable Anup Singh Ext. PB were not put to the accused while he was examined under Section 313 CrPC. Therefore, these items of evidence could not have been used against the accused and based on the decision of the Punjab and Haryana High Court in Darshan Singh v. State of Punjab! the accused was acquitted of all the charges. This is challenged before us.

6. We heard the learned counsel for the appellant State and the learned counsel for the respondent.

7. The evidence of PW 1 was to the effect that on 17-5-1992, Inspector Suba Singh handed over to him two sealed parcels pertaining to this case bearing the impression SS along with one bag and that the property was kept in the malkhana by him. On 9-6-1992, he handed over the property to

b PW 4 MHC GuIzar Singh. During this period, there was no tampering with the seal of the packets. PW 4 MHC GuIzar Singh deposed that he had taken charge of the property of this case on 9-6-1992 and the property consisted of two parcels bearing the seal SS and that the samples were sealed and he had sent the same for chemical examination on 23-6-1992 through Constable

Anup Singh. During this period, the case property remained in his possession and it was not tampered. The respondent-accused was examined under Section 313 CrPC and he was put the following questions:

Q. It is in evidence against you that on your personal search by Inspector Suba Singh, a plastic bag, Ext. P-2 containing opium wrapped in a glazed paper was recovered,