Judgment :-

H.L. Dattu, J.

This appeal, is directed against the judgment and order of the High Court of Punjab and Haryana in Criminal Appeal No. 926-SB of 1997 dated 7.12.2007, whereby and where under, the High Court has upheld the conviction of the appellant by the Additional Sessions Judge, Kurukshetra, vide judgment and order dated 5.11.1997/6.11.1997 in Sessions Case No. 14 of 1996, for offences punishable under Section 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985.

2) The factual matrix of the case is as under : That on 24.1.1996, ASI Maya Ram accompanied by other police officials, namely, Head Constable Raja Ram and Constables Gian Chand and Shyam Singh was on patrol duty. The said police party was present near the Markanda Bridge when the accused along with another person Randhir Singh were seen coming from the side of Ismailabad. On seeing the police party, the appellant and other person Randhir Singh made an attempt to turn back and escape. However, the police over-powered them as their activities were found suspicious. Thereafter, they were served with a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) vide memo (Ex.PD) giving an option to them to be searched either by the Gazetted officer or the Magistrate. They signed the memo by making the choice to be searched by the Gazetted officer and they were arrested by the Head Constable Raja Ram and C-1 Gian Chand. Both of them were produced before the then D.S.P., Pehowa, Shri Paramjit Singh Ahalawat who is a Gazetted Officer, and on his direction, the bag that they were carrying was searched before him. The bag that was carried by the appellant on his shoulder was found to be containing 500 grams of charas wrapped in wax paper. Out of that, 50 grams of charas was taken as sample. Thereafter, the sample and residue were sealed separately with seal MR of the Investigating Officer and PSA of the D.S.P. Seal MR was handed over to HC Raja Ram while seal PSA was retained by the D.S.P. himself. FIR was registered being Case F.I.R. No. 14 dated 24.1.1996 and the property was taken into possession by drawing a mahazar. The rough site plan was also prepared and the accused was arrested after informing the grounds of arrest. The statements of witnesses were recorded and challan was issued on receipt of the report of the Chemical Examiner Exhibit PH. The accused was charge-sheeted under Section 20 of the Act and he pleaded not guilty and claimed trial. The other person who was also apprehended on the same day, was also charge-sheeted and tried separately.

CASE OF PROSECUTION BEFORE THE TRIAL COURT:

3) The prosecution examined Constable Balkar Singh PW-1, MHC Som Nath PW-2, DSP Paramjit Singh Ahalawat PW-3, Head Constable Raja Ram PW-4, ASI Maya Ram PW-5 and SI Dilpanjir Singh PW-6. The prosecution also got market the Chemical Examination Report and closed the prosecution evidence. The accused was called upon to lead evidence in defence, if any. The statement of the accused under Section 313 of the Criminal Procedure Code was recorded by putting incriminating evidence against him. Being confronted with incriminating circumstance appearing against him, the accused pleaded innocence and false implication.

4) The case of the appellant before the Sessions Court :

a) that there was no strict compliance of the Section 50 of the Act.

b) independent witnesses not joined and associated during the search.

c) that the accused was falsely implicated in the case.

DECISION OF SESSIONS COURT:

5) The Additional Session Judge has observed that the accused was given an option, whether he should be searched by a Gazetted officer or a Magistrate and after obtaining his option, he was produced before Deputy Superintendent of Police, who is a Gazetted Officer and on his direction the accused was searched and, therefore, there is compliance of Section 50 of the Act. Secondly, the prosecution has shown that there were e