IMPORTANT POINT
In drug offence accused cannot escape punishment where search and seizure is convincingly proved.

JUDGMENT :

Uday U. Lalit, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 11.12.2014 passed by the High Court of Punjab and Haryana dismissing Criminal Appeal No. S-318-SB of 2004 preferred by the appellant against his conviction under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) for being in possession of 1 kg of opium without any permit or licence.

3. According to the prosecution PW6 SI Satbir Singh was on usual patrol duty on 24.06.2002 along with other police officials at bus stand of village Bichpar, Distt Sonipat. Secret information was received by him that the appellant was selling opium and was roaming in the village in search of customers. This information was reduced to writing in the form of Ruqa Ext. PF and was sent to the Police Station for information, whereupon DDR Ext. PC was recorded. PW6 Satbir and other police officials reached the bus stand and saw the appellant coming from village Gangana side. He was apprehended. The appellant was told that he was suspected to be carrying opium in his possession and as such his personal search had to be undertaken and that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant was given an appropriate notice vide Ext. PA under Section 50 of the Act and by his reply Ext. PA/1 he opted to be searched before a Gazetted Officer.

4. Thereafter a wireless message was sent to PW4 Shyam Singh Rana, DSP Gohana who reached the spot. The appellant was produced before him and PW4 was also acquainted with the facts of the case. Thereafter, on the instructions of PW4, personal search of the appellant was undertaken which resulted in recovery of opium from the possession of the appellant. The opium was found in a polythene bag tied in a cloth around the stomach of the appellant. On weighment, it was found to be 1kg 50gms. A sample was taken and put in a small plastic bag while the remainder was put in a bag of cloth. The sample and the remainder were separately sealed and taken in possession vide memo Ext. PB. The seal was then handed over to PW1 ASI Bishamber Lal. Thereafter Ruqa Ext. PC was sent to the Police Station for registration of crime, whereupon FIR Ext. PC was recorded by PW2 Head Constable Om Parkash.

5. The appellant along with the case property was produced before PW3 Yad Ram SHO of Police Station who verified the fact and put his own seal bearing impression “YR” on the sample as well as on the remainder. Thereafter the sealed case property was handed over to the Investigating Officer who deposited the same with Malkhana. In due course of time the FSL report Ext. PD was received wherein it was opined that the sample in question was opium. After completion of investigation the appellant was charge-sheeted and tried for having committed the offence punishable under Section 18 of the Act.

6. The prosecution in support of its case examined six witnesses. PW1 ASI Bishamber Lal stated as under:-

“As contraband article was suspected with the accused so he was served with a notice Ext. PA to opt about his search before a Gazetted Officer or a Magistrate, which is bearing my signatures. Accused opted for his search before a Gazetted officer vide endorsement Ex. PA/1 which is bearing my signatures.”

PW2 Head Constable Om Parkash in his deposition stated as under:-

“On that day ASI Bishamber Lal deposited the case property with me, which was sealed with seal SS.”

Pw 3 SI Yad Ram in his deposition stated as under:-

“On 24.06.2002, I was posted SI/HO P.S. Baroda. On that day SI Satbir Singh had produced the accused now present in the court, two sealed parcels and the witnesses before me. I verified the investigation and affixed my own bearing inscription “YR”. I directed SI Satbir Singh to deposit the case property with seals intact with the MHC P.S. Baroda.”

PW4 Shyam Singh Rana DSP stated as under:-

“I directed SI Satbir Singh to carry out the search of the