Point of Law: Narcotic Substances - Conviction Confirmed - Mere witness of seizure has appeared as DW1 does not led to the conclusion that entire prosecution story has to be disbelieved. Trial Court as well as High Court has rightly accepted the seizure, which was held to be in accordance with law.

ORDER

Leave granted.

2. Heard learned counsel for the parties.

3. This appeal has been filed against the judgment of the High Court dated 13.01.2016 in CRA No.S-764-SB of 2003 by which judgment the appeal of the appellant challenging his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as the 'NDPS Act ) has been dismissed.

4. The prosecution case as noticed by the High Court is that on 16.10.1998, S.I. Gurcharan Singh accompanied by ASI Teja Singh, H.C. Major Singh and other police officials was present on the bridge canal minor in the area of village Khanjarwal when Hari Krishan s/o Bhajan Lal r/o village Raikot arrived there. It was about 8.30 a.m., accused-appellant Gurmail Chand was seen coming from the side of village Khanjarwal on scooter bearing registration No.PB-04F-2642. As he tried to slip away, he was stopped on the basis of suspicion. On being enquired about the name and parentage etc., a polythene bag was found lying on the foot mat of the scooter. As the police party got suspected that there is some contraband in the polythene bag, the accused-appellant was given the option of getting the search done before the Magistrate or the Gazetted Officer. The accused-appellant desired the search to be conducted in the presence of some senior police officer. The statement of the accused-appellant was recorded as Ex.PA. Harjit Singh Pannu, DSP, Dakha was called at the spot through wireless message. The DSP arrived at the spot at 9.15 a.m. and he disclosed his identity to the accused-appellant and also apprised him of his rights of search before some other Gazetted Officer or Magistrate. The accused-appellant reposed confidence in the DSP and consent statement of the accused-appellant in this regard was recorded as Ex.PB. On direction of the DSP, Harjit Singh Pannu, SI Gurcharan Singh conducted the search of the polythene bag, from which 10 Kgs. opium was recovered. Two samples of 10 gms. each were separated. Then the samples of the bulk case property were sealed with the seal bearing impression 'GS' pertaining to SI Gurcharan Singh and 'HSP' pertaining to DSP Harjit Singh Pannu. The specimen seal impression was also prepared. The case property was also taken into possession vide recovery memo (Ex.PC). These samples were got tested from the Forensic Sciences Laboratory, Punjab, Chandigarh. Vide report (Ex.PJ), the Forensic Sciences Laboratory, Punjab, Chandigarh, declared that the contents of the samples were of opium.

5. The appellant was charge-sheeted and faced the trial. In support of his case the prosecution examined ASI Teja Singh as PW1, DSP Harjit Singh Pannu as PW2, SI Gurcharan Singh as PW3, Constable Gurpreet Singh as PW4, H.C. Pargat Singh as PW5, Rajesh Kumar as PW6, Amarjit Singh, Registration Clerk in the office of D.T.O., Faridkot as PW7 and R.K. Garg, JMFC, Mansa as PW8. Hari Krishan, who was witness of seizure, had appeared on behalf of the accused as DW1. Appellant's statement under Section 313 Cr.P.C. was recorded.

6. The Trial Court after considering the evidence on record convicted and sentenced the accused vide judgment dated 20.02.2003 under Section 18 of the NDPS Act and he was to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/-, in default thereof to further undergo rigorous imprisonment for two years.

7. Learned counsel for the appellant questioning the judgment of High Court contends that Hari Krishan, who was claimed to be independent witness of the seizure, had appeared as DW1 and had stated that in his presence no seizure was made and he had signed on the blank papers. He further submits that seizure having not been proved in accordance with law, Courts below have committed error in convicting the appellant. He further submits that there is violation of Section 57 of the NDPS Act, since the report was not sent to the Higher Official within the period as prescribed, which has vitiated the entire proc