The provisions of Section 50(1), 52(1), and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 100(4) of the Code of Criminal Procedure are mandatory and non-compliance with these provisions renders the search and seizure illegal, and any evidence obtained as a result of such illegal search and seizure cannot be used against the accused.

Devinder Gupta, J.—This appeal by accused-appellant is against the judgment dated 29th of June, 1990 of Sessions Judge, Solan convicting him for offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of rupees one lac and in the event of non-payment of fine, to undergo further rigorous imprisonment for a period of three years.

2. Prosecution case, in brief, is that on 19th of March, 1989, at 5.30 p. m., when PW 6 Gurmit Singh Sub-Inspector, S H. O. Police Station Kasauli was on patrol duty at Barotiwala alongwith Sub-Inspector Mehar Singh, Head constables Ram Kumar and Gurbux Singh and constables Jaswinder and Amrik Singh, a secret information was received by him that accused was dealing in opium and in case his premises are raided and searched, he can be apprehended red-handed. On receiving such information, PW 6 formed a raiding party constituting the aforementioned police officials and also joining with him at Barotiwala Jeet Singh (PW 1) and Darshan Sharma (PW 5). This party when reached near the house of accused situated in village Kotla, they found him standing in his court-yard with one bag on his right shoulder. On noticing them, he tried to run away. It is further the case of the prosecution that the moment accused tried to run away towards forest, he was over-powered and was questioned. Since he was to be searched, therefore, when PW 6 asked him if he wanted to be taken before a Gazetted Officer for being searched, the accused agreed for the search to be conducted by PW 6 on the spot- On being searched, one bag was recovered from the accused inside which opium weighing 1 kg. 20 gms. was found in a polythene envelope. Five gms. out of the same was kept apart by way of sample and the sample as well as the remaining contents were thereafter sealed. It was taken into possession through recovery memo Ex. PB. PW 6 prepared site plan Ex PG and simultaneously sent ruqa Ex. PD on the basis of which FIR Ex PD/l was also registered. Necessary report Ex. PH of the entire proceeding was thereafter forwarded to Deputy Superintendent of Police. On completion of investigation and on receipt of report of Chemical Examiner Ex. PJ, challan Ext. PK was presented in the Court of Chief Judicial Magistrate, Solan, who committed the accused to the Court of Sessions Judge, Solan, where he was charged and tried for the aforementioned offence.

3. Prosecution examined the aforementioned two witnesses stated to be independent witnesses, namely, Jit Singh (PW 1), Darshan Sharma (PW 5) besides the Investigating Officer Gurmit Singh (PW 6). The accused when questioned under section 313 of the Code of Criminal Procedure denied the charges and claimed that he was neither apprehended, nor any raid as alleged was conducted in his house and also stated that recovery of opium was fake one. According to the accused, he was called to the Police Station where he was made to sign a blank paper. The Sessions Judge finding the requirements of sub-section (1) of section 51 and section 57 having been complied with, held charge to have been duly proved by the prosecution, convicted the accused for the aforementioned offences and sentenced him as above. The accused has preferred this appeal challenging his conviction and sentence.

4. It has been contended that neither there is any compliance to the provisions of sub-section (1) of section 52 and section 57 of the Act, nor provisions of section 100 of the Code of Criminal Procedure have been followed. Non-compliance of these provisions has not only caused material prejudice to the accused but also makes the entire prosecution case doubtful and improbable. It is further contended that PW 1 and PW 5 are neither inhabitants of the locality, nor in the facts and circumstances of the case can be said to be independent witnesses and failure to associate two or more i