The court held that the failure of the prosecution to join independent witnesses at the time of search and seizure, coupled with the contradictory and unreliable statements of the prosecution witnesses, entitled the appellant to the benefit of doubt and acquittal.

Dr. Sarojnei Saksena, J.

1. Appellant-accused is convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) for possessing 250 grams of opium without a licence and is convicted and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. One Lac and in default of payment of fine to undergo further rigorous imprisonment for 3 years. He has filed this jail appeal against that conviction and sentence.

2. Brief facts of the case are that on the intervening night of 1/2.1.1986 Sub Inspector Zile Singh was on patrol duty-along with Head Constable Jagmal Singh and constables Dharam Pal and Mansa Ram at Garhi Bolni Chowk, Rewari. The accused was going from the side of the workshop. On seeing the police party, he tried to retrace his steps. Zile Singh apprehended the accused. He was found carrying jerican containing illicit liquor. When his personal search was taken, it was found that he was having 250 grams of opium wrapped in a wax paper in the inner pocket of his coat. Sample of 5 grams was separated. Opium was weighed and sealed in two small parcels. They were sealed with the seal of Zile Singh. Ruqa was sent to the Police Station. On the basis of the ruqa, FIR was registered. After completing the usual investigation at the spot, accused and the seized contraband were brought to the Police Station. The case property was deposited in the Malkhana. Thereafter, sample was sent to the Chemical Examiner, who after analysis confirmed that it was opium. On these facts, challan was filed.

3. Accused denied the guilt. His plea was that Zile Singh asked him to take him in his rickshaw without paying fare for it. As he declined, he has been falsely implicated in this case. He did not adduce any evidence in defence.

4. Prosecution examined Zile Singh PW.2 and Dharam Pal PW.1 tendered affidavits of Moharrir Head Constable and Constable as well as the report of the Chemical Examiner in evidence. The trial Court relying on the prosecution evidence held the appellant guilty of the said offence, convicted and sentenced him accordingly

5. The learned counsel appearing for the appellant contended that in this case provisions of section 50 of the Act were not complied with. Zile Singh was going on patrol duty at the relevant time when on suspicion, he apprehended the accused. He ought to have apprised him of his statutory right to give his personal search either before a Gazetted Officer or a Magistrate. Since this mandatory provision is not complied with, the whole of the trial is vitiated and the appellant is entitled to acquittal.

6. This contention has little force. The Apex Court in State of Punjab v. Balbir Singh, 1994(1) RecentCR 736 has held that in case of a chance recovery, the provisions of section 50 of the Act are not attracted. From the evidence of Zile Singh PW.2 and Dharam Pal PW1, it is evident that at that hour of night, they were going on patrol duty. They were not having any secret information or Zile Singh was not having any reason to believe from personal knowledge that accused was carrying opium. Hence, the provisions of Section 50 of the Act are not attracted.

7. It is vehemently contended by the learned Counsel that no independent witness was joined by Zile Singh before taking personal search of the accused. Hence, on this count also accused is entitled to acquittal as the statements of these official witnesses do not inspire confidence and there is no corroboration from any independent source. Provisions of Section 100(4) of the Code of Criminal Procedure are applicable when such search is made but it is not mandatory. It depends on the facts and circumstances of the case. If the Investigating Officer had no time or opportunity to associate any independent witness and thereby no independent witness is called, the evidence of search and seizure cannot be doubted simply on the ground of official mantle of those prosecution witnesses. The Court has to bear