Search and Seizure - When packets and the seal remained in custody of the same person, there was every possibility of the seized substance being tampered with.
Investigation conducted plays a very vital role, it should be free from any doubt before resorting to the stringent provision of penalty.

Virender Singh, J.

1. Appellant Ajaib Singh stands convicted under Sec.18 of the narcotic Drugs and Psychotropic Substances Act, 1985 ( in short to be referred to as the `act) vide impugned judgement of learned Judge, Special Court, Bathinda dated 17-11-2000 and is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lacs, in default thereof to undergo further RI for six months.

2. It is worth mentioning here that this appeal was heard on 27.4.2005. The main thrust of the submissions of learned counsel for the appellant at that stage was with regard to non-compliance of Sec.50 of the Act. The learned counsel had placed reliance upon two judgements of HON BLE Supreme Court and one Full Bench judgement of this Court. However, on the point of applicability of section 50 of the Act, the matter had already been referred to a Larger Bench of the HON BLE Apex Court. Before the pronouncement of the judgement in this case, the Apex Court had decided the controversy in the Full Bench judgement rendered in State of Himachal Pradesh Vs. Pawan Kumar, JT 2005 (4) SC 373.

3. Briefly, the case of the prosecution is that the appellant was apprehended by SI Ram Pakash ( PW-3) on 19-8-1997 when the latter along with some other police officials and one Gurmel Singh (independent witness) was present near Kotla Branch Canal. He was carrying a bag on his shoulder. On seeing the police party, he tried to turn back swiftly and consequently nabbed. On suspicion of carrying some contraband, a notice under Sec.50 of the Act was given to him. He gave his consent of being searched before some senior police official. A message was flashed, whereupon Sh. Brij Mohan Sarup, Deputy superintendent of Police (PW-1) reached the spot. The appellant then gave his consent of being searched before him. Thereafter the search of bag was conducted in the presence of the witnesses. It was containing opium in a glazed paper. On weighment it was found to be 3kgs.500 grams.10 grams was taken out as sample and sealed in a parcel. The remainder was also sealed in another parcel. Both the parcels were sealed with the seal impression rp (of Ram parkash ). Separate seal impression (Ex. P1) was prepared. Thereafter the entire case property, including the sample seals was taken into possession vide recovery memo. Ex. PB, attested by the said DSP and ASI Mukhtiar Singh besides Gurmel singh, the independent witness. The seal after use was handed over to Gurmel singh. Rukka (Ex. PG) was sent to the police station, on the basis of which formal FIR ( Ex. PG/1) was registered. Rough site plan was also prepared at the spot. The appellant was explained the grounds of arrest vide memo. Ex. PD prepared at the spot. On return to the police station, the case property was kept by ram Parkash, the Investigating Officer in his custody. On the next day the appellant along with the case property was produced before the Illaqa Magistrate ( Sub Divisional Judicial Magistrate), Talwandi Sabo vide application Ex. PK, on which formal order Ex. PK/1 was passed. The Investigating Officer also produced the inventory Ex. PL along with the aforesaid application and then kept the sample parcel with him. He sent the sample to the office of Chemical Examiner along with the sample seal on 20-8-1997 through Constable Biru Khan ( PW-2 ). A special report ( Ex. PM) was also sent to the senior officer (DSP Balbir Singh), who made his endorsement ( Ex. PM/1) on it. After receipt of the report of chemical Examiner ( Ex. PN), the appellant was challaned in this case. He was then charged under Sec.18 of the Act.

4. In order to prove its case, the prosecution examined D. S. P. Brij mohan Sarup as PW1. Constable Biru Khan PW-2 tendered his affidavit (Ex. PE)and SI Ram Parkash PW-3 is the Investigating Officer. Besides this, the report ex. PN of the Chemical Examiner was also tendered into evidence. Gurmel Singh was, however, given up as having been won over.

5. The stand taken up b