Contraband - Recovery of 2 Kg. opium - Quantity of contraband is non-commercial - Short of 50 grams to be covered under commercial quantity; yet to be corsed under comercial quantity sentence reduced.

UMA NATH SINGH, J.

1. This Criminal Appeal arises out of a judgment and order dated 15.5.2003 passed by learned Special Judge, Hoshiarpur, in Sessions Case no.11 of 1.8.2000, holding the accused-appellant guilty of offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) and sentencing him to undergo RI for ten years with a fine of Rs.1,00,000/-. In default of payment of fine, the appellant has been directed to undergo further one year RI.

2. The brief facts of the case giving rise to this appeal are that a police party headed by SI Raminder Singh SHO of Police Station, Dasuya, was patrolling from the Gharna Sahib bus stop to Village Bodal via the randhawa village bus stop in an official vehicle on 16.5.2000. When they reached near the Randhawa Sugar Mill gate, they saw an scooterist coming from the direction of the Randhawa bus stop. He instantly turned back the scooter on seeing the police vehicle. They were chased and stopped by the police party. Accused Gian Singh (since deceased) was driving the scooter no. PB-07-C-9578 and accused Tarsem Singh, the pillion rider, was holding a while colour plastic bag in his hand. Accused Gian Singh died during the pendency of the trial. As such, the trial against him abated vide the order passed by the then learned Special Judge, Hoshiarpur, dated 9.4.2002. Sub inspector Raminder Singh informed the accused that he was suspecting some contraband articles in their possession. A complete offer in terms of section 50 of the Act was made. The accused were asked as to whether they wanted to be searched in the presence of a Gazetted Officer or a Magistrate.

3. The accused reposed confidence in SI Raminder Singh. Their consent memo. Ex. PA was reduced to writing. The accused signed the memo which was duly attested by the witnesses. On search, the plastic bag was found to contain 2 kg. opium without a valid permit or licence. A wireless message was sent to the DSP, Dasuya. He reached the spot and in his presence, further proceedings regarding separation of the sample were done. A sample of 20 grams was separated. It was sealed in a separate parcel in an empty match box. The residue being one kilogram and 980 grams opium, was prepared and sealed in a tin box in the same polythene bag. These parcels were impressed with the seal `rs of the DSP. A sample impression of the seal was also prepared. A CFSL form was filled up on the spot. The case property was taken into custody vide the recovery memo. Ex. PC. The memo was also attested by the DSP. The scooter along with its registration certificate was taken into possession vide a separate recovery memo (Ex. PD ). On the basis of the ruqa (Ex. PE) sent from the spot, a formal FIR (Ex. PE/1) was registered at Police Station. A rough site plan (Ex. PF) was also prepared. On receipt of Chemical Examiners report (Ex. PG) declaring the contents of the sample to be opium, a challan was presented against the accused before the learned Special Judge, Hoshiapur. The accused was supplied with the copies of necessary documents as required under law.

4. Having found sufficient materials to prosecute the accused-appellant under crl. Appeal No.1123-SB of 2003 4 section 18 of the Act, a charge was framed. The accused pleaded not guilty and claimed trial.

5. Heard learned counsel for the parties and perused the records. The appellants main contention regarding mentioning of the FIR number on consent memo (Ex. PA) does not hold good inasmuch as no such suggestion was given to SI Raminder Singh (PW-2) in his cross-examination. The second contention that there was non-compliance of Sec.50 of the Act during the course of search and seizure also does not appear to be tenable.

6. The contraband item was recovered from a plastic bag held by accusedappellant tarsem Singh, who was the pillion rider on the scooter and, thus, in terms of the ratio of law laid down by HON BLE the Apex Court, the provisions of Sec.50 of the A