Violation of mandatory search provisions and lack of empowerment of the investigating officer led to the collapse of the prosecution's case.

S.D.Bajaj, J.

1. While standing near the country liquor vend of village Dhanas in the Union Territory of Chandigarh, ASI Radhey Sham of Police Station West, Chandigarh, recovered from conscious physical possession of accused Shamsher Singh on his personal search from inside the pocket of the pant worn by him 10 grams of opium wrapped in glazed paper and placed in an empty match box on being charged with the commission of the offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having been found in possession of 10 grams of opium at 7.30 P.M. On February 11, 1986 without any permit, accessed Shamsher Singh pleaded `not guilty thereto, and claimed to be tried. Vide its impugned judgment dated April 28, 1987 trial Court acquitted the accused holding that ASI Radhey Sham was not empowered to search the accused and that independent witnesses of the locality were into joined therein. Feeling aggrieved therefrom Union Territory of Chandigarh (State) has filed Criminal Appeal No. 209 DBA of 1988 in this Court.

2. We have heard Shri R.S. Rai, Advocate for the appellant, nemo for the respondent in spite of due service and have perused the relevant material on record very carefully.

3. Sub-section (4) of Section 100 of the Criminal Procedure Code reads. "Before making a search under this chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality in no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do". In terms of the observations made in Swarna v. State of Punjab, 1987(2) Recent Criminal Reports 117 learned trial Court held that admittedly the available independent witnesses of the locality having not been joined/associated by the Investigating Officer while conducting search of the accused, mandatory legal provisions aforesaid are obviously violated and memo of search cannot be relied upon to foist the recovery of opium upon the accused.

4. Secondly ASI Radhey Sham-Investigating Officer conducting search of the accused was not specifically empowered by the State to do so in terms of sections 41 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985. In terms of the observations made in Nilratan Sircar v. Lakshmi Narayan Ram Niwas, AIR 1965 SC 1 and Karam Singh v. State of Punjab, 1983(2) R.C.R.(Criminal) 497 : 1987(1) Recent Criminal Reports 598 recovery of opium by the ASI is of no avail to the prosecution. Furthermore the packet of opium allegedly recovered from the accused was not got sealed from S.I./S.H.O. of Police Station West, Chandigarh, in terms of section 55 of the Act ibid. For violation of the mandatory provisions aforesaid, the edifice built by the prosecution against the accused tumbles down and collapses. Finding of `not guilty recorded by the learned trial Court in favour of the respondent is, therefore, affirmed. State appeal filed against his acquittal loses all ground and is, therefore, dismissed.