The presence of an independent witness is not mandatory for a search and seizure to be valid under the NDPS Act.

K.S. Kumaran, J. - F.I.R. No. 57 dated 13.5.1999 under Sections 18, 61 and 85 of the N.D.P.S. Act has been registered against the petitioner at Police Station, Khalra. The allegation against the petitioner is that he was having 500 grams of opium in a cotton cloth tied around his waist. According to the Investigating Agency, the S.I./S.H.O. of the above said police station along with Constables Paramjit Singh, Kartar Singh and others was going on patrol duty and at that time they found the petitioner coming. It is also alleged that petitioner was informed that they had suspicion that he was having opium or some other intoxicating substance and an offer was made that the petitioner could be searched by the S.H.O. or in the presence of some Gazetted Officer or a Magistrate. According to the Investigating Agency, on petitioners unwillingness to be searched by the S.H.O., D.S.P., Bhikhiwind was asked to come, who also made an offer that the petitioner could be searched before him or before a Magistrate. It is further alleged that the petitioner-accused reposed confidence in the D.S.P. and therefore, the search was conducted and it was found that he had in his possession 500 grams of opium as mentioned already.

2. Petitioners application for bail was dismissed by the learned Special Judge, Amritsar and therefore, he has approached this Court under Section 439 Criminal Procedure Code

3. I have heard the counsel for both the sides and perused the records on file.

4. The contention of the learned counsel for the petitioner is that Constables Paramjit Singh and Kartar Singh of the above police station are inimically disposed towards the petitioner and the petitioner and his father were taken by them to the police station on 11.5.1999, but while releasing the father of the petitioner, the petitioner was kept in illegal custody and implicated in a false case. The learned counsel for the petitioner contends that no recovery was effected from the petitioner and no recovery memo has also been prepared for taking opium, as alleged. He further contends that Baljit Singh, the alleged independent witness, who is stated to have been present at the time of occurrence, is a stock witness of this police station and he is a witness in two (three ?) other cases of the same police station namely F.I.R. No. 4 dated 5.1.1999, F.I.R. No. 100 dated 28.9.1999 and F.I.R. No. 172 dated 13.11.1998 of Police Station, Bhikhiwind, all under the N.D.P.S. Act. To support his contention, the learned counsel for the petitioner has produced copies of the recovery memo in F.I.R. No. 4 of 1999 and F.I.R No. 100 of 1998, wherein the same Baljit Singh has attested as witness, as also the report under Section 173 in F.I.R. No. 172 dated 13.11.1998 wherein also, said Baljit Singh has been shown to have been present at the time of the occurrence. But the fact that same Baljit Singh happens to be a witness in some of the cases, has to be correct, how far it will affect the case of the prosecution, has also to be seen at the time of the trial, because there are other witnesses whose evidence has also to be taken into consideration before deciding the main case, one way or the other. Therefore, on the ground that Baljit Singh is a stock witness, this Court cannot at this stage come to the conclusion that the petitioner is not guilty of the offence alleged against him.

5. The learned counsel for the petitioner relied upon a decision of this Court in Ajay Kumar v. State of Punjab, 1999(1) RCR 194 where this Court found that the police had made an offer that the accused therein could be searched in the presence of a big police officer. Therefore, the Court considered that it was a fit case for granting bail since the contention raised was that there was non-compliance of the provisions of Section 50 of the N.D.P.S. Act. But the position is not the same in the present case. Therefore, this decision will not be applicable to this case.

6. The learned counsel for the petitio