The significance of official witnesses' testimony, the absence of prejudice to the appellant, and the chance nature of the recovery influenced the court's decision.

JUDGMENT :

Vivek Puri, J .

1. The challenge in the present appeal is to the judgment of conviction dated 12.07.2005 vide which the appellant has been convicted under Section 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') and the order of sentence dated 13.07.2005 passed by the learned Judge, Special Court, Kapurthala, vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3000/-, in default whereof to further undergo simple imprisonment for the period of two months.

2. The brief facts of the instant case are to the effect that on 2.7.2003 A.S.I Parma Nand alongwith fellow Police Officials were patrolling in an official vehicle and were present at the bridge at Cheeka- Balbehra road. Meanwhile, the appellant was spotted coming from the side of village Harigarh Kingan and was carrying a plastic bag on his head. On seeing the police party, the appellant tried to turn back and was apprehended at the spot. The identity of the appellant was verified. It was suspected that the appellant was carrying some narcotics substance and as such a notice under section 50 of the Act was served upon him seeking his option to get the search conducted in the presence of a gazetted officer or a Magistrate. The appellant opted to get the search conducted in the presence of a gazetted officer. The appellant alongwith the case property and the witnesses were taken to the office of DSP Dharampal who verified the facts of the case. The search of the bag being carried by the appellant led to the recovery of poppy husk. Two samples weighing 250gms each were separated and the remaining poppy husk weighed 11 kg 500 gm. Separate parcels of both the samples and the bulk were prepared, sealed with the seal bearing impressions 'PN' and 'DPS' and taken into possession vide separate recovery memo.

3. Ruqa was recorded and dispatched to the police station, on the basis whereof, FIR was registered. On return to the police station, the appellant alongwith the case property and witnesses were produced before Zile Singh, Sub Inspector who verified the facts of the case and affixed his seal bearing impression 'ZS'.

4. On completion of the investigation, challan was presented and charge was framed to which the appellant pleaded not guilty and claimed trial.

5. In support of its case, the prosecution has examined six witnesses, namely, PW-1 Dharam Pal Singh Dalal, DSP, PW-2 ASI Parmanand, PW-3 SI Zile Singh, PW-4 Constable Virender Singh, PW-5 Head Constable Ram Singh and PW-6 Constable Krishan Kumar, besides documentary evidence.

6. In his statement under Section 313 Cr.P.C., the appellant has denied the correctness of incriminating evidence appearing against him and pleaded false implication. However, no defence evidence has been led by him.

7. Vide the judgment of conviction and order of sentence, the appellant has been convicted and sentenced as aforesaid.

8. Aggrieved by the aforesaid judgment, the appellant has preferred this appeal challenging his conviction and sentence.

9. I have heard learned counsel for the parties and perused the record.

10. While assailing the judgment of the learned trial Court, it has been argued by learned counsel for the appellant that no independent witness was joined at the time of search; the first informant and Investigating Officer of the case is the same person and there is non compliance of the mandatory provisions of section 50 of the Act as the appellant has not been apprised of his legal right to get the search conducted in the presence of a gazetted officer or a Magistrate.

11. On the contrary, while supporting the judgment of the learned trial Court it has been argued by the learned State counsel that there is no bar to base the conviction on the statements of the official witnesses only; no prejudice has occurred to the appellant on the score that the officer who effected the recovery has conducted the subsequent investigation