The recovery of contraband from a public place does not require compliance with Section 42 of the NDPS Act, and the presumption of conscious possession under Section 54 places the burden of proof on the accused.

JUDGMENT :

N.S.SHEKHAWAT, J.

1. The present appeal has been preferred by the appellant challenging judgment of conviction and order of sentence dated 14.05.2004 passed by the learned Judge, Special Court, Jalandhar, whereby, the appellant was convicted for the commission of offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- alongwith default stipulation.

2. The brief facts of the case are that on 26.02.2000, Inderjit Singh, PW6, Investigating Officer alongwith several other police officials was present near High School of village Ghurka, where, he received a secret information that the present appellant and his co-accused were indulging in transportation and smuggling of poppy husk and on that day all the accused were present near the bridge of the water reservoir (also known as Sua in Punjab), within the area of village Ghurka and in case a raid was conducted, they could be apprehended at the spot. It was also informed that the accused were in possession of a scooter. A rukka was prepared by the Investigating Officer and he sent the same to the Police Station by hand through H.C. Harjinder Singh and on the basis of the same, one formal FIR was registered under Section 15 of the NDPS Act. An independent witness Vijay Kumar was also joined and message was sent to Sajjan Singh Cheema, DSP, with a request to reach at the spot. On registration of the FIR, police party raided at the disclosed place and on arrival of the DSP, they apprehended Kewal Singh while sitting on the gunny bags. However, the remaining co-accused fled away on seeing the police party and they were identified by Vijay Kumar.

3. The present appellant was apprehended at the spot and was apprised of his right to get the search of the bags conducted from a gazetted officer or a Magistrate. PW2 Sajjan Singh Cheema, DSP, introduced himself being the gazetted officer of Government of Punjab. The accused desired to get his search conducted from him and reposed confidence in him and consent memo was prepared in this regard, which was duly thumb marked by the accused and was attested by Vijay Kumar. Further, a sample of 250 gms was separated from each bag and on weighing, the remaining quantity of poppy husk was found to 30 kgs 750 gms of poppy husk in each bag. All the 50 samples of 50 bags were converted into separate parcels and were sealed with the seal of Investigating Officer, having impression of 'IS' and the seal of the DSP was having seal impression 'SS'. The specimen seal was also prepared. The DSP retained the seal, whereas, the Investigating Officer handed over his seal to Harjit Singh. The entire contraband was taken into possession by the police and the accused was formally arrested. The initial investigation was conducted by the police and the case property was deposited with the MHC in intact position. On 27.02.2000, the entire case property was produced by ASI Suhash Chander before the Ilaqa Magistrate through the application Ex.PD. The sample was sent to the chemical examiner for analysis and was found to be containing poppy husk.

4. After the presentation of the challan, the learned trial Court considered the matter in the light of the incriminating evidence collected by the police during the course of investigation and ordered framing of charge under Section 15 of the NDPS Act. The accused pleaded his innocence and claimed trial.

5. In support of the prosecution case, the prosecution examined six witnesses. HC Amrik Singh was examined as PW1, who tendered his affidavit Ex.PA in evidence. Sajjan Singh, DSP Vigilance, Ludhiana was examined as PW2, who reached at the spot after getting the wireless message. Even, the accused was given offer to get his search conducted in the presence of a gazetted officer or a Magistrate but the accused reposed confidence in him and after rec