JUDGMENT :

Sanjay Vashisth, J.

Appellant has filed the instant appeal against the judgment of conviction and order of sentence dated 07.03.2002, passed by the Ld. Judge, Special Court (ND&PS), Patiala, in Sessions Case No.149T/2000/28.08.2000, arising out of FIR No.294, dated 02.06.2000, under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘NDPS Act'), registered at P.S. Civil Lines, Patiala.

2. Appellant was found in possession of 300 grams of opium without any valid permit or licence, and was thus, sentenced for a period of one year RI, and to pay a fine of Rs.2500/-, and in default of payment of fine to further undergo RI for one month.

3. Learned State counsel points out that as per custody certificate, appellant has undergone actual custody period of 01 year, 04 months and 26 days, which is more than the sentence awarded by the Ld. Trial Court.

4. Story of the prosecution emerging from FIR is that on 02.06.2000, Inspector Piara Singh along with other police officials, in connection with the patrolling in Govt. Gypsy bearing registration No.PB-06-3110, driven by C.Nirmal Singh, No.91, were going from Sular Chowk to Kheri Gujran. Meanwhile, Baldev Singh, Sarpanch of village Bathoi Kalan met the police party at Sadar Chowk, who was joined in the police party. When the police party was near the link road, which leads to officer colony, a person having Jhola in his right hand was noticed coming from the front side. On seeing the police party, he tried to turn to his left side, and then started walking. On suspicion, he was stopped, and thereafter, his whereabouts were inquired, who disclosed his name as Jaspal Singh. Accused was informed about the suspicion of the police party of his having some contraband article in his Jhola, and was also given an option of his search to be conducted in the presence of Gazetted Officer or the Magistrate, and accused opted for his search in the presence of Gazetted Officer. Accordingly, through wireless message, DSP, City-II, Patiala was requested to come at the spot. After sometime, Mr.Gursharan Singh Bedi, DSP, City-II, Patiala, along with his gunman reached in a Govt. Gypsy at the spot. Thereafter, Investigating Officer (IO) in the presence of DSP conducted the search of Jhola held in the right hand of the accused, and on search, 300 grams of opium rapped in a paper was recovered. Two samples of 10 grams were separated and were put in a different small dabbi tins. After completing the other formalities on the spot, ruqa was sent to the police station for lodging of the FIR and thereupon, after completion of investigation, final report/challan under Section 173 Cr.P.C was presented.

Finding a prima facie case accused was charge-sheeted under Section 18 of the NDPS Act, for which he claimed trial.

5. Prosecution in total examined six witnesses i.e. SI Ajmer Singh as PW1 (member of the investigating team), Sh.Gursharan Singh Bedi, DSP as PW2 (As a Gazatted Officer in whose presence the recovery was effected), C.Rajesh Kumar No.3488 as PW3 (formal witness), HC Hari Pal Singh as PW4 (formal witness), C.Chet Ram No.1426 as PW5 (who deposited samples to FSL), Inspector Piara Singh as PW6 (who was heading investigating agency at the time of recovery and sealed the parcels). Thereafter, vide order dated 04.05.2001, prosecution gave up ASI Sanjeed Ali as unnecessary and PW-Baldev Singh being won-over by the accused, and thus, closed its evidence on 26.11.2011.

6. In the statement under Section 313 Cr.P.C., appellant-accused took a specific stand that "The case is false, I am innocent. Nothing was recovered from me. I was taken by the police from my shop in the presence of respectables o