JUDGMENT

N.S. Shekhawat, J.

Challenging the judgment of conviction dated 03.04.2004 and order of sentence of even date passed by the learned Judge, Special Court, Patiala, whereby the appellant has been convicted for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default thereof, to further undergo rigorous imprisonment for two months, the appellant has approached this Court by way of filing the present criminal appeal.

2. The prosecution story, as it emerges from the report under Section 173 Cr.P.C., is that on 09.08.2000, a police party headed by SHO Balwinder Singh, Police Station Ghagga, was holding a Nakka on one side, whereas another police party headed by ASI Karan Singh had set up a Nakka on the other side of the bridge. In the meantime, Mohinder Singh, independent witness, came at the spot and started talking to the police party. While they were talking, accused/appellant Daler Singh and another person Dial Singh were seen coming on two separate mares and tried to cross the wooden bridge of Ghaggar River. On seeing the police party, both tried to flee from the spot, but they were caught by the police parties and both alighted from the mares. The police party suspected that the said persons were carrying some contraband and they were apprised of their right under Section 50 of the NDPS Act to the effect that they could get their search effected from some gazetted officer or a Magistrate. The accused/appellant stated that he wanted to get his search conducted from some gazetted officer. The consent of the accused/appellant was reduced into writing by SHO Balwinder Singh and message was sent to DSP Gurbachan Singh, who reached at the spot and after disclosing his identify, he gave the option to the accused/appellant that he could get his search conducted as per the provisions of the NDPS Act, but he reposed confidence in the DSP and his statement Ex.PD was recorded accordingly.

3. After following the procedure, as provided by the NDPS Act, search of accused-appellant Daler Singh was conducted by ASI Karan Singh and on unloading the bags, 20 kgs of poppy chura was recovered from two bags. Two samples of 250 grams from each of the bag were separated and the remember quantity weighed to be 39 kgs.

4. After necessary investigation, the challan was presented against the accused/appellant under Section 15 of the NDPS Act. Finding a prima facie case, the charge under Section 15 of the NDPS Act was ordered to be framed against the present appellant, to which he pleaded not guilty and claimed his trial.

5. In order to bring home the guilt of the accused/appellant, the prosecution examined five witnesses. PW-1 ASI Gurmail Singh was examined, who was posted as MHC PS Ghagga on 09.08.2000 and he tendered his affidavit Exhibit PA. PW-2 Constable Amrik Singh was examined, whose evidence was of formal character and he tendered his evidence by way of his affidavit, Exhibit PB. The prosecution further examined ASI Karan Singh as PW-3, who was a witness of search and seizure proceedings. He supported the case of the prosecution in totality. Inspector Balwinder Singh was examined as PW-4, who was posted as SHO PS Ghagga on 09.08.2000 and ASI Karan Singh had produced the accused/appellant, case property, samples of poppy husk and witnesses of the case, before him. ASI Karan Singh also produced seal impression Exhibit P1 before him and h