Strict compliance with Section 50 of the NDPS Act is mandatory for lawful searches; failure invalidates the evidence obtained.

JUDGMENT :

Jasjit Singh Bedi, J.

The present appeal has been filed against the judgment of conviction and order of sentence dated 06.10.2009 passed by the Judge, Special Court, Barnala.

2. The FIR was registered on 21.11.2008, the judgment of conviction and order of sentence passed by the Judge, Special Court, Barnala is dated 06.10.2009, the appeal was filed on 14.10.2009 and the matter is being taken up for hearing now i.e. after a period of more than 16 years from the date of registration of the FIR.

3. The brief facts, as per the report u/s 173 Cr.P.C that on 21.11.2008, ASI Baljit Singh along with his police party, in connection with patrolling duty and checking of bad elements, was proceeding from main road Barnala, towards Mansa Dhaula. When the police party was a little short of the T-point Chhanna, at about 6.30 AM, on the right side under the shade of a Bohar tree near the water tap, one person was seen consuming something from his left hand with his right hand. On seeing the police party, he at once had kept that thing in the pocket and started drinking water. On suspicion, ASI Baljit Singh stopped the vehicle and with the help of his companions, apprehended the said person, who on enquiry, disclosed his name as 'Dharam Pal' and also disclosed his other particulars. ASI Baljit Singh, looked for a private person nearby, but none was available. HC Sabir Mohd. was despatched to bring some independent witness. Then ASI Baljit Singh disclosed his identity and also disclosed his present place of posting. He also stated to the accused that he suspecting him to be carrying some illegal substance and that he intends to conduct his search. He also apprised the accused of his right to get the search conducted in the presence of some Gazetted Officer or Magistrate, who could be called to the spot. However, the accused reposed confidence in ASI Baljit Singh and expressed his desire to get the search conducted from ASI Baljit Singh, whereupon a consent memo was separately recorded. Meanwhile, HC Sabir Mohd. also returned and disclosed about the non-availability of any independent witness.

4. Thereafter, ASI Baljit Singh, conducted the search of Dharam Pal, which led to the recovery of opium wrapped in a glazed paper from the pocket of the shirt, which the accused was wearing. ASI Baljit Singh separated two samples of 10 gm each from the opium so recovered and the residue opium weighed 130 gm. Parcels of the samples and the residue were prepared, which were sealed with the seal bearing impressions "BS". The sample seal was separately prepared. The seal after use was handed over to HC Ranjit Singh. All the three parcels and sample seal were taken into possession vide a separate recovery memo. Various other documents were prepared at the spot. On return to the police Station, the accused and the case property were produced before the SHO, who counter sealed the parcels and the sample seal with his seal bearing impressions "HS". The sample parcel was sent to the office of the Chemical Examiner and the latter vide his report, opined that the contents of the parcel were opium. On completion of the investigation, the accused was sent up to face trial for the commission of an offence under Section 18 of the NDPS, Act, 1985. Accordingly, charges were framed against the appellant under Section 18 of the NDPS Act, 1985 . The accused pleaded not guilty and claimed trial.

5. The prosecution examined 05 prosecution witnesses besides adducing documentary evidence.

6. On closure of the prosecution evidence, all the incriminating circumstances appearing in the prosecution evidence were put to the accused in his statement u/s 313 Cr.P.C. The accused denied all the allegations, pleaded innocence and