Avtar Singh vs State of Punjab

Dr. Sarojnei Saksena, J.

Accused appellant Avtar Singh was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter short ''the Act'') by Shri N.C. Khichi, Additional Sessions Judge, Jalandhar and was sentenced to undergo RI for ten years with a fine of rupees one lac, in default to further undergo RI for six months.

In a nutshell, the prosecution case was that on 29.12.1985, Head Constable Gurdip Singh of Police Post Rahon, Police Station Nawanshehar was going on usual patrol duty alongwith Constables Gurmit Chand and Varinder Chand. When they were going towards village Chahar Majra from village Usman Pur, they saw the accused coming from village Sahota at about 4.15 P.M. Seeing the police party, the accused tried to retreat and thus on suspicion he was apprehended by Head Constable Gurdip Singh. He took his personal search and recoveral one bag containing 21/4 kgs of poppy husk. Sample was duly taken and both packets were sealed separately. Gurdip Singh, Head Constable sent ruqqa Ex. PB to Police Station Nawanshehar and thus a case was registered against the accused. The sample was examined by the Assistant Chemical Examiner, Amritsar who on examination opined that contraband article is poppy husk.

The accused pleaded not guilty. He adduced defence evidence also. His plea was of false implication.

During trial Head Constable Gurdip Singh and Constable Varinder Chand were examined. Affidavits of Ram Dhan and Jagtar Singh were filed. Report of the Asstt. Chemical Examiner was also filed. Finding the prosecution evidence reliable and cogent, the trial Court found the accused appellant guilty of the said offence and convicted him accordingly.

The appellant''s learned counsel contended that at the time of alleged search and seizure the mandatory provisions of section 50 of the Act were not followed. No independent witness was joined. Other mandatory provisions of Sections 41, 42, 43, 53 and 55 of the Act were also not followed. The sample was not sent to the authorised laboratory for examination under the Act. The Asstt. Chemical Examiner is not authorised authority to examine such samples and to give opinion thereon.

Learned defence counsel relying on State of Punjab v. Kulwant Singh, 1994(1) Recent CR 303 and State of Punjab v. Balbir Singh, 1994(1) RecentCR 736 contended that as mandatory provisions of the aforesaid provisions of the Act were not followed at all during investigation it caused prejudice to the accused and on this count he is entitled to be acquitted.

Learned counsel appearing for the State could not support the judgment of the trial court as during investigation their aforesaid provisions of the Act were not followed at all.

In the above cited authorities it is held that provisions of Sections 42, 50, 41(2), 52 and 55 of the Act are mandatory in nature. In this case it is evident that at the time of search and seizure, provisions of Section 50 of the Act were not complied with. On this count alone the trial is vitiated and the accused appellant is entitled to acquittal.

Though the patrolling police party was going on patrolling duty from one village to another but no independent witness was joined. Hence, I find that whole of the investigation was conducted in utter disregard of the aforesaid provisions of the Act and on this count the accused is entitled to be acquitted.

Accordingly, this appeal is allowed, conviction and sentence of the accused appellant under Section 15 of the Act are, hereby, set aside. Bail bonds are discharged.