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Judgment
7 paragraphs · 384 wordsT.H.B. Chalapathi, J.
This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Sirsa in Sessions Case No. 5SC/88 dated 18.7.1988 on the accusedappellant for the offence under Sections 17 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
According to the case of the prosecution, on 17.8.1986, the police party saw the accused coming from village Sahuwala carrying a Katta on his shoulder. Then on the basis of the suspicion, he was searched and it was found that the accused was carrying opium wrapped in wax paper. Samples have been taken and the accused was arrested and on completion of the investigation, a chargesheet was filed.
In order to prove the guilt of the accused, the prosecution examined 2 witnesses and marked certain documents.
On the basis of the evidence, the learned Additional Sessions Judge, Sirsa, committed the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One Lakh. Aggrieved by the same, this appeal is filed.
This appeal can be allowed on the short ground that the search of the person has been conducted in violation of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. The Investigating Officer categorically stated that he did not inform the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate. Learned Additional Sessions Judge is relying on decision of this Court, that mere fact that the accused was not told of his right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act is no ground to discard the case of the prosecution. This is contrary to law laid down by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 737 : JT 1994(2) SC 108 and State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595.
In this view of the matter the accused is entitled to be acquitted. Accordingly, I allow the appeal and set aside the conviction and sentence imposed by the learned Additional Sessions Judge, Sirsa. The bail bond of the accused shall stand cancelled.