Mahiraj vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Sirsa in case No. 13N.D.P.S. dated 1.6.1989.

The accusedappellant was prosecuted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `Act'').

According to the case of the prosecution, the accused kept in his possession 3 Kgs 100 Gms of opium without any permit or licence. On 7.12.1988 the Assistant Sub Inspector Ujagar Singh alongwith ASI Gulzari Lal and Head Constable Chandgi Ram and some Constables were holding a Nakabandi in a jeep on Canal bridge Bhakra Main Branch on katcha path leading to Lohgarh from Sangaria. At that time, the accused with a thaila came from the side of Sangaria. On suspicion he was apprehended and thaila was searched which found containing 3 Kgs 100 Gms of opium out of which sample of 100 Gms was taken and sealed and the remaining opium was also sealed. A case was registered against the accused. On completion of the investigation, a chargesheet was filed against him.

After committal, the learned Additional Sessions Judge framed a charge against the accusedappellant for the offence under Section 18 of the Act to which the accused pleaded not guilty.

In order to prove the guilt of the accused, the prosecution examined three witnesses and marked certain documents. After the closure of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. In his statement, the accused stated that the case was foisted against him and during search nothing was recovered from him.

On a consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused for the offence under Section 18 of the Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. one lac.

Aggrieved by the said conviction and sentence, the accusedappellant filed this appeal.

The learned Counsel for the accusedappellant argued that there is a violation of provisions of Section 50 of the Act and no independent witness has been examined.

PW3 is only a formal witness. PW1 deposed that Nakabandi was held on canal bridge of Bhakra main branch on a katcha path in the area of Lohgarh. The accused came from the side of village Sangaria with a thaila which was hanging on his right shoulder. On suspicion, he was apprehended and thaila was checked. Thereafter the accused was enquired by him whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate, but the accused stated that the search can be conducted by him. PW1 further stated that on search it was found that the thaila was containing opium which was recovered. In support of the search, no independent witness was examined by the prosecution. Nothing has also been reduced to writing to show that an offer was made to the accused before conducting the search. When the offer was not reduced to writing and the statement of the accused was not recorded, the prosecution must have associated some independent witness as held by the Apex Court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595.

After going through the evidence of PW1 and PW2, I am unable to place any reliance on their testimony without any corroboration. In fact there are contradictions in the statements of PW1 and PW2. PW1 categorically stated before the offer was made, the thaila was checked and thereafter he asked the accused whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. When the thaila was already searched, there was no point in offering the accused whether he wanted to be searched in the presence of a Gazetted Officer. PW2 stated that before search, ASI Ujagar Singh (PW1) enquired from the accused whether he be taken to a Gazetted Officer or a Magistrate, but the accused offered to be searched by PW1.

On a consideration of the evidence on record, I am of the opinion that the search is illegal and therefore the conviction is vitiated in view of the decisions of 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 , the accusedappellant is entitled to be acquitted.

The appeal is accordingly allowed, the conviction and sentence imposed on the accusedappellant by the Additional Sessions Judge are hereby set aside and the accused appellant is acquitted of the charge framed against him. The bail bonds of the accused shall stand cancelled.