Prem alias Prem Singh vs Haryana State

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed on the accusedappellant by the learned Additional Sessions Judge, Rohtak in Sessions Case No. 7 of 1989 (Sessions Trial No 21 of 1989) dated 12th July, 1989.

According to the case of the prosecution on 13.6.1998, Astt. Sub Inspector Rameshwar Dass alongwith other Police officials was present at platform No. 1, Railway Station, Rohtak. At about 5.35 P.M. a train came from Jind side going to Delhi and halted at platform No. 1. Thereupon, the police started checking the passengers. At that time, accused came from the side of main gate towards the parcel office and on seeing the police party the accused turned back and tried to slip away. On suspicion, the police apprehended the accused in the presence of one Jogi Ram. The accused was holding a cloth bag in his right armpit. When it was searched, it was containing 280 Gms of opium wrapped in a wax envelope. Out of it, 25 Gms was taken as sample and sealed. The remaining opium was kept seaparately in a tin box and sealed. Thereafter, a ruqa was sent to the Police Station for registration of the case. After completion of the investigation, a chargesheet was filed against the accused.

After committal of the case, the learned Additional Sessions Judge framed a charge against the accused 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 documents. After closure of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. He stated that he has been falsely implicated in this case and nothing was recovered from him. In defence, he did not adduce any evidence.

The evidence of PW3 is not of much importance. He only received a message that Assistant Sub Inspector had recovered opium. The evidence of PW1 and PW2 clearly shows that they searched the person of the accused which revealed that he was holding a cloth bag below his armpit and the opium was recovered from him. Though PW1 and PW2 in their evidence stated that before the search was conducted, the accused was asked whether the wanted to be searched by a Gazetted Officer or by the ASI Rameshwar Dass, he replied that he had no objection if the search is conducted by the ASI Rameshwar Dass. There is nothing in Exhibit PA that the accused had been made such an offer either by PW1 or PW2. It is clearly mentioned in Exhibit PW that in the presence of the following witnesses, on search of the cloth bag held by the accused in his armpit, opium in a wax envelope was recovered. A reading of Exhibits PA and PB belie the version of PW1 and PW2. Further, though according to PW1 and PW2, one independent witness Jogi Ram was associated at the time of search, he was not examined by the prosecution. Therefore, there is a clear violation of the provisions of Section 50 of the Act. 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 search conducted without following the procedure as laid down in Section 50 of the N.D.P.S. Act is illegal and no conviction can be based on such illegal recovery. Therefore, I am of the opinion that the accused is entitled to be acquitted of the charge framed against him.

In view of the foregoing discussion, I allow the appeal, set aside the conviction and sentence imposed on the accusedappellant by the Additional Sessions Judge and acquit him of the charge framed against him. The bail bonds of the accused shall stand cancelled.