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2000 DIGILAW 266 (PNJ)

Vijay Kumar @ Dodo v. State Of Punjab

2000-03-03

T.H.B.CHALAPATHI

body2000
Judgment T.H.B.Chalapathi, J. 1. This appeal is directed against the conviction and sentence imposed on the appellant by the Ld. Addl. Sessions Judge, Amritsar in Sessions Case No. 163 of 1988 passed on 30.1.1990 2. According to the case of the prosecution on 3.8.1988, ASI Mohinder Singh along with HC Ram Lubhaya and other police officials hold a naka on the drain bridge in the area of village Wadala Bhitewad. At about 5.30 a.m. accused Vijay Kumar along with one Rajesh Kumar came from the side of village Wadala Bhitewad and they have been stopped on suspicion, ASI told the accused that they were to be searched and if they wanted, the search can be affected by a Gazetted Officer, but the accused replied that they have faith in the ASI. Accordingly, ASI searched the accused and recovered 100 grams of opium from the pocket of the pant of the accused Vijay Kumar. Thereafter, formal FIR was registered. After completion of investigation, challan was presented against the accuses under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as (-sic-) committal, the Ld. Addl. Sessions Judge framed a charge under Section 18 of the Act. He claimed trial by not pleading guilty to the charge. 3. In order to prove the guilt of the accused, prosecution filed an affidavit of PWs. 1 & 2 as they were formal witnesses and examined PWs. 3 & 4. Thereafter accused was examined under Section 313 Criminal Procedure Code and he stated that he was falsely implicated in the case. 4. On the consideration of the evidence on record, Learned Addl. Sessions Judge convicted the accused for the offence under Section 18 of the Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac. 5. Aggrieved by the same, the accused has preferred this appeal. 6. The only point raised in this appeal is whether there is compliance of Section 50 of the Act. According to PWs. 3 & 4, the accused was asked whether he wanted to be searched by a Gazetted Officer, but the accused replied that he had faith in the ASI and therefore, the search was conducted. But the fact remains that both PWs. 3 and 4 admitted that there is nothing on record to show that offer was made to the accused. 3 & 4, the accused was asked whether he wanted to be searched by a Gazetted Officer, but the accused replied that he had faith in the ASI and therefore, the search was conducted. But the fact remains that both PWs. 3 and 4 admitted that there is nothing on record to show that offer was made to the accused. Their evidence also clearly shows that statement of accused was not recorded to the effect that he wanted his search to be conducted by the ASI. There is no independent evidence to show that any offer was made to the accused. There is also nothing in writing to show that any such offer was made. It is only in the evidence given in the Court that PWs. 3 and 4 stated that the accused was asked whether he would like to be searched by a Gazetted Officer. 7. On a consideration of the evidence on record, I am of the opinion that there is clear violation of provisions of Section 50 of the Act. When there is violation of the said provision, the accused entitled to be acquitted in view of the decisions of Supreme Court in cases State of Punjab v. Balbir Singh, JT 1994 (2) SC 108 : [1994(l) All India Criminal Law Reporter 863 (SC)] and State of Punjab v. Baldev Singh 1999(4) SC 595 : [1999(3) All India Criminal Law Reporter 1 (SC)]. Appeal is accordingly allowed. Accused in acquitted of the charge framed against him. His bail bonds stand cancelled.