- (1.) APPELLANT Deep Singh is aggrieved by the judgement dated 1.6.1994 passed by Sessions Judge, Sirmaur District at Nahan whereby he has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 and in default of payment of fine to undergo further imprisonment for two years.
(2.) THE case of the prosecution in brief is that on 18.11.1989 a police party consisting of a few constables and headed by ASI Om Prakash, was present at Yamuna Bridge at Paonta Sahib for routine checking of the vehicles passing through that bridge. At about 8.40 P.M., they saw the appellant coming on foot over the Yamuna Bridge from the State of Uttar Pradesh border. He was having a bag on his shoulder. On seeing the police the appellant tried to run away but he was chased and overpowered. On search a plastic bag filled with poppy straw was found in his bag. On weighing the poppy straw was found to be 4 kgs., out of which 100 gms. was separated as sample and put in a parcel and sealed. Thereafter, a written report was sent to the police station on the basis of which formal FIR was registered. The sample was sent to Chemical Examiner, who vide his report Ex. PG opined that its contents were poppy straw. On completion of investigation challan was put up and after trial the appellant was convicted and sentenced. Hence, the present appeal. This Court has heard learned Counsel for the parties and gone through the record. The prosecution has produced PW-1 Lachhman Dass, PW-5 Rajinder Singh and PW-6 Sub-Inspector Om Prakash besides other witnesses. On the analysis of prosecution evidence, the Sessions Judge has come to the conclusion that the appellant was apprehended by the police on 18.11.1989 at Yamuna Biidge Barrier and poppy straw weighing 4 kgs. was recovered from him, therefore, the appellant being in exclusive and conscious possession of 4 kgs. of poppy straw, committed art. offence under Section 15 of the Act. The submission made on behalf of the appellant that the mandatory provisions of Section 50 of the Act were not complied with, was rejected holding that it was a case of chance recovery, as such, there was no occasion for complying with these provisions. So far compliance of Sections 52 and 57 of the Act is concerned, the Sessions Judge has observed that these provisions are held directory by the Supreme Court in State of Punjab v. Balbir Singh, 1990 (2) SLJ 1502 :1995 JIC 382 (SC), and the appellant can be given benefit thereof only if he shows that by their non-compliance some prejudice has been caused, which has failed.
(3.) THE first argument addressed by Mr. M. S. Chandel, learned Counsel for the appellant, is that the Sessions Judge was not right in holding that it was a case of chance recovery and mandatory provisions of Section 50 of the Act were not required to be complied with. According to the learned Counsel in view of the statement of Sub-Inspector Om Prakash PW-6 that Nakabandi used to be arranged at Yamuna Bridge to check import of contraband goods like liquor, narcotic drugs and substances etc. into the State of Himanchal Pradesh and during his tenure he had caught 2-3 cases of narcotic drugs, it can be presumed that he had reason to believe from his personal knowledge that the appellant had narcotic drugs in his possession, therefore, before making the personal search of the appellant under Section 43 of the Act, he was required to comply with the mandatory provisions of Section 50 of the Act. It is further submitted that it was not a case where the police was making search for some different purpose and narcotic drug was found by chance to term it chance recovery and take it out from the purview of Section 50 of the Act.;