- (1.) Appellants have preferred these appeals separately, aggrieved by the judgment and order dated 22nd January, 2008 passed by the Punjab and Haryana High Court in Criminal Appeal No.686-DBA of 1997, whereby while reversing the judgment of acquittal dated 7th May, 1997 passed by the Sessions Judge, Faridkot in Sessions Case No.73 of 1994 (Sessions Trial No.71 of 1994) convicted the appellants for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') and sentenced them to undergo rigorous imprisonment for a period of 10 years each and to pay a fine of Rs.1 lac each and in default to undergo further rigorous imprisonment for a period of one year each.
(2.) According to the prosecution, on 4th June,1994 PW.3, Jagmohan Singh, Station House Officer of Police Station, Mehna along with Assistant Sub-Inspector of Police, Ranjit Singh and other police personnel were on a routine picket duty near the passage leading to the various colonies from Ajitwal. While they were on duty a white Maruti Car, bearing No.PID 6096 was seen coming from the side of village Kokri Kalan through an unmetalled road and when signalled by Jagmohan Singh, it stopped. On enquiry the person driving the car disclosed his name as appellant Dharampal Singh whereas the other person sitting by his side on the front seat disclosed his name as appellant Major Singh. According to the prosecution, the Station House Officer apprised them that they intend to search their car and whether they wish to be searched in the presence of a Magistrate or a Gazetted Officer. Both of them expressed their desire to be searched by a Gazetted Police Officer and accordingly on his wireless message Narinderpal Singh, Superintendent of Police, Moga along with security personnel reached there. According to the prosecution an attempt was made to join independent persons to witness to the search but none were available. Hence, the car was searched by Jagmohan Singh in the presence of the Superintendent of Police and in the dicky of the car a gunny bag containing opium, wrapped in a glazed paper was found. Total weight of the opium found was 65 kilograms and from that sample of 100 grams was taken and kept in a sealed cover. The sample so taken was sent to the Chemical Examiner, who found the same to be opium. After completion of the investigation charge-sheet was submitted under Section 18 of the Act and ultimately the appellants were put on trial for commission of the offence punishable under the aforesaid Section.
(3.) The prosecution in support of its case altogether examined seven witnesses and the report of the Chemical Examiner was tendered as evidence. In the statement under Section 313 of the Code of Criminal Procedure they pleaded false implication and examined six defence witnesses. The trial court on appreciation of evidence came to the conclusion that the prosecution had failed to prove, the compliance of Section 50 of the Act and accordingly acquitted both the appellants of the charge levelled against them. In this connection the trial court had observed as follows: "In this case, there is non compliance of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, which has been held to be a mandatory. In this case, admittedly no consent memo was prepared. In case State of Punjab vs. Labh Singh,1997 1 RCR 565 where there was no evidence that the accused was informed in writing of his right to be searched before a Gazetted Officer or a Magistrate, and the accused had been acquitted by the Court, the Hon'ble Supreme Court refused to interfere in the order of acquittal. In case State of Punjab-appellant Vs. Kulwant Singh,1994 1 RCR 303 in para No.57 at page 320, it was held by our own Hon'ble High Court that the non compliance of the provisions of Section 50 of the Act would per se result in vitiating the trial and conviction and it would amount to taking away the most valuable and substantive right of the suspected person in establishing his innocence and rendering the recovery of the Narcotic Drugs and Psychotropic Substances is illegal qua the possession of the accused. This shows that the non compliance of the provisions of Section 50 is fatal to the case of the prosecution.";