- (1.) This appeal is directed against the judgment and order dated 4.4.2003, passed by the Court of learned Judge, Special Court, Amritsar vide which, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the Act'). The facts necessary for adjudication of the matter as narrated in para No. 1 of the impugned judgment are as under:-- On 19.3.1999, Inspector Balbir Singh alongwith other police officials was present in the area of village Dalam in connection with patrolling and checking of bad elements, when he received a secret information that accused is habitual in selling opium and he can be apprehended on the turn of village Mehalanwala. Accordingly, naka was proposed and the accused alighted from a bus. He was apprehended and he was informed that there is a suspicion that he was having some narcotic material and his search is to be conducted and whether he wanted his search in the presence of a gazetted officer or Magistrate and the accused wanted his search in the presence of gazetted officer and consent memo exhibit PA was prepared. Then a wireless message was sent to Mr. S.S. Mann, D.S.P., who reached at the spot and disclosed his identity to the accused as D.S.P. and a gazetted police officer and he also asked the accused about his right to be searched in the presence of a Magistrate or a gazetted officer. However, the accused reposed confidence in him and stated that his search can be conducted in his presence and accordingly, he attested the consent memo. Exhibit PA. Then as per the directions of Mr. SS Mann, D.S.P., search was conducted by Inspector Balbir Singh, which yielded recovery of opium from the bag carried by the accused in his right hand, out of which 10 grams was separated as sample and the remaining on weighing came to 490 grams. Both the sample and the bulk were made into parcels, duly sealed with seals 'BS' and 'SSM' Sample seals were also prepared and case property, sample and sample seals were taken into police possession vide memo. Exhibit PB. Further search of the accused yielded recovery of Rs. 250/-, which were taken into police possession vide memo, exhibit PC. Arrest memo, exhibit PD was also prepared. Ruqa exhibit PF was sent to the police station, on the basis of which FIR exhibit PF/1 was recorded. Rough site plan of the place of recovery exhibit PG was prepared with its correct marginal notes. On return to the police station, case property, sample and sample seals were kept in the double lock. On 30.3.1999, sample was sent to the office of the Chemical Examiner through Constable Gulzar Singh and report of the Chemical Examiner was received as exhibit PH, vide which opinion has been given that it was that of opium containing Morphine 2.8%.
(2.) After completion of the investigation, the challan was presented in the Court. The accused was charged under Section 18 of the Act, to which, he did not plead guilty and claimed trial.
(3.) In order to substantiate the charges, the prosecution has examined the following witnesses:-- P.W.1 Inspector Balbir Singh, the Investigating Officer, deposed that on receipt of secret information, they held naka on the turn towards Mehanwala and apprehended the accused and recovered opium from him. The case property, sample and sample seal were kept by him. P.W.2 H.C. Baldev Raj, tendered his affidavit Ex. PJ in evidence. P.W.3, D.S.P. SS Mann, in whose presence, the search was conducted and the sample seal was handed over to A.S.I. Gurinderpal Singh.;