S.S.GREWAL, J. - (1.) THIS State appeal is directed against the order of Additional Sessions Judge, II, Sangrur dated 2 -4 -1987 whereby Shaminder Singh, the present respondent was acquitted of charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) for recovery of 2 1/2 Kgs of opium from his possession.
(2.) IN brief facts of the prosecution case relevant for the disposal of this appeal are that on 24 -11 -1985, S. I. Harpal Singh along with other police officials was on patrol duty and was proceeding from the police station to village Balian on a tempo. On the way as the police party reached near the drain in the area of village Dhandiwal, the respondent met them. On seeing the police party the respondent tried to slip away. On suspicion he was apprehended and from his personal search 2 1/2 Kgs. of opium was recovered from his possession. Sample was drawn. Both the sample and the remaining opium were separately sealed and taken into possession through seizure memo. After completion of the investigation and on receipt of the report of the Chemical Examiner the respondent was challaned, tried and acquitted by trial Court mainly because of non -compliance of the provisions of Sections 41 to 43 and 50 of the Act. The learned counsel for the parties were heard.
(3.) MR . M. S. Gill, learned Deputy Advocate General, appearing on behalf of the Punjab State submitted that while making search and seizure of contraband opium in this case it was neither obligatory for the Investigating Officer to associate a Gazetted Officer or a Magistrate, nor, non -compliance of procedure relating to search, seizure and arrest embodied in Chapter V (Sections 41 to 58 of the Act) would vitiate the trial. It was further submitted that non -compliance of these provisions may at best amounts to a mere irregularity and not an illegality in following the procedure concerning arrest, seach and seizure of contraband opium. Such an irregularity in the absence of proof of material prejudice to the accused would not either per se vitiate the trial or entitle the accused to acquittal on such procedural technicalities.;