HARBANS LAL, J. - (1.) THIS appeal has been directed against the judgment dated 8th August, 2005 and order of sentence dated 9th August, 2005 passed by the Court of learned Special Judge, Ferozepur whereby he convicted and sentenced the accused to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 1 lac or in default thereof to further undergo rigorous imprisonment for one year under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act').
(2.) THE facts in brief of the prosecution case are that on 17th April, 2001, ASI Rachpal Singh of CIA Staff, Ferozepur among other police officials was proceeding for patrolling by an official vehicle. On the way, ASI Bakshish Singh, Incharge CIA Staff, Ferozepur and other police officials who were on their separate official Gypsy were also joined. When the police party was going from village Kamalgarh to village Katora and reached at a chowk in the area of village Kamalgarh, accused Devi Dyal alongwith two other persons was seen coming on a scooter from the side of village Wara Pow Wind. On catching sight of the police party, they made an attempt to beat a retreat on their scooter. ASI Bakshish Singh made them to stop their scooter. Two persons riding on the pillion alighted from the scooter and started running in different directions. One of them was the accused Devi Dyal, who was nabbed by ASI Rachpal Singh. He was carrying one Jhola (bag) which was hanging from his right shoulder. ASI Rachpal Singh told him that some substance like opium was suspected to be in the bag and it was to be searched. He was made aware of his right to be searched either in the presence of a Magistrate or a Gazetted Officer. ASI Bakshish Singh called DSP Pardeep Kumar at the spot by flashing a message through wireless. He came at the spot and introduced himself to the accused by disclosing his rank and identity. The accused opted to be searched in his (DSP Pardeep Kumar) presence. On search of the bag conducted by ASI Rachpal, opium duly wrapped in a glazed paper was recovered, out of which 20 grams was separated to serve as sample and it was converted into a parcel. The remaining, when weighed came to 4 kg. 500 grams which was also made into a parcel. Both these parcels were sealed with seals 'RS' and 'PK' and seized vide memo. On personal search of the accused, a sum of Rs. 100/- was recovered which were also taken into possession vide separate memo. The accused could not produce any licence or permit for retaining the opium. Ruqa was sent to the police station, where on its basis formal FIR under Section 18 ibid was registered against the accused. The grounds of arrest were disclosed to the accused. A rough site plan showing the place of recovery was prepared by ASI Rachpal Singh. He handed over the entire case property alongwith person of the accused to Station House Officer Palwinder Singh, who after verification of the facts, put his seal 'PS' on both the parcels. He took into possession the case property. SHO Palwinder Singh produced the same before the Illaqa Magistrate for obtaining the order with regard to the retention of the case property. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused under Section 18 ibid.
(3.) THE accused was charged under Section 18 ibid, to which he did not plead guilty and claimed trial.;