Criminal Appeal No. 404-DBA of 1999 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 404-DBA of 1999 Date of decision: 11.7.2008. State of Punjab .....Appellant Versus Labh Singh ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. K.S. Dadwal, Additional Advocate General, Punjab. Mr. J.S. Bains, Advocate as Amicus Curiae for the respondent S. D. ANAND, J. The prosecution plea that respondent/accused Labh Singh was found in possession of 19 gunny bags (each containing 40 Kgs of poppy husk) when he was apprehended by the police party consisting of Inspector Mukand Singh, SI Lachhman Singh, HC Paramjit Singh, LC Paramjit Singh No. 472, LC Paramjit Singh No. 225, CS Nachhatar Singh, Gurdip Singh, Jagmel Singh, Boota Singh, PHC Raju Ram, Constable Sinderpal Singh and two section CRPF whose section Commander were S.N.Pathak and Kailash Parshad Naik on 23.10.1992 was negatived by the learned Additional Sessions Judge, Bhatinda (hereinafter referred to as the Trial Judge). The prosecution plea, though supported by the deposition of PW-1 Mukand Singh and PW-1 SI Lachhman Singh in the ocular Criminal Appeal No. 404-DBA of 1999 -2- **** presentation segment was disbelieved by the learned Trial Judge for want of compliance with the provisions of Sections 41 to 43, 50, 52 (3)(a) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereafter referred to as the Act). In that context, it was recorded that the investigating officer did not produce the respondent/accused and the case property before the SHO of the Police Station having jurisdiction in the area. Respondent/accused had also not been presented before the nearest Gazetted Officer of any of the department or nearest Magistrate as indicated in Section 42 of the Act. As apparent from record, the police party was accompanied by an Executive Magistrate, whose independent testimony could have inspired confidence. He was given up at the trial as unnecessary. Obviously, that Executive Magistrate, who was not a Police Officer, could not have been given up as unnecessary because his evidence would have added to the credibility of the prosecution presentation. Further more, the only independent witness associated with the party was given up as having been won over by the respondent/accused. In all fairness the prosecution could not have taken upon itself the exclusive jurisdiction to decide the 'loyalty' of that witness. He ought to have been examined at the trial in order to enable the Court to arrive at its own conclusion with regard to the 'hostility' or otherwise of that witness. In view of the fact that the independent Executive Magistrate was withheld at the trial and so also was the only independent witness concededly associated with the police party, we hold that prosecution could not have succeeded in its plea for conviction of the respondent/accused. Criminal Appeal No. 404-DBA of 1999 -3- **** In that view of things, we do not feel called upon to analyse the premise upon which the impugned finding of exoneration is based. Dismissed. ( S. D. ANAND ) JUDGE July 11, 2008 (ADARSH KUMAR GOEL) Pka JUDGE