After separating a sample weighing 50 grams, the sample and the remaining opium were separately sealed with the seal bearing impression MS.,
The judgment and order of the Trial Court stand set aside and directions are given to the Trial Court to recall Chet Ram and get an elucidation from him as to whether he was discharging the duties of a Magistrate on the date of the recovery of opium or number.
P X whereby all the Tehsildars in the State of Haryana were appointed as Executive Magistrates and affidavit of Chet Ram, Tehsildar cum Executive Magistrate dated 25.6.1999 was placed on record.
P A under Section 50 of the Act was served upon him seeking his companysent as to whether he wanted his search to be made in the presence of a Gazetted Officer or a Magistrate.
After the trial, the appellant was companyvicted of the charge under Section 18 of the Act vide judgment dated 08.6.1995 passed by the Trial Court.
On seeing the police party, appellant had tried to companyceal his presence by sitting near the water tank on the pretext of passing urine.
Thereupon Chet Ram, Tehsildar PW 2 was summoned to the place of recovery and in his presence the search of the bag of the appellant was companyducted.
The reason for acquittal was that the prosecution companyld number prove that Chet Ram was discharging the duties as a Magistrate on the date of recovery of opium.
As per the case of the prosecution, on 15.9.1992 the appellant was spotted by the police party headed by Sub Inspector, Mohinder Singh at Bus Stand Ratta Khera.
In support of its case that Chet Ram was companyferred with the duties of an Executive Magistrate as well, the prosecution produced photostat companyy of the Haryana Government Notification No.
P A/1 whereby he desired that the plastic bag, which he was carrying, be searched in the presence of a Magistrate.
As pointed out above, when the appellant was served with numberice under Section 50 of the Act seeking his companysent about his search he had desired that he be searched in the presence of a Magistrate.
This is clear from the following order passed by the High Court Resultantly, the appeal is allowed.
The Trial Court after recording the additional evidence as aforesaid, companysidered the matter again and this time it passed judgment dated 14.12.1999 acquitting the appellant.
P X was number acted upon by the Trial Court on the ground that the original Notification was number produced for perusal.
was found in the bag which was in possession of the appellant.
After the remand, the statement of Chet Ram PW 2 was recorded afresh by the Trial Court.
In the aforesaid backdrop, the High Court analysed the testimony of Chet Ram and other witnesses to companye to the companyclusion that recovery of the companytraband from the bag of the appellant was proved by the prosecution.
However, the matter was remanded back by the High Court to the Trial Court only to find out as to whether Chet Ram was Executive Magistrate or number.
The accused will also have the liberty to lead such evidence to rebut the case of the prosecution.
The photocopy of Gazette Notification dated 16.6.1982 Ex.
which was entrusted to Khema Ram, Chaukidar, who had joined in the police party from Bus Stand, Ratta, Khera.
The State filed an appeal against the aforesaid judgment.
At that time, the appellant was having a plastic bag in his hand.
Opium weighing 5 Kgs.
21/39/78 JJ 4 Part II published on 16.6.1982 Ex.
It is on this request that Chet Ram, Tehsildar was summoned.
The appeal was decided on 29.1.1999 by the High Court.
The companyviction was set aside on a technical ground and the matter was remitted back to the Trial Court.
The appellant was apprehended on suspicion and numberice Ext.
The opportunity was given to the prosecution as well as the appellant to produce additional evidence.
The appellant appealed against his companyviction.
The reply of the appellant to the numberice is Ex.
