JUDGMENT [ENTITY], J.
1. The present appeal through Jail has been preferred by the appellant, hereinafter referred to as the accused, against the judgment dated 7/8-4-1998 of the learned Special Judge (Sessions Judge), Kullu in [CASE NUMBER] whereby the accused has been convicted of the offence under [SECTION] of the [ACT] (for short 'the Act') and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. one lac. In default of payment of fine, the accused has been sentenced to undergo simple imprisonment for a further period of one year.
2. Briefly, the prosecution story may be thus stated. On 6-12-1996 at about 11.45 a.m., PW-9 Sub Inspector [ENTITY], the then Station House Officer of Police Station, Banjar, received a secret information about the presence of a stranger (accused) at Bus Stand, Banjar carrying a bag and that there was a possibility of "Charas" being carried by him. Finding the information reliable, PW-9 recorded a report in the Daily Diary. Necessary information was also sent by him to his immediate Supervisory Officer as well as the District Superintendent of Police through wireless. PW-9 then constituted a raiding party consisting of himself. Head Constable [ENTITY] and two independent witnesses [ENTITY] and [ENTITY]. The accused was found standing at the Bus Stand carrying a bag. On being asked the accused gave out his name as [ENTITY]. The accused was informed by PW-9 that he (PW-9) had a suspicion that he (the accused) was possessing "Charas" and that a search of his (accused) person and bag was to be carried out. The accused was further asked if he would like to be searched by PW-9 or before a Gazetted Officer or a Magistrate. The accused gave his option to be searched by PW-9 under memo Ex. PA. Nothing incriminating was found during the personal search of the accused. However, during the search of the bag, "Charas" in the shape of sticks wrapped in a polythene bag was recovered to be 1.900 Kg. Two samples weighing 25 gms. each were taken out and separately sealed. The remaining "Charas" recovered was separately sealed and taken into possession. The accused after being informed of the grounds, was arrested. Special report regarding recovery of "Charas" and arrest of the accused was sent by PW-9 to his immediate superior. The sample on being analyzed by the Chemical Examiner was found to be that of "Charas". On completion of the investigation, the accused was sent up for trial.
3. On having been charged for the offence under [SECTION] of the Act, the accused pleaded not guilty and claimed trial.
4. The prosecution in support of its case examined nine witnesses in all the case of the accused as set out in his statement recorded under [SECTION], [ACT], is that of denial simpliciter and false implication. In answer to question No. 24 of his statement the accused has stated in the following terms :
English and I belong to Maharashtra State. I know little Hindi. I was never intercepted by police at bus-stand Banjar. In fact I was called to police station Banjar where some papers were prepared by the police I was asked to sign those papers under threat forcibly. I am innocent and no charas etc. was recovered from me.
5. No evidence was led by the accused. The learned special Judge upon consideration of the evidence led before him, convicted and sentenced the accused as aforesaid vide judgment dated 7/8-4-1998.
6. The learned counsel for the accused while assailing the conviction and sentence imposed upon the accused by learned special Judge, has raised the following two contentions :-
(i) There has been non-compliance of the mandatory provisions of [SECTION] of the Act; and
(ii) Independent witnesses not joined and associated during the search. Only stock witnesses associated.
7. The learned Additional Advocate General Shri [ENTITY], on the other hand, has supported the conviction and sentence imposed upon the accused by the learned Special Judge on the grounds and for the reasons set out in the impugned Judgment dated 7/8-4-1998. It was also contended that all the necessary requirements of law were duly complied with while carrying out the search and that the offence, offence stands proved against the accused beyond a reasonable doubt.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. The first question arising for determination is whether the provisions of [SECTION] of the Act are applicable to the facts of the present case when the incriminating article was recovered from a bag being carried by the accused.
[SECTION] of the Act provides :
(1) When any officer duly authorised under [SECTION] is about to search any person under the provisions of [SECTION], [SECTION] or [SECTION], he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in [SECTION] or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in Sub-section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
10. The scope of [SECTION] of the Act came up for consideration before the Hon'ble Supreme Court in [PRECEDENT]. In the said case the accused therein were found carrying 34 kgs. of poppy husk in 70 bags. The trial Court acquitted all the accused on the ground that the requirements of [SECTION] of the Act were not complied with. The High Court of Punjab and Haryana affirmed the acquittal. On further appeal by the State of Punjab, the Hon'ble Apex Court while maintaining the acquittal as recorded by the learned trial Court observed :
Having considered the evidence we find it difficult to set aside the order of acquittal recorded by the Additional Sessions Judge. Though the offence involved is of a considerable magnitude of 70 bags containing 34 kgs of poppy husk, each without any permit/licence, this Court is constrained to confirm the acquittal for the reasons that the mandatory requirements of [SECTION] of [ACT] has not been complied with. Protection given by [SECTION] is a valuable right to the offender and compliance thereof intended to be mandatory.
11. Again in [PRECEDENT], the accused therein, a Nigerian national, was leaving India on 23-6-1987 by Air India Flight from Delhi to Lagos via Bombay. He had reported for customs clearance at the Indira Gandhi International Airport, New Delhi. A team of Narcotics Control Bureau present at the Airport suspected him and decided to check his luggage. The accused was first asked if he was carrying any narcotics or other contraband articles and on his refusal, his luggage was searched. At the point of time when the actual search took place, he was carrying two handbags but nothing incriminating was found therefrom. He had, however, booked one bag which had already been checked in and was loaded in the aircraft by which he was supposed to travel. This bag was called to the customs counter for examination. On examination 153 cartons of tetanus vaccine were recovered. On being opened, 152 cartons were found to contain ampoules whereas the remaining one carton contained polythene packet containing brown-coloured powder packed with black adhesive tape. It was weighed and found to be about 180 gms. Since the powder was suspected to be heroin, it was seized. On analysis, it was found to be heroin. The accused was put to trial and he was convicted for the offences under [SECTION] and [SECTION] of the Act. Before the Hon'ble apex Court a contention was raised that there has been a violation of the mandate of [SECTION] of the Act. It was held :
On a plain reading of [SECTION], it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to [SECTION] which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that: person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with [SECTION] of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found and on search, incriminating articles are found therefrom it cannot attract the requirements of [SECTION] of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case, it is difficult to hold that [SECTION] stood attracted and non-compliance with that provision was fatal to the prosecution case.
12. Further a constitution Bench of the Hon'ble Apex Court in [PRECEDENT] without expressing any opinion as to whether the provisions of [SECTION] of the Act are mandatory or not, has held that bearing in mind the purpose for which the safeguard has been made, the provisions of [SECTION] of the Act implicitly make it imperative and obligatory and cast a duty on the empowered officer to ensure that the search of the person (suspect) concerned is conducted in the manner prescribed by [SECTION] of the Act. It was further held that on its plain reading, [SECTION] of the Act would come into play only in the case of a search of a person as distinguished from the search of any premises etc.
13. In [PRECEDENT], the accused therein, a foreign national arrived at Bombay by a foreign airline. On information received, the intelligence officer of Narcotics Control Bureau accompanied by the Assistant Director and another Officer made the accused to open his baggage which was found to contain 2 kgs. of brownish powder. The test revealed that the same was heroin. The accused upon trial was convicted for the offences punishable under [SECTION] read with [SECTION] and Section [SECTION] and [SECTION] of the Act. He was also convicted under [SECTION] of the [ACT]. The decision was confirmed with slight modification by the High Court of Bombay. On further appeal before the Hon'ble Apex Court, it was, inter alia, contended that there had been non-compliance of the requirements of [SECTION] of the Act. Reliance was placed on behalf of the accused on the decision of the Hon'ble Apex Court in [PRECEDENT] (supra) wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a Gazetted Officer or a Magistrate.
14. Repelling the contentions, the Hon'ble Apex Court held that the ratio laid down in [PRECEDENT] (supra) now stands overruled by the decision of the Constitution Bench in [PRECEDENT] (supra). It was further held that if a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found therefrom, it cannot be said that it was found from his "person". Therefore, [SECTION] of the Act would not be applicable to such a situation. A similar view was taken in [PRECEDENT] and in [PRECEDENT].
15. The view taken in [PRECEDENT] (supra) on which reliance has been placed by the learned counsel for the accused and which is similar to the one taken in [PRECEDENT] (supra) in view of what has been held by the Constitution Bench of the Hon'ble Apex Court in [PRECEDENT] (supra) and Ors. subsequent decisions of the Hon'ble Apex Court in [PRECEDENT] (supra), [PRECEDENT] (supra) and in [PRECEDENT] (supra) stands impliedly overruled and as such cannot be pressed into service by the accused.
16. A Division Bench of this Court also in [PRECEDENT] of which one of us ([ENTITY], J.) was a Member, has held that the provisions of [SECTION] of the Act would not be attracted when the recovery of the incriminating article was effected from a haversack and not from the person of the accused.
17. In the present case as well since the recovery of "Charas" was effected from the bag being carried by the accused and not from the person of the accused, [SECTION] of the Act would not be attracted and its non-compliance, if any, will have no effect on the prosecution case.
18. Even if for the sake of arguments, it is taken that the provisions of [SECTION] of the Act are applicale, there is evidence on the record about its due compliance. The witnesses examined have stated about the accused having been informed of his right of being searched before a Magistrate or a Gazetted Officer.
19. The Apex Court in [PRECEDENT] where the accused was informed that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate", has held that there has been substantial compliance with the requirement of [SECTION] of the Act.
20. The accused in the present case was also informed likewise vide Ex. PA. Therefore, there has been substantial compliance with the requirement of [SECTION] of the Act.
21. As per the prosecution case two independent witnesses, namely, S/Shri [ENTITY] and [ENTITY] were associated at the time of search when "Charas" was recovered from the bag of the accused. While [ENTITY] has been examined as PW-1, Shri [ENTITY], the other witness of the recovery has not been examined. It was contended on behalf of the accused that PW-1 [ENTITY] cannot be said to be an independent witness. He is a stock witness of the police since it is in his own statement that he had appeared as a witness for the police in two cases in the past.
22. There is no force in the contention of the learned counsel for the accused. Merely because PW-1 had in the past appeared as a prosecution witness in two cases will not render him as a "stock witness" in the absence of any other evidence to show that he is a stock witness.
23. Further in [PRECEDENT], it has been held by the Apex Court that it is now well settled that evidence of search and seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by independent witnesses.
24. No other point was urged before us.
25. Resultantly, the present appeal being devoid of any merit, is dismissed accordingly. The case property be dealt with as per directions of the learned trial Court. Let a copy of this judgment be sent to the accused through Superintendent, Jail for his information.
26. Before parting, we place on record our appreciation for the valuable assistance rendered by Ms. [ENTITY], Advocate, who was appointed counsel for the accused by providing him necessary legal aid.