IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 212 of 2006. Judgment reserved on: 24.3.2009 Date of decision: 1.4.2009 Ashok Kumar ..Appellant Versus State of H.P ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ?Yes For the appellant: M/s.Ajay Kumar and N.K.Thakur, Advocates for the appellant For the respondent: Shri P.K.Sharma, Additional Advocate General and Shri Rajesh Mandhotra, Dy.Advocate General for the respondent _____________________________________________________ Deepak Gupta, J. This appeal is directed against the judgement of the learned Sessions Judge, Mandi in Sessions Trial No. 23 of 2005, decided on 24.6.2006 whereby he has convicted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred 2 to as the ‘Act’) and sentenced him to undergo rigorous imprisonment for a period of 14 years and to pay a fine of Rs.1,00.000/-. In case of default of payment of fine, the accused has been directed to undergo further imprisonment for two years. Briefly stated the prosecution case is that on 18.11.2004 at about 5.00 a.m., PW/9 ASI Mast Ram alongwith PW/1 constable Bhup Singh, HHC Milkhi Ram and HHC Yuv Raj were on patrolling duty. They had set up a ‘Naka’ near Kali Mata Mandir on the road which leads from Banjar to Aut. The police party noticed a person coming from Bali Chowki side. This person had a black blanket wrapped around himself and he was going towards Aut side. On seeing the police party, this person turned back and tried to run away. This aroused the suspicion of the police officials who chased him and apprehended him on the spot. This person disclosed his name to be Ashok Kumar. PW/9 Mast Ram suspecting that the accused was carrying some contraband gave an option to the accused as to whether he would like to get himself searched through a Magistrate or Gazetted Officer or by the police officials themselves. This option was given vide Memo Ex.PA. The accused agreed for 3 search to the police. The Investigating Officer gave his personal search to the accused vide Memo Ex.PB. Thereafter, the personal search of the accused was conducted and during the search, a polythene packet was discovered under the shirt and vest of the accused. This polythene packet was found under the armpit of the accused. On opening the packet, it was found to be containing some material smelling like charas. The said charas was weighed and was found to weigh 3 kilogram. Two samples of 25 grams each were drawn. The bulk charas and two samples were sealed in separate parcels and sealed with seal ‘M’. The seal was taken into possession vide memo Ex.PC. PW/9 Investigating Officer filled the seizure form Ex.PD and Ex.PD/1 in the presence of witnesses. Specimen impressions of the seal were obtained on cloth which is Ex.PP. The NCB form Ex.PO was filled by the Investigating Officer and seal impression ‘M’ was affixed on this form. Other formalities were completed. The accused was arrested. Thereafter, the case property alongwith NCB form, specimen seal etc. were deposited by PW/9 with ASI PW/7 who resealed the parcels of the sample and bulk charas with seal ‘S’ and specimen of seal ‘S’ was also placed on the cloth. 4 Thereafter the entire case property was deposited in the Malkhana under the control of PW/4 who entered the same in the Malkhana register. Copy of the abstract is Ex.PF. On 18.11.2004 PW/4 handed over one sample to PW/5 Bhuri Singh to deposit the same at C.T.L, Kandaghat vide road certificate No.110/04. This sample was deposited and on analysis, it was found to be a sample of charas. Thereafter, the Challan was filed and the accused was charged for the aforesaid offence. After completion of the trial, the accused has been convicted and sentenced as detailed, hereinabove. Hence the present appeal. The main contentions raised by the learned counsel for the appellant is that there is non-compliance of Section 50 of the Act and as such, the search is totally illegal. A perusal of the Search Memo Ex.PA shows that the accused was given choice as to whether he wanted to get himself personally searched through a Magistrate or any Gazetted Officer or by the Investigating Officer. This is what is being stated by PW/9 Investigating Officer and other police officials also. It has been urged that the accused was not informed that he had a right to get 5 himself searched before a Magistrate or before a Gazetted Officer. Shri N.K.Thakur, learned counsel for the appellant urged that not only must the accused be given the choice but he should also be told that he has a right to get himself searched before a Magistrate or a Gazetted Officer. A Constitution Bench of the Apex Court in State of Punjab versus Baldev Singh, 1999(6) SCC 172, has clearly held that the accused has a right to be made aware of his right to get searched before a Magistrate or Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda v. Arizona [384 US 436], the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search. It was thereafter held as follows: “57 On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 6 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused.” (emphasis supplied) A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat 2007 (1) SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate. Thereafter, the Apex Court in Man Bahadur versus State of H.P. JT 2008 (10) SC 518 again followed the aforesaid judgements and held that not only the consent of the accused should be taken but the accused must also be informed of his right to get himself searched in the presence of the Magistrate. In the present case, the consent memo does not show that the accused was informed that he had a right to be searched before a Magistrate or a Gazetted 7 Officer. No doubt, he was asked as to whether he would be liked to be searched through a Magistrate or a Gazetted Officer or by the Investigating Officer. However, this is totally different from informing him that he has a right to be examined before a Magistrate or Gazetted Officer. The consent of the accused was, therefore, not obtained in accordance with the provisions of the Act. Since the accused was not informed that he had a right to get himself searched before a Magistrate or a Gazetted Officer, the search was not conducted in accordance with law. The personal search being illegal and not in conformity with Section 50, the accused cannot be convicted on the basis of any alleged contraband purported to be recovered in consonance of such an illegal search. Therefore, on this short ground, we are of the considered view that the judgment of the learned Sessions Judge is illegal and liable to be set aside. We, therefore, allow the appeal filed by the accused. The conviction and sentence imposed upon the accused by the learned Trial Court is set aside. The accused being in 8 custody is ordered to be released at once in case his detention is not required in any other case. ( Deepak Gupta ) Judge 1st April, 2009 (V.K.Ahuja) (m) Judge