IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 209 of 1999 Date of Decision: 31.5.2010 State of H.P. …Appellant. Versus. Surat Ram …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent: Mr. Vinay Thakur, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 21.01.1999 delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No.1- S/7 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (here-in-after referred to as the Act). 2. The prosecution case, in brief, is that on 25.12.1993 PW-7 ASI Gurdeep Singh was on patrolling duty in Jatog Bazar alongwith PW-3 constable Pawan Kumar. At about 3.30 p.m they noticed that the accused person on seeing 2 the police officials tried to run away. This aroused the suspicion in the mind of PW-7 and he over powered the accused with the help of Shri Pawan Kumar. The accused was given an option as to whether he would like to be searched by the police officials or before a Gazetted Officer or a Magistrate and memo Ext.PW-3/A was prepared in this behalf. The accused opted to be searched by PW-7. He was searched in the presence of witnesses PW-4 Payare Mohan and Sunil Kumar PW-6. From the right side picket of the coat charas was recovered. Weights and scales were called for and on weighment this charas was found to weighing 270 grams. Thereafter two samples of 25 grams each were drawn and sealed with seal ‘x’. The bulk charas and the two samples were taken into possession vide memo Ext.PW- 3/C. Rukka Ext.PW-3/B was sent to the police station and the accused was informed about the grounds of his arrest vide memo Ext.PW-7/A. Special report was also sent to the S.P.Shimla. PW-7 then produced the case property before the SHO Boileauganj, who resealed the case property with his own seal. Thereafter, PW-7 and SHO Boileauganj produced the case property and the accused before the Dy.S.P. who also initialed the recovery memo. One of the samples was sent for analysis to the CTL 3 Kangadhat. Report Ext.PW-7/D was received whereby the expert opined that the stuff contains contents of charas and that the resin was 33.05%. On the basis of this material, the accused was challaned for having committed the offence aforesaid. He has been acquitted by the learned trial Court. Hence, the present appeal by the State. 3. Both the independent witnesses Pyare Mohan and Sunil Kumar did not support the prosecution case and turned hostile. Whereas according to the prosecution the accused was searched in the Jatog bazaar, both these witnesses stated that no search was conducted in their presence but in fact they were called to the Police Station when the accused had already been arrested. One of the reasons which weighed with the learned trial Court while acquitting the accused was that the provisions of Section 50 of the NDPS Act had been violated. The consent memo in this case is Ext.PW-4/B. A perusal of consent memo shows that PW-7 Investigating Officer Gurdeep Singh put a question to the accused as to whether the accused wanted to be searched by the Investigating Officer or by some other Gazetted Officer or Magistrate. The accused was never informed that he had a legal right to be searched by such officers. 4 4. Section 50 of the Act reads as follows: - “50. Conditions under which search of persons shall be conducted. – (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, 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 42 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. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided 5 under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.]” 5. A Constitution Bench of the Apex Court in State of Punjab v. 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 6 Section 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) 6. A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gurajar, 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. 7. Thereafter, the Apex Court in Man Bahadur v. State of H.P., JT 2008 (10) SC 518 again followed the aforesaid judgments 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. 8. In the present case the accused was never informed that he had a right to get himself searched in the presence of the Magistrate or the Gazetted Officer. 7 Therefore, there has been violation of Section 50 and the accused has to be acquitted on this ground alone. 9. In addition thereto, the link evidence in this case is also missing. There is no evidence whatsoever to show that the sample seal impressions were sent to the laboratory alongwith the sample. PW-1 MHC of Police Station Boileauganj only stated that on 26.12.1993 he sent sample sealed with seal ‘X’ and re-sealed with seal ‘M” through constable Misuru Ram to CTL Kandaghat. Misuru Ram only stated that he took a sample parcel which he deposited with the Police Station. Both of them have not stated that Misuru Ram alongwith parcel also took the sample seal impressions. There is no material to show that any docket was sent alongwith this parcel. Therefore, the prosecution has miserably failed to link the stuff recovered with the report. 10. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 31st May, 2010 ( Sanjay Karol ) ™ Judge.