IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 394 of 1996 Date of Decision : February 26, 2010 State of H.P. Appellant Versus Kewal Ram Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Vivek Thakur, Addl. Advocate General with Mr. R. M. Bisht, Dy. Advocate General for the appellant. For the respondent : Mr. H. K. S. Thakur, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal is directed against the judgment dated 13.10.1995 passed in Sessions Trial No. 3-S/7 of 1994 by the learned Sessions Judge, Solan, H.P. whereby he acquitted the accused for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution case in brief is that on 4.1.1994 Inspector Niranjan Singh (PW-10) was on patrolling duty along with constable 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Mewa Singh and HC-Surjeet Singh in Dharampur bazaar. At about 1.15 P.M. ASI-Baldev Ram, Police Post, Dagshai and constable Rajpal met him in the bazaar. Then he received secret information that one person namely Kewal Ram who is at Dagshai dairy farm is dealing in Charas. Then he formed a raiding party consisting of all the police officials and also associated two local independent witnesses namely Sh. Mangat Ram and Sh. Gurmail Singh. These persons reached Dagshai road near the Army workshop. In the meantime at about 1.30 P.M. Sh. Dhian Singh (PW-9) Dy. S.P. Parwanoo also came from Parwanoo and stopped his vehicle. PW- 10 informed PW-9 about the secret information and thereafter PW-9 took over control of the party. He then deputed these officials to search for the offender. After some time one person came from Dagshai side and on seeing the police tried to run away. He was overpowered and disclosed his name to be Kewal Ram. PW-9 then asked him whether he would like to be searched before a Magistrate or police. The accused consented to be searched by the police officials. On search 100 grams Charas was recovered from the right pocket of his pant. Two samples of 25 grams each were drawn from this. The two sample parcels and the remaining parcel of Charas were sealed with seal-T and deposited in the Maalkhana. One of the samples was sent to C.T.L. Kandaghat and it was opined that the sample was of Charas and the resin content was 29.77%. After trial the accused was acquitted mainly on the ground that there is non 3 compliance of Sections 42(1) and 50 of the Act and also non compliance of Section 57 of the Act. Section 57 of the Act is not mandatory and therefore we shall confine ourselves to non compliance of Sections 42(1) and 50 of the Act. Admittedly this was a case of prior information and the information received was that the accused is dealing in Charas and is residing at Dagshai dairy farm. It is not the case of PW-10 that they had information that the accused was coming towards Dharampur bazaar. He just happened to do so. Therefore he should have recorded the information received by him in writing in terms of Section 42(1) of the Act and thereafter sent the information to his immediate superior. It is urged before us that since the police party was on patrol duty this information could not be recorded and reliance is placed on the judgment of the Apex court in Karnail Singh versus State of Haryana (2009) 8 SCC 539. We are afraid that this authority does not come to the support of the prosecution in the present case. The Apex Court has no doubt held that writing of the information is not necessary when circumstances are such that the same cannot be reduced into writing. One of the examples given is that when the information is received when the police party is on patrol duty. Here, however there are sufficient circumstances to show that PW-10 had sufficient time to record the statement. Admittedly he received the information at about 1.15 P.M. At that time he was in the bazaar with PW-8 and one Head-constable and 4 two constables. The police station is close by. They did not immediately proceed to Dagshai Dairy farm where the accused was stated to be residing. In fact some time later at about 1.30 P.M. PW-9 also arrived. There was sufficient time to comply with the provisions of Section 42 of the Act. Therefore there has been violation of Section 42 of the Act. We also find that the provisions of Section 50 of the Act have been totally violated. Admittedly this is a case where the search of the accused was conducted on suspicion that the accused was carrying contraband substance. The accused had to be given an option of being searched before a Gazetted Officer or a Magistrate. He should have been informed of his right to do so in view of the law laid down by the Apex Court in State of Punjab versus Baldev Singh, (1999) 6 SCC 172; Vijaysinh Chandubha Jadeja versus State of Gujarat, (2007) 1 SCC 433 and Man Bahadur Versus State of H.P. JT 2008 (10) SC 518 followed by this Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557. The option given in the present case reads as follows: “ I, D. S. Guleria, Dy. SP do hereby call upon you to exercise your option qua your personal search by me or some Magistrate, in connection with charas and opium.” This option is not at all in accordance with Section 50 of the Act which mandates that the accused should be informed that he has a right to be searched before a Gazetted Officer, Magistrate or a 5 Police Officer. No option of being searched before a Gazetted Officer other than police officer was given. The accused was not informed of his right of being so searched. In view of the above discussions we find that the provisions of Sections 42 and 50 of the Act have not been complied with. There is no merit in the appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. February 26, 2010 (PK)