IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 75 of 1995 Judgment reserved on: 24.2.2009 Date of Decision: 26th February, 2009 State of H.P. …. Appellant. Versus. Fateh Singh …..Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge Whether approved for Reporting? yes. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General for the State For the Respondent: Mr. N.D.Sharma, counsel for the respondent. Deepak Gupta, J. This appeal is directed against the judgment of the learned Sessions Judge, Shimla in Sessions Trial No. 65-S/7 of 1993, decided on 29.3.1994 whereby he has acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). Briefly stated the prosecution case is that on 4.8.1993 A.S.I. Chandan Singh (PW9) received secret information that one person is roaming in Ganj Bazar, Shimla and suspected that this person is having some contraband substance. Thereafter, Chandan Singh sent information to the Additional S.P, Shimla through constable Krishan Kumar. In the meantime, near the shop of one Tulsi Ram, the police party led by Shri Chandan Singh came across the accused. The accused tried to run away but was over powered and apprehended. Thereafter, consent for his search was procured before two independent witnesses Tulsi Ram and Ashwani Kumar and he was thereafter, searched and opium weighing 110 grams was recovered. Out of this Opium, two samples of 10 grams each were drawn and sealed as sample parcels. The two sample parcels and the remaining bulk Opium were sealed with Seal A and the seal was handed over to Shri Tulsi Ram. Thereafter, the accused was informed of the grounds of the arrest and was arrested. The samples were deposited with the Malkhana. It is pertinent to mention here that admittedly, the Incharge of the Police Station, i.e. PW/1 Kuldeep Chand, Inspector did not affix his seal when PW/9 ASI Chandan Singh deposited the parcels with him. On examination by the Chemical Examiner, the samples were found to be of the Opium. Challan was filed against the accused and the accused pleaded not guilty and claimed trial. After trial, he has been acquitted. Hence the present appeal by the State. From the evidence on record, it is apparent that PW/9 alongwith other police officials was on patrolling duty in Ganj Bazar, Shimla on 4.8.1993. He received secret information that one person namely Fateh Singh is roaming in Ganj Bazar and contraband can be recovered from him. He prepared a Ruqua in this behalf and sent the same to the Additional S.P. This Ruqua has not been proved on record. It is also clear from the evidence that the accused was apprehended near the shop of one Shri Tulsi Ram. PW/6 Ashwani Kumar who is an independent witness has stated that the police had apprehended the accused and the witness then asked the police party to come inside the shop because it was raining. Thereafter, the Additional S.P also came to the spot. PW/9 Chandan Singh also states that the accused was apprehended before PW/10 R.M.Sharma, Addl.S.P reached on the spot. Additional S.P however, states that when he received a Ruqua sent by PW/9, he immediately proceeded towards the Ganj Bazar and when he was making enquiries from the police party, the person having similar identification as the accused was found in the Ganj Bazar and on seeing the police party, he tried to run away. The version of Shri R.M.Sharma is totally different to that of PW/6 Ashwani Kumar and PW/9 Chandan Singh. Tulsi Ram who is the other independent witness was not examined. PW/8 constable Krishan Kumar who was also a member of the police party states that he was asked by PW/9 Chandan Singh to hand over the Ruqua to the Additional S.P. He handed over the same to the Additional S.P and then he returned alongwith the Additional S.P Shri R.M.Sharma to the Ganj Bazar and in the meantime, the accused was apprehended. It is apparent from the entire evidence that in fact, the accused had been apprehended before the Additional S.P reached the spot and the prosecution is giving two different versions. Thereafter, it is alleged that consent of the accused was taken for a search in terms of the provisions of the Act. By the consent Memo, the accused was given the option of getting himself searched from a Magistrate or by Shri R.M.Sharma, Gazetted Police Officer. This consent is not in accordance with the provisions of Section 50 of the Act. 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 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. Thereafer, 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 PW6/A does not show that the accused was informed that he had a right to be examined before a Magistrate. No doubt, he was asked as to whether he would be likely to be searched from a Magistrate. However, this is 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. There are other lacunae in the prosecution case also. This was a case where the Additional S.P himself was the Investigating Officer. When the sample parcels were being deposited, it was, therefore, all the more necessary that the Incharge of the police station should have put a seal on the sample parcel in accordance with Section 55 of the Act. No doubt, it has been held that the provisions of Section 55 are only directory in nature. However, in a case like the present where the Investigating Officer is a senior Police official, it is necessary for the Incharge of the police Station taking charge of the sample to seal the same to avoid any charges that the sample had been tempered with. When the seal was not affixed, there could be genuine apprehension in the mind of the accused that the Investigating Officer could have manipulated the parcels at a later stage. Keeping in view the aforesaid discussion and the discrepancies in the prosecution case, the learned Trial Court rightly acquitted the accused. We find no merit in the appeal filed by the State. The same is accordingly dismissed. Bail bonds, if any furnished, are ordered to be discharged. (Deepak Gupta ) Judge. 26th February, 2009 ( V.K.Ahuja ) (m) Judge