IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 314 of 1997. Decided on: 21.06.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Sohanjit Singh … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajinder Dogra, Addl. A.G. and Mr. Anil Jaswal, Deputy Advocate General. For the Respondent : Mr. Ashish Verma, Advocate vice Mr. Anuj Nag, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 2.5.1992, passed by the learned Sessions Judge, Solan, HP, in case No. 7-S/7 of 1992, acquitting the respondent-accused for the alleged offence, under Sections 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 3. Prosecution case is that on 27.4.1991 at about 6.00 p.m. S.I. Basher Singh while on patrol duty along with other police officials observed one person coming from the side of village Kotla, who on seeing the police party, tried to escape. However, he was 1 Whether reporters of the local papers may be allowed to see the judgment? 2 apprehended and upon getting suspicion, SI Basher Singh expressed his intention to take the search of the accused and he enquired from him whether he would like to be searched by him or before a gazetted officer. The accused agreed and consented to be searched by S.I. Basher Singh. During search by S.I. Basher Singh, 50 grams of opium wrapped in polythene paper was recovered from inside the pocket of the pant of the accused. Opium so recovered was taken into possession. Thus, a case under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 was registered at Police Station, Barotiwala, vide F.I.R. No. 10 of 1991. After completion of the investigation, accused was challaned and sent up for trial. 4. In order to prove its case, prosecution examined as many as six witnesses. In his statement under Section 313 Cr.P.C., the accused has shown his innocence and has denied the prosecution case. 5. As per testimony of PW-6, S.I. Shri Basher Singh, he apprehended the accused on suspicion, who was apprised whether he wants to be searched by police official on the spot or by a Gazetted Officer or by a Magistrate. The accused consented for his search by PW-6, S.I. Basher Singh. On his consent for being searched by PW-6, his statement was recorded to this effect. 6. PW-1 Shri Diwan Chand has stated that on search of accused, 50 grams of opium was recovered from the pocket of his pant, which was wrapped in plastic paper. However, the police officer carrying out the search never gave his own search before carrying out the personal search of the accused. PW-1 in his cross- 3 examination has stated that his signatures were obtained on the documents which were prepared on the spot. 7. PW-2 Shri Kamlesh Kumar has stated that weighing machine along with weights was taken from his shop. PW-3 Shri Shyam Sunder has recorded F.I.R. Ext. PW-3/B after receiving Ruka Ext. PW3/A. On 27.4.1991, the case property was deposited with him by PW-6. On 30.7.1991, PW-3 has sent the sample through Constable Bhupender Singh to Chemical Examiner, Kandaghat. PW-4 Bhupender Singh has stated that in discharge of his duties he has performed the job assigned to him. However, nothing particular could be derived from his testimony. 8. PW-5, S.I. Shri Ramna Ram, Police Station, Barotiwala, District Solan has stated that after investigation of the case by PW-6, Shri Basher Singh, he prepared the challan. 9. PW-6 Shri Basher Singh has stated that he along with HC Nasib Chand, Ramesh Kumar, Constable Shiv Kumar and Bagga Ram was on patrol duty and were going towards Kotla and in between Diwan Chand, Lambardar was also associated and it was observed that the accused was coming from village Kotla going towards village Sattiwala. On seeing the police party, the accused tried to run away. On suspicion, the accused was apprehended by the police with the help of Diwan Chand and he was told that he is required to be searched and as such, he was given the option if he wants to be searched by the senior/superior Officer, he can be taken to the gazetted officer. On permission by the accused, search was made and opium wrapped in polythene paper was recovered from his pocket. In cross-examination, PW-6 4 has stated that he never gave his own search before carrying out the search of the accused. 10. On careful scrutiny of the prosecution witnesses, it has come to light that instead of two independent witnesses of the concerned area, only one independent witness of the locality was associated, namely PW-1, Shri Diwan Chand and for the reasons best known to the prosecution, no other independent witness could be associated and on suspicion the accused was searched. However, he was not made to know that he was having right to be searched. The learned Sessions Court has dealt with non- compliance of Section 50 (1) of the Narcotic Drugs & Psychotropic Substances Act in detail and has also observed that the provisions of Sections 52 (1) requires that an Officer making arrest of a person under Sections 41, 42, 43 and 44 shall as soon as may be, inform him of the grounds of such arrest. However, there is nothing on record to show that these provisions have been complied with. S.I. Basher Singh while making the search for recovery of opium in fact was required to apprise the accused whether he wants to be searched by the police party. S.I. Basher Singh, who searched the accused had only apprised the accused to be searched as per Ruka, however, in his statement, he only apprised that whether he wants to be searched by him or by some superior officer. This aspect of inquiry before search is not a compliance of the provisions of Section 50 of the NDPS Act. In view of the JT 2010 (2) SC 175 Ajmer Singh vs. State of Haryana, provisions of Section 50 of NDPS Act are relevant in reference to personal search of an accused. 5 11. A Constitution Bench of the Apex Court in State of Punjab Versus Baldev Singh, 1999(6) SCC 172, has observed that the accused as 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 has observed 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 further observed 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 authorized officer acting on prior information is about to search a person, it is imperative for him 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 search before a Gazetted Officer or Magistrate would cause prejudice to an accused (emphasis supplied) A three Judge Bench of the Supreme Court in Vijaysinh Chandubha Jadeja V State of Gujarat 2007 (1) SCC 433, has noticed the aforementioned verdict 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, Apex Court in Man Bahadur Versus State of HP, JT 2008 (10) SCC 518 6 again followed the above 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 Magistrate.” 12. Following the above decision, the Division Bench of the High Court of Himachal Pradesh in State of HP Vs. Fateh Singh Latest HLJ 2009 (HP) 684 has also taken the similar view as well as by a Division Bench of this Court in State of HP Vs. Vikas Sharma in Criminal Appeal No. 181 of 1997, decided on 18.6.2010. 13. On scrutiny of the prosecution witnesses and material on record, we find that mandatory provisions of section 50 of the ‘NDPS Act’ has not been complied with. In such circumstances, the prosecution case has vitiated. 14. In these circumstances, learned trial court has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt and in our considered view also, the prosecution has failed to bring home the guilt to the accused and for lack of compliance of mandatory provisions of Section 50 of NDPS Act, the case of prosecution is vitiated. 15. Resultantly, the appeal fails, being devoid of any merit, as such the same is dismissed. Bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 21, 2010. (cr) 7