1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 484 of 1997 Decided on September 10, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Amarjeet ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Tarlok Chauhan, Advocate, with Mr.Vijay Chaudhari, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 22.8.1997, passed by Learned Sessions Judge, Chamba Division, Chamba, H.P., in Sessions Case No. 13 of 1997, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act''), acquitting the alleged respondent/accused in reference to FIR No.177/1996 dated 11.10.1996. 2. The prosecution case, is that, on 11.10.1996 at about 11.00 A.M., ASI Jagjit Singh was on patrolling duty alongwith Amar Singh and Chaman Lal, at the bifurcation of Khairi bridge 2 at Banikhet, he apprehended the accused-respondent on suspicion, and told the accused-respondent that he wanted to search him, after apprising him, that he was entitled to be searched before a Magistrate or a gazetted officer in case he did not want to be searched by the police party. On agreeing of accused-respondent, consenting memo was signed by the accused-respondent and witnesses Amar Singh and Chaman Lal. Thereafter, ASI Jagjit Singh conducted the search of the accused and on search, charas was recovered from inside the socks of the accused which he was wearing at that time. On weighment, 700 grams of charas was found, out of which 10 grams were taken from the said charas and thereafter the said samples and the remaining charas were put in three separate parcels which were sealed with seal impression 'T'. Seizure memo was prepared which was signed by the accused and the witnesses. On 4.3.1997 one sample parcel was sent to chemical examiner, Neemuch (M.P.) 3. After investigation, the accused was arrested and charged for the offence under Section 20 of 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 9 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. On behalf of the prosecution, PW.1 Amar Singh, an independent witness, PW.2 MHC Kartar Singh, PW.3 Head Constable Chatter Singh, PW.4 ASI Anjana Sharma, PW.5 Constable Amar Nath, PW.6 Rajinder Kumar SHO, PW.7 3 Constable Bhagat Ram, PW.8 Constable Joginder Kumar and PW.9 ASI Jagjit Singh, were examined. Apart from this, the prosecution has placed on record various documents which are Exts.PA to PM. Ex.PA consent memo, while Ex.PB is the seizure memo. Ex.PC is memo regarding the grounds of arrest, while Ex.PD is Rukka. Ex.PE is the special report, Ex.PF is the copy of wireless, Ex.PG is the copy of FIR. Ex.PH is the memo regardint the resealing of the case property. Ex.PJ is the site plan. Ex.PK is the specimen sample of seal. Ex.PL and Ex.PM are the reports of the chemical examiners. Further, during the trial, the prosecution has also produced sealed parcel of charas which is Ex.P1. 6. On scrutiny of the prosecution witnesses and materials on record, we notice that ASI Jagjit Singh had associated PW.1 Amar Singh as independent witness and no another second independent witness was associated. Sh.Amar Singh (PW.1) was taxi owner-cum-driver, in whose presence the police officials had made personal search and recovered charas as indicated above. The evidence on record would go to show that the occurrence, in question, had taken place at a distance of about 500 meters from Banikhet bazar. The prosecution case is that the accused was apprehended all of sudden. Whereas, PW.1 Amar Singh has stated that he and Chaman Lal, who is also a taxi driver, were going in a taxi from Banikhet to petrol pump and on the way when they had seen the police, they stopped there and in their presence, the accused was apprehended by the police and charas was recovered from him. 4 In cross-examination, PW.1 Amar Singh has admitted that he has been challaned by the police under the Motor Vehicles Act about three-four times. Similarly, he has admitted that he has been providing lift to the police in his taxi. PW.9 has revealed that the police had not stopped his taxi at that time and he and Chaman Lal stopped of their own at that place. As per testimony of PW.1, he and Chaman Lal remained there for about two hours. He has admitted that during the period of two hours, many persons had passed through that place. In cross- examination PW.1 has further stated that after search of the accused, two balls of charas were recovered from the possession of the accused-respondent, which he had hidden inside the socks. However, in cross-examination, he has admitted that charas Ex.P1 contains five balls in one envelope and eleven balls in the other envelope. 7. Testimony of PW.1 Amar Singh, does not appear to be reliable as his presence on the spot becomes doubtful. Further, the evidence on record, is not sufficient to prove the mandatory provisions of Section 50 of 'NDPS Act'. Section 50 of 'NDPS Act' provides that before the authorized police officer conducts the search of the accused, he is required to tell the accused about his right to the effect that he is entitled to be searched before a Magistrate or a gazetted officer, if he does not want to be searched by the authorized police officer. Admittedly, this is a mandatory provision of law and violation thereof would entitle the accused to acquittal. The evidence on record would go to show that the prosecution has failed to lead sufficient and 5 credible evidence so as to prove that the requirements of Section 50 of 'NDPS Act' were complied with before the search of the accused was made. 8. ASI Jagjit Singh (PW.9) before conducting the search of the accused-respondent, had explained to the accused- respondent that he was entitled to be searched by a Judge or a gazetted officer, in case he did not want to be searched by him. PW.9 has further stated that accused had given his consent for search by him. Whereas, PW.1, has stated that Jagjit Singh ASI had explained to the accused that he was entitled to be searched by a Magistrate or a gazetted officer, in case he did not want to be searched by him. However, the contents of consent memo Ex.PA would go to show that the reply of the accused- respondent has not been recorded in a direct narration and the said consent memo has been prepared in abstract manner and in indirect narration. As such, on the basis of the contents of this consent memo, it cannot be inferred that the accused- respondent had actually given his consent tobe searched by ASI Jagjit Singh. Apparently, ASI Jagjit Singh had not told the accused-respondent that he was entitled to be searched before a Magistrate, but he told that he was entitled be searched before a Judge. As such, there is apparent contradiction in the statements of PW.9 and PW.1. In the facts and circumstances, in our considered view the learned Sessions Judge has rightly arrived at a conclusion that the mandatory requirement of Section 50 of 'NDPS Act' has not been complied with. 6 9. In view of the aforesaid facts and circumstances, search was made on a busy place, where two independent witnesses could have easily been associated by the police party, but only one independent witness was associated, who has not supported the prosecution case to the extent he was expected to support the case. Further, the mandatory requirement of Section 50 of 'NDPS Act' was not complied with, in these circumstances, the prosecution cannot be said to have proved its case beyond reasonable doubt. Therefore, in these circumstances, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 10. The bail bonds furnished by the accused/respondent, are hereby discharged. (R.B. Misra) Judge September 10, 2010 (V.K. Sharma) (Purohit) Judge