IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 704 of 2000 Decided on: 1.12.2010 State of H.P. ..…Appellant Versus Rajbir Singh. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 No. For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondent : None. Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 18.3.2000, accused was put to trial. In terms of judgment dated 14.8.2000, passed by learned Sessions Judge, Sirmaur, District at Nahan, H.P., in Sessions Trial No. 38-ST/7 of 2000, titled as State of H.P. Vs. Rajbir Singh, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 18th of March, 2000, at about 12.30 P.M. (noon), H.C. Babu Ram along with C. Balak Ram was on patrol duty at Meenus Pul (bridge). 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 There they saw the accused carrying a bag in his hand. Seeing the police party, accused got perplexed and started running backwards. On suspicion, accused was apprehended by the police party with the help of one Kanti Ram. On enquiry accused disclosed his name as Rajbir Singh. Accused was given an option of being searched to which he agreed. Consequently, accused was searched by HC Babu Ram (PW-6) and one Kg. of contraband substance was found from him. Three samples of 25 grams each were taken out from the bulk stuff and packed separately. The stuff and the samples were sealed with seal impression ‘H’. Rukka (Ext.PD) was sent to the Police Station, Shilai where FIR No.14 (Ext.PD/1) was registered under Sections 20 of the N.D. P.S. Act. Case property was deposited in the malkhanna and samples sent for Chemical analysis. Report of the Chemical Examiner (Ext.PH) was obtained by the police. As per the report contraband substance was found to be ‘charas’. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘Act’), to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined seven witnesses and the statement of accused under Section 313 Cr.P.C. was also recorded. 3 5. The trial Court acquitted the accused, inter-alia, on the ground that mandatory provisions of Section 50 of the Act were not complied with by the police. 6. Having gone through the record, we are of the considered view that no ground for interference is made out in the instant case. 7. There is no written memo on record whereby accused was informed of his right of being searched in the presence of Gazetted Officer or Magistrate. HC Babu Ram in his testimony only states that consent of the accused was obtained. According to this witness, before conducing the personal search accused was asked as to whether he would like to be searched by him or the Gazetted Officer. Importantly, Babu Ram does not state that the accused was in fact informed of his right of being searched before a Gazetted Officer, a Police Officer or a Magistrate. 8. The Apex Court in case State of Punjab versus Baldev Singh, AIR 1999, SC 2378, has held that provisions of Section 50 of the Act are mandatory. It obliges the official concerned to inform the person to be searched of his legal right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. 9. In Saiyad Mohd. Saiyad Umar Saiyad and others versus State of Gujrat, (1995) 3 SCC 610, the Apex Court further held that if no evidence to the effect is given by Officer concerned, Court would assume that the person to be searched was in fact not informed of the said protection and that 4 provision of illicit contraband carried by the accused cannot be said to be established. 10. In Manohar Lal versus State of Rajasthan, (1996)11 SCC 391, and in Raghbir Singh versus State of Haryana, (1996)2 SCC 201, the Hon’ble Apex Court has further held that the choice has to be made by the police officer making the search and not by the accused. This view has subsequently been reiterated by the Apex Court in Ajmer Singh versus State of Haryana, (2010)3 SCC 746 wherein it has been held that “ 14. The object, purpose and scope of Section 50 of the Act was the subject-matter of discussion in a number of decisions of this court. The Constitution Bench of five Judges of this Court in State of Punjab versus Baldev Singh after exhaustive consideration of the decisions of this court in Ali Mustaffa Abdul Rahman Moosa versus State of Kerala and Pooran Mal versus Director of Inspection (Investigation), have concluded in para 57 ( Baldev Singh Case, SCC PP 208-09) : (I) When search and seizure is to be conducted under the provisions of the Act, it is imperative for him to inform the person concerned of his right of being taken to the nearest gazetted officer or the nearest Magistrate for making search. (II) Failure to inform the accused of such right would cause prejudice to an accused. (III) That a search made by an empowered officer, on prior information, without informing the accused of such a right may not vitiate trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction is solely 5 based on the possession of the illicit article recovered from his person, during such search. (IV) The investigation agency must follow the procedure as envisaged by the statue scrupulously and failure to do so would lead to unfair trial contrary to the concept of justice. (VII) That the question as to whether the safeguards provided in Section 50 of the Act have been duly observed would have to be determined by the court on the basis of the evidence at the trial and without giving an opportunity to the prosecution to establish the compliance of Section 50 of the Act would not be permissible as it would cut short a criminal trial. (VI) That the non compliance of the procedure i.e. informing the accused of the right under sub-section (1) of Section 50 may render the recovery of contraband suspect the conviction and sentence of an accused bad and unsustainable in law. (VII) The illicit article seized from the person of an accused during search conducted without complying with the procedure under Section 50, cannot be relied upon as evidence for proving the unlawful possession of the contraband.” (Emphasis supplied) 11. Undisputedly the mandatory requirement of law has not been complied with in the instant case. Thus, no error is found in the judgment delivered by the trial court. In view of our aforesaid discussion we are not, in detail, going with the other grounds of acquittal. 12. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 6 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra), Judge. December 1, 2010, (Sanjay Karol), Judge. (vs)