IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 152 of 1999. Decided on: 25.05.2010. ___________________________________________ State of Himachal Pradesh. … Appellant. Versus Kashmiru. …Accused/Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General. For the Respondent : Mr. Anup Chitkara, Advocate. Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 4.12.1998 delivered by the learned Sessions Judge, Chamba in Sessions Case No.19 of 1998 whereby the accused was acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. The prosecution case, in brief, is that on 15th January, 1998, PW-14 Gurdev, Incharge of Police Post Salooni was on traffic checking duty alongwith PW-1, Constable Bhikho Ram, Head Constable Sher Singh, L.H.C. Budhi Singh and Constable Onkar Singh at Sundla Bridge. A bus bearing No.HP-48-0844 came from Sundla side. The bus was got stopped. The bus was being driven by PW-2 Angat Ram and Harnam Singh, PW-13 was conductor of the bus. There were 8-10 passengers in the bus. Accused Kashmiru was sitting on seat No.34. An option was given to her vide consent memo Ex.P-N as to whether she wanted to be searched by the police party or before a gazetted officer or a Magistrate. She opted to be searched by the policy party. Since there was no lady official with the police party, one other lady, Smt. Sarvano was associated by the police party. The search of the accused was conducted and two parcels were found tied to the thighs of the accused and on checking the same, it was found that the said parcels were containing charas. The scales and weights were arranged and on weighment, the charas was found to weigh 2 Kgs. 350 gms. One sample of 20 gms. was drawn. The sample charas as well as the bulk charas were put in two separate parcels and sealed with seal bearing impression “G”. The sample of seal impression was also taken. The accused was informed about the grounds of her arrest vide memo Ex.P-O. Rukka Ex.P-B - 3 - was sent to Police Station, Kihar for registration of a case. In the meantime, S.H.O., Jeet Singh, PW-11 also reached the spot. He resealed the case property with seal “D”. Some other material such as tickets of the bus were also recovered from the accused. Other codal formalities were completed and after investigation of the case, one sample of charas was sent to the C.T.L., Kandaghat. Vide report Ex.P-H, it was opined that the sample was that of charas and the resin content was 32.29%. On the basis of this material, the accused was challaned and charged with having committed the offence aforesaid. The accused pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence, the present appeal. 3. The main ground on which the accused has been acquitted is that the provisions of Section 50 of the Act have been violated. It was also found that the search of the accused had not been properly conducted. According to the Investigating Officer the accused was searched since the suspicion of the Investigation Officer was aroused. The accused got frightened on seeing the police. The Investigating Officer does not state that any other passenger in the bus was searched. However, PW-1, Constable Bhikho Ram stated that other passengers in the bus were also searched and thereafter the accused was searched. PW-2 Angat Ram, who otherwise had supported the prosecution, - 4 - also does not state that any other passenger was searched. In fact, it appears that no other passenger was searched or given any option of search, because had such options been given to other passengers, such options would have also been reduced in writing and placed on record. 4. Still another lacuna in the prosecution is that it is not proved at what stage PW-3 Sarvano Devi was associated with the search. While appearing in the witness box, Sarvano Devi turned hostile and according to her, nothing happened in her presence and she signed the documents at her home at the asking of the police. Even if we discard the statement of Sarvano Devi, since she has been declared hostile, we have to consider the evidence of other witnesses. Admittedly, Sarvano Devi was not travelling in bus No. HP-48-0844. She is said to have been travelling in the other bus. The number of the other bus has not been mentioned. It is also not clear whether this bus was got stopped by the police or it stopped on its own accord. There is no material on record to show whether Sarvano Devi was to get down at that place itself or had to go somewhere else. The prosecution version is totally silent as to who stopped the bus or who requested Sarvano Devi to associate with the search. 5. According to PW-14 Gurdev, when the accused got frightened and opted to be searched by the police party, - 5 - since no lady constable was available, he associated Sarvano Devi, who was standing outside the bus to join the search and thereafter option was given to the accused as to before whom she wanted to be searched. The version of PW-1, Bhikhu Ram is different. He only stated that Madho Ram and Sarvano Devi were present there when the accused was given the option. Both these witnesses are totally silent as to who called Sarvano Devi from outside the bus to associate with the search. Angat Ram, PW-2, driver of the bus gave a different version. According to him the option had been given to the accused before Sarvano Devi was associated. He stated that there was no female passenger travelling in the said bus, therefore, his bus remained standing there for 10 to 20 minutes. He further stated that in the meantime a Chamera Project bus came from Chaura side and one lady alighted from the said bus and took search of the accused on the request of the police. Thereafter the accused was taken behind the bus and searched there. Therefore, there are three different versions with regard to the manner in which Sarvano Devi was associated – (1) that she was already present in the bus when the option was given to the accused; (2) that she was standing outside and was then associated with the search; and (3) that the police stopped the bus coming from Chaura side and then Sarvano Devi was asked to associate with the search. - 6 - 6. Sarvano Devi, as already mentioned above, turned hostile. The conductor of the bus (PW-13) Harnam Singh also did not support the prosecution version. There are material inconsistencies and contradictions in the statements of PW-1, PW-2 and PW-14, and therefore, their statements cannot be relied upon. In a case under the N.D.P.S. Act once the possession is proved in terms of Section 35 of the Act, the burden virtually shifts upon the accused. The principle of mens rea which is applicable in criminal cases, does not operate in a case under the N.D.P.S. Act if it is proved that the contraband had been recovered from the accused. In such an eventuality, it is incumbent upon the prosecution to prove the recovery beyond reasonable doubt. In the present case, even if we discard the testimony of the two independent witnesses, the testimonies of the police officials do not inspire confidence, as there are glaring contradictions in their statements. 7. Even if it is proved that the search was conducted after option was given to the accused in the manner as alleged by the prosecution, there is total violation of Section 50 of the Act since, admittedly, the accused was not informed that she had a right to get her-self searched before the gazetted officer or a Magistrate. In fact, the consent memo Ex.P-N shows that the accused was only given an option as to whether she wanted to be searched before a “G.O.” or a - 7 - Magistrate. The accused is an illiterate person. This is obvious from the fact that she has thumb marked the option memo as well as other documents on record. In such an eventuality, it was the duty of the prosecution to have informed the accused of her right to be searched. The accused would not know what “G.O.” means. It should have been explained to her what the term G.O. means. 8. Section 50 of the Act reads as follows: - “50. Conditions under which search of persons shall be conducted. – (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. - 8 - [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.]” 9. A Constitution Bench of the Apex Court in State of Punjab v. 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. - 9 - 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) 10. A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gurajar, 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. 11. Thereafter, the Apex Court in Man Bahadur v. State of H.P., JT 2008 (10) SC 518 again followed the aforesaid 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 the Magistrate. - 10 - 12. As already observed by us, in the present case the accused was informed that she has a right to be searched before a Magistrate or a G.O. Even if we accept the consent memo to be correct, all that is proved is that the accused was given an option whether she wanted to be searched before a Magistrate or gazetted officer. She was not informed of her right under law. The consent of the accused was not obtained according to law. 13. In view of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. Bail bonds furnished by the accused-respondent stand discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. May 25, 2010. (sck).