IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 470 of 2001. Decided on: 2.5.2011. ___________________________________________________________ State of H.P. … Appellant. Versus Ram Kumar. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G.. For the respondent : Mr. B.B. Vaid, 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 5.6.2001, passed by the learned Sessions Judge, Mandi, H.P., in Session Trial No. 23 of 2000, acquitting the respondent- accused for the alleged offence, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act in respect of alleged recovery of 60 grams of charas on 20.6.2000 at about 7.45 p.m. in the area of Seri Bazar. 2. The prosecution story is that on 20.6.2000 PW-10 Parkash Chand, S.I./SHO, Police Station, Jogindernagar along with PW-3 Balwant Singh Constable and other police officials was on patrol duty in the area of Jogindernagar town 1 Whether reporters of the local papers may be allowed to see the judgment? 2 since 5.30 a.m. At about 7.45 a.m. when the raiding party reached Seri Bazar near hospital when a person came on motor cycle No. WMZ-4515 without helmet. On suspicion the motor cycle was stopped in presence of PW-1 Pyar Chand and PW-2 Shyam Lal. After obtaining his consent whether he wants to be searched by the police officer or by some gazetted officer or Magistrate, search of the accused was conducted and a polythene packet containing charas was recovered from the left hand side pocket of his pant which on weighing was found to be 60 grams. Two samples of 10 grams each were taken from the recovered charas and the remaining charas was sealed with seal ‘T’. The case property was deposited by PW-10 S.I. Parkash Chand with the MHC PW-5 Ram Saran who recorded the FIR and kept the case property in safe custody. The sample was sent through PW-8 Suresh Kumar Constable to the office of C.T.L. Kandaghat and the special report was sent to the Dy.S.P. as per PW-6 Biri Singh Reader. After investigation the accused was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as 10 witnesses, whereas, through his statement under Section 313 Cr.P.C., the accused has denied the prosecution case. 4. PW-1 Pyar Chand an eye witness has stated that he was summoned to Police Station, Jogindernagar at 11.00 3 O’ clock and was told that some charas has been intercepted by them. 5. PW-2 Shyam Lal has stated that while he was going to the hospital at Jogindernagar at about 11.00 O’ Clock, two boys were standing in the verandah and police officials were also present and 30 to 35 other persons were also present there. 6. PW-3 Balwant Singh Constable as a member of the raiding party has stated that accused was intercepted for not having a helmet and was suspected for having charas. He was informed in writing about the search. Thereafter, scale and weights were arranged and charas recovered from the pocket of accused was weighed and sample of 10 grams was taken separately. 7. PW-10 SI/SHO Parkash Chand, Incharge of police party has stated that he intercepted the accused and took his consent whether the accused-respondent wanted to be searched by the police officer or by gazetted officer or Magistrate. The accused-respondent gave his consent in writing that he will give his search to him. On search, a polythene envelope was recovered from the pant of the accused from which charas weighing 60 grams was recovered. Two samples of 10 grams each were taken and sealed with seal ‘T’. The samples were sent for chemical examination. On receipt of the report of the Chemical Examiner, challan was prepared by him. 4 8. PW-4 Himal Chand ASI was not examined in the absence of record. PW-5 Ram Saran was working as MHC who stated that Balwant Singh had brought Ruka and FIR was registered. 9. PW-6 Biri Singh Reader to Dy.S.P., Sarkaghat has stated that special report was handed over to him by Des Raj sood, Dy.S.P. on 21.6.2000. PW-7 Ranjit Singh has stated that vide Fard Ex. PG, personal search articles were returned to the accused. PW-9 Narender Kumar, Investigating Officer has stated that on receipt of Ruka Ex. PE, FIR was written by the Head Constable which was signed by him. 10. We have gone through the contents of the prosecution witnesses and materials on record. Before recovery of alleged charas by way of personal search of accused-respondent, PW-10 Parkash Chand has informed the accused-respondent whether he wanted to be searched by the Gazetted Officer or by the Magistrate. After obtaining the consent, the accused was searched and the recovery of charas was made from his pocket. Such recovery was not in consonance with the mandatory provisions of Section 50 of the NDPS Act and on account of non-compliance of the mandatory provisions of Section 50, the prosecution case is vitiated. Such aspect has also been considered while acquitting the accused-respondent vide the impugned judgment. We also take a note of the observations of the Hon’ble Supreme court in Vijay Singh Chandubha Jadeja 5 versus State of Gujarat, (2011) 1 Supreme Court Cases 609, wherein vide paras 28 and 29 of the judgment it has been held as under:- “28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's case (supra), on the issue before us, as follows: "What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word "right" at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it." However, while gauging whether or not the stated requirements of Section had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of 6 Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words: "The use of the expression "substantial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations." It is manifest from the afore-extracted paragraph that Joseph Fernandez (supra) does not notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra). 29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the 7 same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 11. On the point of non-observance of mandatory requirement of Section 50 (1) of the NDPS Act alone, the prosecution case cannot be allowed as the accused was not apprised of his right of search which was mandatory under Section 50 (1) of the NDPS Act. In our considered view, the prosecution cannot be said to have proved its case beyond reasonable doubt and as such the prosecution has failed to bring home the guilt to the accused. There is no scope for interfering with the impugned judgment of the trial Court. Accordingly, the appeal fails and is dismissed. Bail bonds of the accused-respondent are discharged. (R.B. Misra) Judge. (V.K. Sharma) Judge. May 2, 2011. (cr)