IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 318 of 2003 Date of Decision: 16.11.2011. State of H.P. …Appellant. Versus. Sarabjeet Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the Respondent: Mr. Chaman Negi vice Mr. Anoop Chitkara, Advocate. Per Deepak Gupta, J.(Oral) 1. This appeal by the State is directed against the judgement dated 23rd April, 2003 passed by the learned Sessions Judge, Chamba whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution story in brief is that PW-10 Kulwant Singh alongwith other police officials including PW-9 ASI Saroop had laid a Naka at Hardaspur Chowk in Chamba town and at about 1 a.m in the night they saw 2 a person coming from the side of Julakari Mohalla. The police officials saw that this person had hidden something inside his jacket. The said person tried to run away on seeing the police officials. This aroused the suspicion of the police officials and they apprehended the person who on inquiry disclosed his name as Sarabjeet Singh S/o Gurbax Singh. Thereafter his personal search was conducted and on his personal search, inside the jacket, a polythene bag was recovered on which the words ‘M/s Sham Lal and sons, Dogra Bazar Chamba’ were written. Inside this bag charas was found. This charas was weighed and after taking samples, separate parcels were made and other codal formalities were completed. 3. We are not giving the other details of the case because the main reason why the accused has been acquitted is that the provisions of Section 50 of the Act was not complied with. Admittedly, this is a case of recovery of contraband on the personal search of the accused and Section 50 is applicable in such circumstances. The only explanation given by the prosecution is that this was a chance recovery and the police officials were not aware that the accused was carrying charas and as such Section 50 is not applicable. 3 4. In our view the contention of the State cannot be accepted. It is true that in some cases of chance recovery where contraband is recovered on personal search Section 50 may not be attracted but this has to be decided on the facts and circumstances of each case. In case checking is being done for some other purposes and during the course of such checking contraband is recovered Section 50 may not be attracted. For example, if at the airport while frisking is being done and at the time some contraband is recovered Section 50 may not be attracted. Similarly, when a person enters a place where metal detectors, etc. are located and checking is conducted for security purposes this can be said to be a case of chance recovery. However, here we are dealing with a case where even as per the police officials they saw a person coming at about mid night and on seeing the police officials he tried to run away. According to the police officials there was something hidden in his jacket. Therefore, even if they were not suspecting that there was charas inside the jacket they were checking the accused to see whether he was carrying contraband or not. In such circumstances, the prosecution cannot say that Section 50 is not attracted. 4 5. Even if we accept the argument of the prosecution that Section 50 was not attracted at the first stage, PW-9 Saroop Kumar, who was member of the police party has in his statement clearly stated that ever since the accused was arrested PW-10 Kulwant Singh SHO entertained a doubt that the accused was possessing charas and thereafter Manohar Lal was deputed to collect the weights and scale. According to PW-10 Kulwant Singh, SHO, after he recovered the plastic bag even before he had opened the same he sent a constable Manohar Lal to get the weights and scale and also to arrange for witnesses. Therefore, at this stage at least he was suspecting that the accused was carrying some contraband and he should have apprised the accused of his right to be searched by a Gazetted Officer or a Magistrate. 6. The Constitution Bench of Apex Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 dealt with the question as to how the provisions of Section 50 have to be complied with. The Apex Court held that Section 50 is mandatory and casts a duty upon the Investigating officer to inform the accused that he had a legal right to insist that he be searched either by a Gazetted Officer or a Magistrate. 5 The Apex Court interpreted Section 50 in the following manner:- “19. Sub-Section(1) of Section 50 provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section(2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Sub-Section (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. 20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorized officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorized officer to do so.” 7. Thereafter the Apex Court after considering the other judgments has held as follows:- “31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read 6 into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section(1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. 8. In this case no consent at all was obtained from the accused. In view of the above discussion, we are of the considered view that the learned trail Court was fully justified in acquitting the accused. Therefore, we find no merit in the appeal, which is accordingly dismissed. Bail bonds discharged. ( Deepak Gupta ) Judge. 16th November, 2011 ( V.K.Ahuja ) ™ Judge.