IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.272 of 2001. Date of Decision: 4th March, 2011. _______________________________________________________ State of Himachal Pradesh .. Appellant. Versus Raj Kumar .. Respondent. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the appellant : Shri R.K. Sharma, Senior Additional Advocate General. For the respondent : Mr. Ramesh Sharma, Advocate, vice Mr. N.K. Thakur, Advocate. ____________________________________________________ SURINDER SINGH, J. (Oral). Respondent was acquitted by the learned trial Court for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short, ‘the Act’, allegedly for keeping in possession of 88 grams of Charas, hence the present appeal by the State. 2. Precisely, the prosecution case can be summed up thus. On 5th May, 1990 at about 6.00 a.m. PW1 Constable Jaswant Singh had gone towards Andora to collect some information. During this period he came to know that the respondent was indulging in the sale- Whether reporters of the Local papers are allowed to see the judgment? - 2 - purchase of narcotic and if the search is conducted, the contraband in good quantity can be recovered. This information was passed on to PW13 SI/SHO, Kailash Walia. He took down this information in the form of memo Ext.PA. He sent this information under Section 42 of the Act through HC Vijay Kumar to the Officer superior. Thereafter he included PW2 Ashok Kumar and Vijay Kumar (not examined) as independent witnesses in the raiding party and proceeded towards the house of the respondent, but he met them on Athman road walking on foot. He was stopped and was informed that a case had been registered against him as aforesaid, thus in the presence of the witnesses rendered himself to be searched by the respondent but nothing incriminating was found. Thereafter asked the respondent that he entertained some suspicion that he might be carrying some contraband and further asked as to whether he wanted himself to be searched before the Magistrate/Gazetted Officer. He consented to be searched by the police party. To this effect he prepared consent memo Ext.PB. On conducting his search in the presence of the witnesses, police recovered 88 grams of Charas from the right pocket of the shirt of the respondent. Out of the recovered stuff, two samples of 5 grams each were separated and sealed with seal impression ‘X’. The - 3 - remaining bulk was also sealed with the same seal and the seal after its use was handed over to PW2 Ashok Kumar. 3. The case property was taken into possession. Police prepared the site plan. Respondent was also arrested and the grounds of arrest were disclosed vide memo Ext.PD. 4. Special report Ext.PN was sent to Superintendent of Police, through Constable Udham Singh within the stipulated time. 5. The recovered stuff alongwith two samples were produced before PW5 Shri Jaswant Singh, JMIC, Court No.II, Amb with application Ext.PH moved under Section 52A (2) of the Act. It was allowed. JMIC, Amb, broke open the seals on the packets. After weighing and getting its photographs and separated two samples of 5 grams each, thereafter got the same sealed with seal “S.J. cum J.M.I.C., Amb”, drew the proceedings Ext.PG. 6. Thereafter case property which included samples, were handed over by PW13 to MHC Mehar Singh with seal impression Ext.PW12/1. 7. Case property was deposited by PW6 MHC Mehar Singh in the Malkhana after entry made in Malkhana register. 8. On 9th May, 2000 one of the samples was handed over to PW7 Constable Narender Kumar for - 4 - chemical examination. After its deposit in CTL, Kandaghat receipt was obtained and handed over to PW6 MHC Mehar Singh on his return. On examination, the sample was tested positive for Charas in the laboratory. It contained 39.57% weight-in-weight resin of Cannabis Plant. Thus, opined it to be a sample of Charas. The report is Ext.PP. 9. After completing investigation, challan was presented in the Court for the trial of the respondent. 10. The respondent was charge-sheeted, tried and acquitted for the offence aforesaid on the grounds that there were contradictory statements of the witnesses with respect to the search and seizure and further that the link evidence was missing in the case. 11. We have heard the learned Counsel for the parties and have gone through the evidence on record and scrutinized the statements of the witnesses. We do agree with the findings of acquittal recorded by the learned trial Court and additionally find that there has been non-compliance of Section 50 of the Act. 12. PW13 SI Kailash Walia corroborated the prosecution case and pertinently stated that the case property which was recovered on the spot, taken into possession and two samples were taken and the same were sealed with seal ‘X’ and later it was produced before JMIC with the request made under Section 52A (2) of the - 5 - Act. PW4 Shri Jaswant Singh, JMIC was examined in this case. We find that after allowing the application of the Investigating Officer, he did not certify the condition of seals on the packets produced before him nor his order Ext.PG makes reference about comparing the seals of case property with the sample of seal, if any produced. The certificate aforesaid inter alia contains the averments that case property was sealed on the spot as alleged by police, which was weighed, photographed and sample of 5 grams each were separated by him. He did not say as to what had happened to the samples already taken by the police on the spot and whether the case property was produced alongwith NCB forms in triplicate prepared by the police on spot. Pertinently, when examined in the Court as PW4 he stated that after doing needful sample parcels and the remaining bulk were got sealed by him with seal impression “Sub Judge cum JMIC Amb” in a new cotton Pulinda. But the proceedings Ext.PG show that it was sealed with the seal “SJ cum JMIC Amb”, whereas PW6 MHC Mehar Singh stated that when the case property was deposited with him in the Malkhana it was having the seal impression of “JMIC”. He did not utter even a single word whether the sample of seal was also deposited alongwith the case property. - 6 - 13. It is also pertinent to note that the NCB forms were not prepared on the spot by the Investigating Officer, as he did not say anything about it. One of such form is Ext.PP, it appears to have been prepared when the case property was produced before the JMIC aforesaid, as there is a mention of three seal of seal “JMIC Amb” on the sample parcel. Its facsimile was also not taken on NCB form. On perusal of the statement of PW6 we also find that there is no mention that any sample of seal was deposited either by the Investigating Officer or from the office of JMIC and even PW7 Constable Narinder Kumar did not say anything about taking of the sample of seal alongwith the sample of parcel for its deposit in the CTL, Kandaghat. On the top of it, the copy of the Road Certificate against which the case property was moved from the Malkhana to the laboratory has also not been placed and proved on record. In the absence of it, when the sample parcel was received in the laboratory on 9th May, 2000 it is not understood from which sample of seal the Chemical Examiner had compared the seal on the sample parcel. The lithography impression to this effect appears to have been affixed in the mechanical manner. Thus we find that the link evidence is not complete and the report of Analyst could not be connected with the recovered stuff. - 7 - 14. Also, we find that there is non-compliance of Section 50 of the Act as the option given to the respondent is not in consonance with the recent judgment passed by the Apex Court in Vijay Sinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, while answering a reference the Constitution Bench considered various its previous judgments and held in the following paras as under: “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 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.” Also observed as under: - 8 - “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 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's 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.” 15. Thus it is impetrative on the authorized officer under Section 50 (1) of the Act to inform his right to be searched before a gazetted officer or a Magistrate in case of personal search where this provision gets attracted under the Act, failing which the case based upon such a recovery would vitiate. This has to be examined in trial on the facts of each case. 16. In the instant case, against the facts aforesaid, we also do not find from the evidence on record, more particularly the option memo Ext.PB that the respondent was apprised of such a right. 17. For the aforesaid reasons, we do not find any ground to convert the acquittal of the respondent into conviction. The appeal filed by the State is devoid of any merit, hence dismissed. - 9 - 18. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. 19. The matter stands disposed. Send down the records. (R.B. Misra), Judge. March 4, 2011. (Surinder Singh), (rc) Judge.