IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.87 of 2001. Decided on: February 23, 2011. ____________________________________________________________ State of H.P. ……..Appellant. Versus Ramesh Chand. ……..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 : Mr. R.K.Sharma, Sr. Addl.Advocate General with Mr. Rajinder Dogra, Addl.Advocate General. For the respondent : Mr. Pardeep K. Sharma, Advocate, Amicus-Curaie. _________________________________________________________ SURINDER SINGH,J (oral) : The State has challenged the acquittal of the respondent, passed in Sessions Trial No.10-S/7 of 2000, on 26th August, 2000 by the learned trial Court, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, allegedly for keeping in possession 500 grams of Charas. 2. The respondent was represented by Shri T.R. Chandel, Advocate, who has expired. Shri Jagdish Vats, Advocate, whose Power of Attorney is on record Whether reporters of the Local papers are allowed to see the judgment? - 2 - is not present. Keeping in view the old pendency of the case and facts involved, we do not think it proper to adjourn the case. We appoint Shri Pardeep K. Sharma, as ‘Amicus-Curaie’. The paper book has been supplied to him to prepare the case and assist the Court. 3. Heard and gone through the record. 4. In short, the prosecution case as emerges from the prosecution evidence on record can be stated thus. On 21st February, 2000 at about 4.15 P.M., PW10 ASI Madan Lal was heading a police party in Ganj Bazzar, Shimla. He was accompanied by HC Chet Ram, Constables Parma Nand, Jagdish Kumar and Mohinder Singh. When they were passing through the place known as ‘Ghora Astbal’, they spotted the respondent, who on seeing the police party turned back and had tried to escape. Police got suspicious of some contraband with him, as such apprehended him and asked about his identity. Thereafter, the respondent was given option to be searched before the Magistrate or the Gazetted Police Officer into writing Ex.PW1/B. The respondent gave his consent that he was ready and willing to be searched by the police in the presence of two independent witnesses PW1 Dalel - 3 - Singh and PW2 Kishori Lal. Accordingly, the said ASI after rendering himself to be searched by the respondent in the presence of the witnesses took personal search of the respondent in the presence of aforesaid independent witnesses and discovered a polythene packet kept concealed beneath his jacket worn by him. It contained 500 grams of Charas. The recovered stuff was taken to the nearby shop of PW3 Hans Raj for weighing. Thereafter, the police separated two samples of 25 grams each from the recovered stuff, for analysis and each of the samples were sealed with seal producing the impression of English letter ‘A’. The remaining bulk was also sealed with the same seal and after its use, it was handed over to PW2 Kishori Lal. 5. The case property was taken into possession vide memo Ex.PW1/A, which was signed by the aforesaid independent witnesses. 6. Ruqa Ex.PW7/A was sent to the Police Station through PW4 Constable Jagdish Kumar, for the registration of the case, which culminated into FIR Ex.PW7/B alongwith the case property. Case property was resealed by PW7 Addl. SHO Ram Lal with seal impression “W”. It was deposited with PW6 MHC Duni - 4 - Chand. The respondent was arrested and was informed about the grounds of arrest. 7. On 22nd February, 2000, PW6 MHC Duni Chand handed over one of the parcel vide RC No.24/2000 to PW5 Lady Constable Ranjana to deposit it in the CTL Kandaghat. After obtaining its receipt, she handed over it to the MHC aforesaid. 8. The sample parcel was analyzed in the Laboratory. It tested positive for Charas, it contained 26.19% weight-in-weight resin of the Cannabis plant. The report of the Analysis is Ex.PW12/B. 9. After recording the statements of the witnesses and completing the investigation, the challan was presented against the respondent for his trial in the Court. 10. Finding a prima-facie case against the respondent, he was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 11. To prove its case, prosecution examined its witnesses. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were found - 5 - attendant upon him. His case was denial simplicitor. When called upon to enter into his defence, he did not lead any evidence in defence. At the end of trial, he was acquitted on the ground that there was non compliance of Section 50 of the Act and also that the independent witnesses turned hostile and the statements of the official witnesses were contradictory. 12. We have scanned the evidence on record and found that the case against the respondent stands not proved by the prosecution in accordance with law and there has also been infraction of Section 50 of the Act. 13. PW12 ASI Madan Lal stated that before conducting search of the respondent, an option was given to him in terms of Section 50 of the Act. But, we do not find either on the perusal of the said document or on the perusal of testimony of prosecution witnesses that the option so given was in conformity with the said provisions and the latest judgment passed by the Constitution Bench of the Supreme Court in Vijay Sinh Chandubha Jadeja v. State of Gujarat [AIR 2011 SC 77 : 2011 Crl.L.J.680 : (2011) 1 SCC 609]. Since there was a divergence of opinion between various judgments - 6 - rendered by the Apex Court, regarding the question whether before conducting search, the Police Officer concerned is merely required to ask the suspect whether he would like to be produced before the Magistrate or a Gazetted Officer for the purpose of search or is the suspect required to be made aware of the existence of his right in that behalf under the law. The Constitution Bench of the Supreme Court on this reference, scanned its earlier judgments and in Para 22 reproduced below concluded thus: “22.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 - 7 - 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. As observed in Re Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. “The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.” 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 v. State of Goa [2000 Cri.L.J.3485] and Prabha Shankar Dubey v. State of M.P. [AIR 2004 SC 486] 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 State of Punjab v. Baldev Singh case [1999 Cri.L.J.3672]. 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. We also feel that though Section 50 gives an option to the empowered - 8 - officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.” 14. Neither the memo Ex.PW1/B nor PW1 Madan Lal, ASI testified that the respondent was apprised of his right to be searched before the Magistrate or the Gazetted Officer, which is sine-quo-non, to satisfy the requirement of Section 50 of the Act, which is held to be mandatory. Therefore, the non-compliance of such provision would vitiate the trial against the respondent. 15. Not only this, we also find that the report of the analysis Ex.PW12/B is not connected with the alleged recovery. According to PW12 Madan Lal ASI, after sealing process was over, the sample of seal was handed over to PW2 Kishori Lal, but said Kishori Lal has not supported this version on any account. Another witness PW1 Dalel Singh has also turned hostile to the prosecution. They stated having reached the spot - 9 - when the Charas was lying on the ground and the search was already conducted by the police. Further there is absolutely no reference in record nor in statements to show that the sample of seal used was taken separately and that was deposited in the Malkhana alongwith case property. Even the facsimile of the seal used on the spot and also later by Addl. SHO were also not affixed on the NCB forms, which were allegedly prepared on the spot in triplicate. There is also no evidence of depositing the NCB forms in the Malkhana and none of the witnesses of the prosecution testified that the sample of both seals i.e. “A” and “W” were also sent through the Constable to CTL Kandaghat with the police docket. Even the copy of Road Certificate has not been placed and proved on the record to ascertain whether such documents accompanied the sample parcel. 16. Further, we also find that when the case property was handed over in the Laboratory, the certificate with respect to the conditions and comparing of the seal has not been signed by any of the authorities, though there appears unsigned lithographic impression in the left column of the report - 10 - Ex.PW12/B, it is not understood with which seal the Laboratory Analyst had compared the seal, when the sample seals were not sent. 17. Further we also find that the Additional SHO who is alleged to have resealed the case property was also not examined nor there is any certificate to this effect that he had in fact resealed the case property, if at all produced before him, in absence of such evidence, the Court cannot read between the lines. 18. Thus, for the foregoing reasons, we do not find any ground to convert the acquittal of the respondent into conviction. As such, the appeal sans merit, thus dismissed. 19. The respondent is hereby discharged of his bail bonds entered upon by him during the proceedings of the case. 20. We record our appreciation for the assistance rendered by Mr. Pardeep K. Sharma, learned Amicus- Curaie in deciding this appeal. 21. The matter stands disposed of. Send down the record. ( R.B. Misra ) Judge. February 23, 2011. (Surinder Singh), (Pds) Judge.