HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 313 of 1997 Decided on: 27.8.2010 State of Himachal Pradesh ……… Appellant. Versus Pawan Kumar ………Respondent. Coram: The Hon’ble Mr.Justice R.B. Misra, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the Appellant: Mr.Rajinder Dogra, Additional Advocate General, & Mr.Anil Jaswal, Deputy Advocate General. For the respondent: Mr.Himat Negi, Amicus Curie. R.B. Misra, J.(Oral): The present criminal appeal has arisen consequent upon granting leave to appeal under Section 378(3) of the Code of Criminal Procedure, in reference to the judgment dated 15.6.1992, passed by learned Sessions Judge, Una in S.Tr.No.1/1992, vide which the accused has been acquitted of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ‘the NDPS Act’). 2. The prosecution case is that on 20.8.1991, at about 7.00 or 7.15 p.m., when accused Pawan Kumar was sitting on a bench in front of the shops of Krishan Kumar outside the ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? - 2 - Bus Stand, Una, police party comprising of Inspector Sita Ram, Dy.S.P. Partap Singh, ASI Om Parkash, ASI Gian Chand, H.C.Ramesh Chand and one lady Constable, alongwith two independent witnesses Sukhdev Singh and Krishan Kumar reached there. On suspicion, the police party made inquiries from the accused/respondent and asked him that he is to be searched and also took his consent as to whether he wanted to be searched by the police officials or by a Magistrate or by a Gazetted Officer. On the consent of the accused, his personal search was conducted and a plastic bag was found from his possession in which opium of 1 kg. was found. Two samples of 10 grams each were taken and were also sealed in different packets and the remaining opium was kept in the bulk. The seal was handed over to Sukhdev Singh and after investigation, the accused/respondent was charged for the offence under Section 18 of the ‘NDPS Act’ and the case was committed to the Sessions Court. 3. In order to prove its case, the prosecution examined as many as 8 witnesses, whereas the accused/respondent, in his statement under Section 313 of the Cr.P.C., denied the prosecution case. 4. PW-1 Sukhdev Singh and PW-2 Krishan Kumar are stated to be the independent witnesses. However, they have only admitted to the extent that the accused was sitting on a Bench in front of the shop of Krishan Kumar, but they have also stated that the accused was taken to the police station in a Van where their signatures were obtained on some papers by the police. PW-1 Sukhdev Singh and PW-2 Krishan Kumar have consistently, separately and coherently denied the time - 3 - of raid and the assertions of the prosecution that the accused was holding a Parna or that on search of the Parna, the incriminating material was found in the possession of the accused/respondent. In cross examination, both PW-1 and PW-2 have admitted that so many persons were sitting in the shop as well as on the bench in question in front of the shop of Krishan Kumar and that all of them ran away on seeing the police party, whereas the accused remained sitting on the bench in question to take tea. Such narration clearly shows that none of the independent witnesses have neither seen the incident nor have supported the prosecution case if the parna in question, much less the incriminating material, was recovered in their presence. 5. PW-3 Dy.S.P. Partap Singh, while supporting the prosecution case, has stated that when he was going towards new bus stand, Una, he found the police party standing there in connection with detection of illicit sale of liquor, as such, he joined the police party. He further stated that on reaching the shop of Krishan Kumar, he observed accused sitting on the Bench with a Parna in front of the shop of Krishan Kumar and the Inspector Sita Ram asked the accused/respondent as to whether he was agreeing for search and thereafter on search, out of the Parna kept by the accused, incriminating material wrapped in a plastic bag was recovered which was weighed, after making procedural formalities. The samples were packed and sealed with seal ‘A’ and taken into possession vide recovery memo Ext.PJ. In cross examination, PW-3 has stated that the police party neither entered the shop of Krishan Kumar nor checked any - 4 - customer and that the police party straightway went to the accused and conducted the search of his Parna. PW-3 has further stated that he did not supervise the proceedings but signed the recovery memo only as a witness. According to him, the entire proceedings were conducted in 20-25 minutes. Thereafter, he alongwith the police party went to the police station and then came back. From the testimony of PW-3, it appears that he was not initially heading the police raiding party and has only indicated that on search of Parna, the incriminating material was recovered and the entire proceedings took only 20-25 minutes. Such time also appears to be improbable because in any proceedings of opium raid, certainly more time would have been taken. 6. PW-4 ASI Gian Chand, in his endevour to support the prosecution case, has stated that number of persons were sitting in the shop of Krishan Kumar and were taking tea. He further stated that first of all the shop of Krishan Kumar and then persons sitting in the shop were searched before searching the Parna of the accused. PW-4 has further stated that Inspector had apprised the accused of his right of being searched and the police party has stayed at the bus stand for about 5 minutes before going to the shop of Krishan Kumar. PW-4 has also stated that 3-4 shops, before going to the shop of Krishan Kumar, were also searched. However, the testimony of PW-4 is in contradiction to the testimony of PW-3 Dy.S.P. Partap Singh, who has stated that no search of any person or shop, other than the accused, was conducted. Thus, PW-4 has given a different version and has stated that 3-4 other shops and the other persons sitting in - 5 - the shop of Krishan Kumar were also searched, before searching the accused and it took only five minutes at the Bus Stand. Such apparent contradictions also create a serious doubt in the prosecution case. 7. PW-5 Ramesh Chand, PW-6 Teja Singh, PW-7 Sita Ram, Inspector and PW-8 Balwan Singh, SHO, Police Station, Una, in their endevour have supported the prosecution case to the extent the role assigned to them. The police raiding party has simply taken the consent of the accused/respondent regarding whether he is willing to be searched by the police party itself or by a Gazetted Officer or a Magistrate. On his agreeing, the personal search was made. Such endevour was not the compliance of mandatory requirement of Section 50 of the ‘NDPS Act’. As per the settled law, the accused/respondent was to be apprised that he has a right to be searched and mere obtaining his consent before personal search was not fulfilling the mandatory requirement of Section 50 of the ‘NDPS Act’. On this aspect, the prosecution case is vitiated. 8. This Court, vide judgment, dated 18.6.2010, in Criminal Appeal No.181 of 1997, (State of H.P. versus Vikas Sharma), has considered the various decisions of the Supreme Court and has observed as under: “11. A Constitution Bench of the Apex Court in State of Punjab Versus Baldev Singh, 1999(6) SCC 172, has observed that the accused as 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 has observed 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 - 6 - persons witnessing the arrest and search. It was further observed 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 authorized officer acting on prior information is about to search a person, it is imperative for him 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 search before a Gazetted Officer or Magistrate would cause prejudice to an accused (emphasis supplied) A three Judge Bench of the Supreme Court in Vijaysinh Chandubha Jadeja V State of Gujarat 2007 (1) SCC 433, has noticed the aforementioned verdict 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. Thereafter, Apex Court in Man Bahadur Versus State of HP, JT 2008 (10) SCC 518 again followed the above 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 Magistrate.” 12. Following the above decision, the Division Bench of the High Court of Himachal Pradesh in State of HP Vs. Fateh Singh Latest HLJ 2009 (HP) 684 has also taken the similar above view.” 9. In view of the above non-compliance of the statutory requirement of Section 50 of the ‘NDPS Act’ and keeping in view the contradictions, discrepancies, inconsistencies and improbabilities indicated above and besides this, the contradictions noted by the learned Sessions Judge in the impugned judgment dated, 15.6.1992, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. We are also of the considered view - 7 - that the prosecution has failed to bring home the guilt of the accused. The appeal, as such, being devoid of any merits is dismissed. 10. Before parting with the judgment, we appreciate the assistance rendered by Mr.Himat Negi, Advocate, as amicus curie. (R.B. Misra), Judge. August 27, 2010. (V.K. Ahuja), (TILAK) Judge