IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 23 of 2000 Date of Decision : August 05, 2010 State of Himachal Pradesh Appellant Versus Naginder Pal Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Rajesh Mandhotra, Deputy Advocate General for the appellant/State. For the respondent : Mr. Dharam Vir Sharma, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 4.10.1999 passed by the learned Special Judge, Kullu, H.P. in Sessions Trial No. 42 of 1998 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). Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 2. The prosecution story in brief is that Inspector Jagdish Chand (PW-11) at the relevant time was posted as S.H.O. in Police Station, Banjar. On 19.8.1998 he received secret information in the police station through telephone that two persons are coming in a bus from Bathahar side and it is suspected that these persons are carrying charas. PW-11 made entry in the daily diary (Ext. PA) and also sent the information to Superintendent of Police, Kullu vide Ext. PB. Thereafter he constituted a raiding party with other police officials and went to the bus stand at Banjar. Two independent witnesses Sh. Dyal Singh and Sh. Jhabe Ram were also associated during investigation. At about 3.30 p.m. one bus came from Bathahar side. Two persons came out of the bus out of whom one was empty handed. The accused present in the Court disclosed his name as Naginder Pal and the other person was Joginder Pal. He took both these persons to the rain shelter. There he told accused Naginder Pal vide memo (Ext. PW 8/A) that he suspected him of carrying charas and gave him an option whether the accused wanted to be searched before a Magistrate or a Gazetted Officer or police officials. The accused consented to be searched by the police officials. Thereafter the police officials gave their search to the accused. The accused was thereafter searched and on his personal search under his trousers one polythene bag was found tied to his leg. When this bag was opened it was found to be containing charas which on weighment was found to be one kilogram. Two samples of 25 grams each were drawn and were sealed separately and the 3 remaining quantity of charas was also sealed separately. The seal was given to Dyal Singh witness. The accused was informed of the grounds of arrest and then arrested. Ruka was sent for the registration of the case. Site plan was prepared on the spot. After completing other codal formalities on the spot witness returned to the police station where he deposited the case property with the MHC. On the next day one of the samples was sent to C.T.L. Kandaghat and vide report (Ext. PW 11/D) it was found that the sample was of charas and resin content was 33.03%. On this basis the accused was charged with having committed the offence aforesaid and was tried. 3. The independent witnesses did not support the prosecution version at all. They have turned hostile. The official witnesses examined by the prosecution were Inspector Jagdish Chand, Investigating Officer (PW-11) and Constable Dina Nath (PW- 10). The Constable (PW-10) has also supported the prosecution version. 4. Admittedly this is a case where the recovery is a result of the personal search of the accused. The provisions of Section 50 of the Act are therefore applicable. A perusal of the search memo (Ext. PW 8/A) shows that the accused was given a choice as to whether he wanted to get himself searched in the presence of a Magistrate or a Gazetted Officer or by police officials. This has also been stated by the Investigating Officer (PW-11). PW-10 however states that the option given was whether the accused 4 wanted to be searched before the S.H.O. or a Magistrate and does not talk about a Gazetted Officer. Assuming that Ext. PW 8/A is the option given to the accused the question which arises is whether this is sufficient compliance with Section 50 of the Act or not. 5. A Constitution Bench of the Apex Court in State of Punjab versus Baldev Singh, 1999(6) SCC 172, has clearly held that the accused has a right to be made aware of his right to get searched before a Magistrate or a 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 held 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 persons witnessing the arrest and search. It was thereafter held 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 authorised officer acting on prior information is about to search a person, it is imperative for him to 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. 5 (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused.” (emphasis supplied) 6. A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, 2007 (1) SCC 433 noticed the aforementioned dicta 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. 7. Thereafter, the Apex Court in Man Bahadur versus State of H.P. JT 2008 (10) SC 518 again followed the aforesaid 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 the Magistrate. 8. In the present case, the consent memo does not show that the accused was informed that he had a right to be searched before a Magistrate or a Gazetted Officer. No doubt, he was asked as to whether he would be liked to be searched before a Magistrate or a Gazetted Officer or by the Investigating Officer. However, this is totally different from informing him that he has a right to be searched before a Magistrate or Gazetted Officer. The consent of the accused was, therefore, not obtained in accordance with the provisions of the Act. 6 9. Therefore, on this short ground alone we find no merit in the appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. August 5, 2010 (PK)