IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.144 of 2010. Decided on: August 3, 2011. ____________________________________________________________ Manjeet Kaur. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Ms. Anita Dogra, Advocate. For the respondent : Mr. P.M.Negi, Deputy Advocate General. _________________________________________________________ SURINDER SINGH,J (oral) : Appellant Manjeet Kaur was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, for allegedly keeping in her possession 730 grams of “Charas” in the recovered stuff of 2.700 Kilograms, while travelling in her Car (Indica) bearing registration No.PB-13-R-1880, being driven by co-accused Rajinder Singh and sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of `10,000/- with default clause, hence the present appeal by the convict. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. The prosecution case in nut-shell can be stated thus. On 20th January, 2007, PW9 HC Anand Kishore was heading a Police party consisting of HC Shyam Lal, PW4 HC Chaman Lal and PW7 Lady Constable Suman. They left the Police Station in the Government vehicle being driven by HC Shyam Lal in connection with patrolling duty and to detect the excise cases. When they reached at the place known as “5 Mile” on NH-21, around 3 P.M., PW9 HC Anand Kishore received a secret information that a black Car bearing registration No.PB-13-R-1880 was coming from the side of Pandoh, which was being driven by a male person and a lady sitting besides him were in possession of Charas. PW9 aforesaid included PW1 Rajinder Kumar as an independent witness. He took the above information into writing Ext.PW2/D and sent it to the Dy. Superintendent of Police, Headquarters, for information, through PW4 HC Chaman Lal. In the meantime, the vehicle in question reached there where the ‘Naqa” was put by the police. It was stopped. (ii) PW9 HC Anand Kishore informed Rajinder Singh, driver of the said vehicle and the - 3 - appellant its occupant about the information regarding the “Charas” being carried/ transported by them in the aforesaid vehicle. He gave options in writing Ext.PW1/A to the appellant and Ext.PW1/B to Rajinder Singh, driver. The driver exercised his option to be searched by the Police party whereas, the appellant agreed to be searched by the Lady Constable PW7 LC Suman. To this effect, they also made their endorsement on the aforesaid memos in Punjabi language. On the personal search of Rajinder Singh, nothing was recovered, whereas, PW7 LC Suman conducted the search of the appellant and recovered two packets from beneath the axilla wrapped in a Khakhi (brown) coloured envelope and the third packet was recovered from her backside kept under the shirt. On opening, it contained black coloured material in the shape of sticks, which were wrapped with polythene papers. It emitted the smell of “Charas”. - 4 - (iii) Further as per the case of the prosecution, the contents of these three packets were got mixed up together and on its weightment, it turned out to be 2.700 kilograms. Out of the recovered stuff, two samples of 25 grams each were separated for analysis and sealed with seal impression producing the English letter “K” at three places. The remaining bulk was also sealed in the same Khakhi (brown) envelope separately with the same seal at five places. The sample of seal was taken on a piece of cloth Ext.PW1/C. The sample parcels were marked as P1 and P2 and the remaining bulk as P3. NCB forms, one of which is Ext.PW9/A, in triplicate, were prepared on the spot and the facsimile of seal “K” was also affixed against the relevant columns. (iv) Case property was taken into possession vide memo Ext.PW1/H alongwith the vehicle in question and its documents. (v) Ruqa Ext.PW9/B was sent for the registration of the case through HC Shyam Lal (not examined). The appellant as well as - 5 - Rajinder Singh driver, both were arrested and the grounds of arrest were informed to each of them in writing. Thereafter the appellant was taken to the Police Station and in the meantime, PW8 Rajesh Kumar, the then Inspector/SHO reached the spot to verify the investigation. Later, the case property was produced by PW9 HC Anand Kishore before him for the purpose of resealing alongwith NCB forms and sample of seal used by him. He resealed each of the sample parcels at three places and the bulk at five places with seal impression “R”. The facsimile of the seal was also taken on the NCB forms. The seal impression of “R” was also taken on a piece of cloth separately, which is Ext.PW6/B, duly signed by him. (vi) After completing the above formalities, the case property was deposited with PW6 HC Nand Lal, Incharge, Malkhana alongwith NCB forms, copy of the recovery memo and sample of seals “K” & “R”. Its entry was made in the Malkhana register, the extract whereof is - 6 - Ext.PW6/A. One of the sample parcel was sent for analysis to FSL Junga on 22.1.2007 through PW3 HC Manohar Lal vide RC No.22/2007 Ext.PW6/C, which was deposited on the next day. On its analysis, vide report Ext.PW8/D was found to be the sample of “Charas”. The result of the examination is reproduced as hereunder:- “RESULT OF THE EXAMINATION Various tests were carried out with the exhibit under reference for identification chemical chromatographic test indicated that the sample under reference is of “CHARAS”. It contains resin 27.06 W.W. The results thus obtained is given below:- Exhibit marked as P/1 is a sample of “CHARAS”.” 3. After completion of the investigation, challan was presented in the Court for the trial of the appellant as well as her co-accused Rajinder Kumar. Both the accused persons were accordingly charge-sheeted for the offence aforesaid. They abjured their guilt and claimed to be tried. 4. Against the charge, Rajinder Singh filed a Revision Petition in the High Court and the order of charge-sheeting him under Section 20 of the Act was - 7 - quashed and set-aside and his case was remanded back to the learned trial Court to re-examine the matter whether there is material on record to frame the charge against him under Section 29 of the Act for conspiracy. 5. Learned trial Court in compliance to the said order went through the record and vide order dated 3.7.2008, did not find any material to charge him for the offence aforesaid, as such, he was discharged. Thus, the case only remained against the appellant, as the recovery of the alleged contraband was effected on her personal search, as aforesaid. 6. To prove its case, prosecution examined its witnesses. Appellant was also examined under Section 313 of the Code of Criminal Procedure. She pleaded innocence and took up a specific defence which was not put to any of the witnesses including the Investigating Officer that she was framed in a false case by the police at the behest of one goldsmith Bhola a resident of Sangrur (Punjab) who had settled in village Aut running a Gold-smith shop and he owed `3,00,000/- to her. She visited him and demanded money, but he picked up a quarrel with her and with - 8 - the intervention of one Deepa son of Shri Dile Ram, resident of Aut, the matter was got settled on the assurance that the money to which he owed would be returned to her within a month. On 18th January, 2007, she came to collect the money and stayed for night at village Aut, but in the morning, said Bhola was seen with the Police party headed by PW9 HC Anand Kishore and put pressure on her to give in writing that she has received an amount of `3,00,000/- from Bhola, but when she refused, on the next day, she came to know that she was involved in a false case alongwith her driver. However, no evidence in defence was led. Her defence version was disbelieved. At the end of trial, the appellant was convicted and sentenced as aforesaid. 7. Ms. Anita Dogra, leaned counsel for the appellant vehemently argued that there is non- compliance of Section 50 of the Act and further that there have been material discrepancies in the statements of the prosecution witnesses and also that the report of the analysis does not connect the appellant with the alleged recovered stuff. - 9 - 8. Contra, Shri P.M.Negi, learned Deputy Advocate General for the State supported the impugned judgment of conviction and sentence and further argued that the option was exercised by the appellant knowing fully well the consequence of Section 50 of the Act and there is no discrepancy in the statements of the prosecution witnesses. The link evidence is complete and report of the analysis stands connected with the recovered stuff. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record and I find substance in the submissions made by the learned counsel for the appellant. 10. The evidence on record shows that the vehicle in question was being driven by Rajinder Singh and the appellant was travelling in the said vehicle. It also stands proved that it was stopped at “5 Mile” by the police where they had put a ‘Naqa’. Since PW9 HC Anand Kishore had prior information that the “Charas” was being transported in the vehicle in question by the appellant and her co-accused, therefore, to satisfy the requirement of Section 42 (2) of the Act, he reduced it - 10 - into writing and sent it to Dy.S.P. (HQ). He also stated that he apprised the occupants of the Car about the information aforesaid and gave the option Ext.PW1/A to the appellant in particular, that he had suspicion that she was having contraband in her possession and her personal search was required to be taken and asked the appellant to exercise the option to be searched before a Magistrate or before the Gazetted Officer. She is alleged to have opted to be searched by the lady constable present there. As PW9 HC Anand Kishore stated during his examination in the Court that he obtained the separate consent memos of the appellant and her co-accused under Section 50 of the Act for conducting their personal search in presence of the witnesses PW1 Rajinder Kumar, PW7 Lady Constable Suman and HC Shyam Lal (not examined). Upon giving the consent memo accused persons gave their consent in writing in Punjabi to be searched in the presence of the witnesses. Even neither he nor PW1 Rajinder Kumar stated that the appellant had opted to be searched by the lady Constable. The perusal of the option memo Ext.PW1/B does not show that the appellant was appraised of her right to be - 11 - searched before the Gazetted Officer or the Magistrate. 11. The question that arose before the Constitution Bench of Supreme Court in VijaySinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609], was whether Section 50 of the Act casts a duty on the empowered officer to “inform” the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said Officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of Section 50? Answering the reference aforesaid, the Supreme Court vide para-29 held :- “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- - 12 - 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. 12. The Supreme Court also observed that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 of the Act had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf and the Hon’ble Court vide para-32 of the aforesaid judgment while answering the reference also felt that though Section 50 gives an option to the empowered 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 - 13 - proceedings, it may verily strengthen the prosecution as well and the reference was accordingly answered. 13. Vijay Sinh Chandubha Jadeja’s case supra was relied in the latest judgment by the Supreme Court in another case; Narcotics Control Bureau vs. Sukh Dev Raj Sodhi [ (2011) 6 SCC 392] and their Lordships observed that the requirement of Section 50 of the Act is not complied with by merely informing the accused of his option to be searched either in presence of a Gazetted Officer of before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the Gazetted Officer or the Magistrate and in para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. 14. Applying the aforesaid proposition of law in the instant case, in my considered opinion, the Investigating Officer has failed to comply with the mandatory provisions of Section 50 of the Act as interpreted by the Apex Court and this case is based - 14 - upon the personal search, the accused has to be acquitted for its non-compliance. 15. The above position apart, though I did not find any material discrepancy in the statement of the witnesses, which goes to the root of the case, but the result of the analysis as reproduced hereinabove, whereby the sample so examined by the Chemical Examiner was opined to be “Charas” only on account of the presence of resin 27.06 W.W. (it is not known whether it was in percentage or grams). Further the report also does not show whether the resin is of Cannabis plant. It states that some tests were carried out and identification chemical chromatographic test indicated that it was sample of “Charas” without mentioning the presence of cystholic hair. In other words, the report of the Chemical Analyst suggests the entire sample mass analyzed was not the resin but its some quantity was found in the mass. The above observation of the chemical analysis is different from the definition of “Charas” as given in Section 2 (iii) (a) of the Act, which says as under:- “2(iii)(a)- “Charas”, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis - 15 - plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.” As per the definition aforesaid, resin is not an ingredient of “Charas”, but as per definition in Section 2(iii) (a) of the Act, “Charas” means whole resin in whatever form whether crude or purified, obtained from the cannabis plant. 16. The Chemical Analyst has not mentioned that this resin was of a Cannabis plant. Therefore, the report of the Chemical Analyst falls short of the requisite parameters as per law and could not conclude that the sample so examined was that of “Charas”. On arriving at this conclusion, I put reliance on the judgment passed by the Division Bench of this Court in Sunil vs. State (Cr.A. No.267 of 2007 with other five connected matters) decided on 11th December, 2009. 17. For the reasons aforesaid, in my considered opinion, the conviction and sentence passed by the learned trial Court against the appellant is not legal and proper and is accordingly set-aside. Consequently, the appellant is acquitted of the offences charged against her, by giving her the benefit of doubt. The fine - 16 - amount, if already deposited, be refunded to the appellant. 18. The appellant is also discharged of the bail bonds entered upon by her at any time during the proceedings of the case. Send down the record. August 3, 2011. (Surinder Singh), (Pds) Judge.