1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 253 of 2002 Decided on July 6, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Gurvinder ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr.R.K.Sharma, Senior Addl.Advocate General. For the respondent: Mr. Inder Sharma, Advocate, vice Mr.N.K.Thakur, Advocate. Justice Sanjay Karol,J. (oral) For an offence, which is alleged to have been committed on 29.7.2011, accused was put to trial. In terms of judgment dated 1.1.2002 passed by Sessions Judge, Una, in Case No. 23 of 2001, titled as State of H.P. vs. Gurvinder, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that Vipin Kumar (PW.1) was deputed to investigate a case in relation to an offence which had taken place at Mata Chintpurni fair. On 29.7.2001, at about 3.40P.M., he was there. At about 5.00 P.M. he got a secret information that accused Gurvinder Singh who was proceeding towards Chintpurni, was possessing opium for sale. Vipin Kumar (PW.1) informed SI Rahul Chand Sharma (PW.11) about the same and got his statement (Ex.PB) recorded 2 under Section 154 Cr.P.C. SI Rahul Chand Sharma (PW.11) sent Rukka (Ex.PB) to the police station, Amb through Constable Sunil Kumar (PW.2), where formal FIR No.148/2001 (Ex.PC) was registered. SI Rahul Chand Sharma prepared report (Ex.PO) and sent it through Constable Ranjit Singh (PW.2) to the superior officer i.e. S.P. Una. Thereafter, he constituted a raiding party comprising of independent witnesses Kushal Kishore (PW.4) and one Jagira. Accused was apprehended at Chintpurni. He was informed of the suspicion of his carrying opium. His consent for personal search was taken by the police vide memo (Ex.PE). One coloured polythene wallet was recovered from the right pocket of the pant worn by the accused. The substance looked like opium. When weighed it was found to be of 100 grams. Two samples of 10 grams each were taken and sealed separately with seal impression 'P'. The remaining parcel was also sealed with seal impression 'P'. Seal was handed over to independent witness Jugal Kishore. Codal formalities were completed on the spot. Accused was also arrested after being informed of the grounds of arrest. The seized samples were deposited by the Investigating Officer with Ranjit Singh (PW.9), who resealed the same with his seal 'JP'. The same were handed over to MHC Jasbir Singh (PW.5) along with the NCB form and seal impressions. SI Rahul Chand Sharma (PW.11) prepared special report (Ex.PR) of the case and sent it through HHC Gulzari Lal (PW.7) to S.P. Una. MHC Jasbir Singh sent two 3 parcels of the sample through HHC Ramesh Chand (PW.6) along with NCB forms to the CT Laboratory, Kandaghat and report (Ex.PM) obtained. The seized sample was found to containing opium. With the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed offences punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 11 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. 5. Independent witness Kushal Kishore (PW.4) has not supported the prosecution case. He was extensively cross- examined by the Public Prosecutor. There is nothing in his testimony which would remotely show that he has falsely deposed or has tried to favour the accused. 6. Other independent witness has not been examined in Court. This leaves us with the testimonies of police officials. We find apart from the fact that their testimonies do not inspire confidence for there being major and material contradictions, in the instant case, mandatory requirement of law has also not been complied with by the police. 7. Undisputedly, contraband substance was allegedly recovered from the pant worn by the accused. In the instant 4 case, before effecting recovery, police issued memo (Ex.PE) asking the accused as to whether he would like to be searched in the presence of a Magistrate or a Government Gazetted Officer. Significantly, in this memo there is no mention of the “right” of the accused to get himself searched in the presence of the said officers. This is fatal to the prosecution case as has been held by Apex Court in State of Punjab Versus Baldev Singh, (1996) 6 SCC 172. Further in VijaySinh Chandubha Jadeja Versus State of Gujrat, (2011) 1 SCC 609, has held as under:- “It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” “Failure to “inform” the suspect about the existence of his said right would cause prejudice to him. Failure to comply with Section 50 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. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.” (Emphasis supplied) 5 8. For the aforesaid reasons, we find that the prosecution case cannot be said to have been established / proved, beyond reasonable doubt, by leading clear, cogent, convincing and reliable evidence. 9. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge July 6, 2011 (Sanjay Karol) (Purohit) Judge