IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 180 of 1996 Date of Decision : February 24, 2010 State of H.P. …Appellant. Versus: Jagdish Kalet …Respondent-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondent : Mr. Sandeep Chauhan, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 19.12.1994 passed by the learned Sessions Judge, Shimla, H. P., whereby the accused has been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘Act’). Briefly stated the prosecution version is that on 17.9.1993 at about 8.30 p.m., PW-7 SI/SHO Balak Ram 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 alongwith three other constables was on patrolling duty near Bus Stand, Shimla and when the police party reached near Ram Mandir, the accused was coming down from the Lower Bazar towards the Bus Stand. On seeing the police, he became perplexed and tried to turn back. This gave rise to a suspicion in the mind of the PW-7 who apprehended the accused. Two independent witnesses i.e. PW-5 Mohinder Singh and one Shri Manjit Singh were associated with the investigation in their presence. The consent of the accused was taken for search vide consent memo Ext.PW-5/A. In the meantime, PW-6 Additional Superintendent of Police reached the spot and the search of the accused was carried out under his supervision and in his presence. 1 kilogram 50 grams Charas was recovered from an envelope being carried by the accused. Out of this Charas two samples of 25 gms. each were taken. The bulk Charas and the two samples were separately sealed vide Seal ‘D’. One sample was sent to C.T.L., Kandaghat and was stated to be a sample of Charas with resin content of 35.20%. After completion of other codal formalities, the investigation was completed and challan filed in Court. The accused was charged with having committed an offence punishable under Section 20 of the NDPS Act. He has been acquitted and hence the present appeal. We have heard Mr. Vivek Thakur, learned Addl. Advocate General on behalf of the State of Himachal Pradesh 3 and Mr. Sandeep Chauhan, learned counsel appearing on behalf of the accused. At the outset we may state that this is a case of personal search and the provisions of Section 50 of the Act are applicable. A perusal of the search memo Ext.PW-5/A shows that the Additional SHO (PW-7) who was heading the patrolling party asked the accused whether he was willing to give his personal search to him (Additional SHO), SI (Balak Ram), or some Magistrate or other Gazetted Officer. The law is clear that the accused must not only be given the option of being searched by such officers but also must be told and informed that he has a right to get himself searched in the presence of a Magistrate or a Gazetted Officer. 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 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: 4 “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 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. (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) 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. 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. In the present case, the consent memo does not show that the accused was informed that he had a right to be 5 searched before a Magistrate or a Gazetted Officer. No doubt, he was asked as to whether he would be liked to be searched through 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 examined before a Magistrate or Gazetted Officer. The consent of the accused was, therefore, not obtained in accordance with the provisions of the Act. Since the accused was not informed that he had a right to get himself searched before a Magistrate or a Gazetted Officer, the search was not conducted in accordance with law. The personal search being illegal and not in conformity with Section 50, the accused cannot be convicted on the basis of any alleged contraband purported to be recovered in consonance of such an illegal search. In addition to this, another very important factor is that how and in what manner the search was conducted is itself very doubtful. Rukka Ext.PW-4/B (also marked as Ext.PW-7/A) was sent by the Additional SHO, P.S. Sadar, Shimla i.e. PW-7 to the Police Station. On the basis of which FIR No. 368/93 was registered at P.S. Sadar, Shimla on 17.9.1993. This Rukka is purported to be sent at 9.15 p.m. on 17.9.1993. A bare reading of the Rukka shows that this Rukka was sent after the search had already been done and the samples taken and sealed. In fact the entire investigation which is required to be done on the 6 spot had been completed when this Rukka was sent. In this Rukka it is mentioned that the Addl. SP PW-6 reached the spot along with Constable Narinder Mohan. However, the Addl. S.P. while appearing in the witness box as PW-6 stated that he received information through writing Ext.PW-6/A and thereafter went to the spot. At the spot he found two independent witnesses Mohinder Singh and Manjit Singh. The consent had already been taken from the accused and in his presence the search was conducted. He further states as follows: “I came to know at the spot that one Constable had already been sent with a Rukka to register the F.I.R.” The statement of PW-6 is totally contrary to the contents of the Rukka which have already been detailed above. This creates a doubt as to whether PW-6 was actually present when the search took place. The only independent witness who has been examined has not supported the prosecution case. The other independent witness to the search operation was not examined. The case of the police is that the scales for weighing Charas were arranged from Shri Vivek Sharma, a Grocer at Bus Stand, Cart Road, Shimla. The search was conducted above the Ram Mandir. There is no explanation as to why the scales were not arranged from the large number of Shopkeepers in that area, since the area in question has a large number of shops. 7 Another factor which casts a doubt on the prosecution version is that PW-7 Balak Ram has admitted that in the daily diary register (Roznamcha), the entry about his leaving the Police Station was made after he returned back. PW-2 Baldev Singh has admitted that in the daily diary register (Roznamcha), the entries Ext.PW-2/A, Ext.PW-2/B & Ext.PW-2/C relating to the departure of the police party from the Police Station and about the return of the police party after search was made together. This clearly shows that the daily diary register was not properly maintained because at the time of departure itself, entry has to be made with regard to the fact that the police party under the leadership of the Addl. SHO had left the police Station for patrolling duty. Otherwise any entry can be made at a later stage. Another important factor is that according to PW-6, he received information about the offence vide document Ext.PW-6/A which was sent to him by the Addl. SHO through a Constable. Surprisingly, there is no endorsement on this document as to the time when it was received, who brought it and when it reached the Police Station. Though there is a stamp of the police, P.S. Sadar, neither any entry number is given, nor there is any mention of the time and date, when it was received. Therefore, the document could have been manufactured at any stage. 8 Another factor is that when the bulk charas and the two samples were deposited with the PW-1, he did not put his seal on the said samples which he was required to do under the provisions of Section 55 of the Act. Though the provisions of Section 55 of the Act may not be mandatory as held by the Apex Court, this is a salutary provision and there must be some explanation as to why the SHO or person in-charge of the Malkhana did not put his own seal on the parcels. No such explanation has been given in the present case. Even the NCB form does not bear the impression of the seal. All these factors cast a doubt on the prosecution story. For the foregoing reasons, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. February 24, 2010. (rana)