IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 108 of 1995. Date of decision: 18.3.2009 State of H.P ..Appellant Versus Raju @ Gujrati Baba. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? No. For the appellant: Mr.Rajesh Mandhotra, Dy.Advocate General. For the respondent: Mr.Dinesh Sharma, and Mr.Y.Paul, Advocates. _____________________________________________________ Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgement of the learned Additional Sessions Judge, Kullu in Sessions Trial No. 13 of 1993, decided on 26.7.1993 whereby he has 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’). 2 Briefly stated the prosecution case is that on 25.10.1992 a police party headed by PW/4 ASI Jindu Ram was on patrolling duty. PW/1 Tej Ram, Chowkidar had also joined the police party. When this party reached Bara Pathar Sanona, near Manikaran, the accused was coming from the opposite side. On seeing the police party, he tried to run away. This aroused the suspicion of the police officials who apprehended the accused. The identity of the accused was asked for and thereafter, according to the prosecution, the accused was asked to exercise his option whether he wanted to get himself searched before the police officials or before a Gazetted Officer. Accused readily consented to get himself searched before the police officials. On personal search of the accused, 300 grams of charas was recovered. Thereafter, two samples of 25 grams each were drawn and sealed with seal impression ‘T’. The bulk charas was also sealed. Thereafter, formalities were completed and one of the samples was sent for analysis to the analyst. The sample was opined to be that of charas and thereafter the challan was filed in Court. Accused pleaded not guilty and claimed trial. The Trial Court acquitted the accused on the ground that provisions of 3 Section 50 of the Act had not been complied with. Hence the present appeal. It would be pertinent to mention here that in the present case, there is no memo on record whereby the accused has been given an option in writing to be searched. The only document reflecting this is Ex.PA which is the seizure memo in which it is also mentioned that the accused was searched with his consent. There is nothing in this memo to indicate that the accused was told that he had a right to get himself searched before an Executive Magistrate or Gazetted Officer. PW1 Tej Ram who is an independent witness only states that the police officials asked the accused as to from whom he wanted to get himself searched. PW/3 constable Suresh Kumar who was a member of the police party states that the ASI asked the accused whether the accused was ready to get himself searched from ASI or from some superior officer. PW/4 ASI Jindu Ram also states that he asked the accused as to whether he wanted to get himself searched by him or before some superior 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 4 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: “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. (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 5 (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, Apex Court in Man Bahadur versus State of H.P. JT 2008 (10) SC 518 again followed the aforesaid judgements 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, from the material on record, it is obvious that there was no compliance of Section 50(1) of the Act. The accused was never told that he had a right to be searched before a Gazetted Officer or a Magistrate. Even if the statements of the police officials are accepted, there is no compliance with the provisions of Section 50(1). The accused was not even given the option of being searched before a Magistrate or a Gazetted Officer. The consent of the accused, if any, was, therefore, not obtained in accordance with the provisions of the Act. 6 In view of the above discussion, the search being totally illegal, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished are ordered to be discharged. ( Deepak Gupta ) Judge 18th March, 2009 (V.K.Ahuja) (m) Judge