IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 81 of 1996 Date of Decision : March 17, 2010 State of Himachal Pradesh Appellant Versus Charanjit Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General with Mr. R. M. Bisht, Deputy Advocate General for the appellant. For the respondent : Mr. Ashok Sood, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 15.2.1995 delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 50-S/7 of 1993 acquitting 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 The prosecution case in brief is that on 6.5.1993 S.I. Balak Ram, S.H.O. Police Station, Sadar, Shimla (PW-7) was on patrolling duty near Rivoli Cinema alongwith HC- Virender Kumar (PW-2) and Constable Jagdish Chand. The accused came from the bus stand towards the Rivoli Cinema. On suspicion, the accused was overpowered and then the consent of the accused was obtained for his search. The accused agreed to be searched before the police. In the meantime a telephonic information about the incident from the shop of Sh. Harbans Singh was given to the Dy. S.P. Sh. Brij Lal (PW-6) who reached at the spot within 10 – 15 minutes. Thereafter another consent memo Ext. PW 1/B was prepared. The personal search of the accused was conducted and the search led to the recovery of the contraband in a polythene bag. The substance was weighed and found to be 500 grams. Two samples of 25 grams each were drawn. The two samples and the remaining bulk Charas were sealed with seal-A which was taken into possession vide memo Ext. PW 1/D. The accused was arrested vide memo Ext. PW1/E. Thereafter the codal formalities were completed. The report was sent to the higher officers and Ruka Ext. PW3/A was sent for the registration of the F.I.R. Then the accused and the case property were produced before Inspector Madan Lal (PW-4). One of the samples was sent to the chemical examiner who vide report Ext. PW 7/D opined that the sample is that of Charas. On this basis challan was filed against the accused. 3 The learned trial Court has acquitted the accused mainly on the ground that there is no compliance of Section 42 or Section 50 of the Act. As far as Section 42 of the Act is concerned, that is not at all applicable to the facts of the present case since there is nothing on record to show that this was a case of prior information. Even assuming that it was a case of prior information, recovery was made in a public place and it would be in Section 43 and not Section 42 of the Act which would be applicable. As far as Section 50 of the Act is concerned the three witnesses who have supported the prosecution i.e. HC-Virender Kumar (PW-2), Dy.S.P. Brij Lal (PW-6) and SI-Balak Ram (PW-7) have all stated that the personal search of the accused was carried and on search 500 grams Charas was recovered which was kept in a polythene bag. It has not been clearly stated as to whether this polythene bag was carried in the hand or concealed in the pocket or next to the body of the accused. Once the prosecution witnesses fail to state that this bag was carried by the accused, the Court would have to take a view which is beneficial to the accused. Therefore the provisions of Section 50 of the Act would be attracted. In this case there are two search memos prepared. Ext. PW1/A was originally prepared by SI-Balak Ram (PW-7) and Ext. PW1/B by the Dy.S.P. Brij Lal (PW-6). Admittedly the search was carried out in the presence of the Dy. S.P. Therefore, it is only the second memo Ext. PW1/B which is to be taken into consideration. In this memo the accused was given the option of being searched 4 before a Magistrate or a Gazetted Officer but he was not informed that he had a right to be searched before 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 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. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted 5 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 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. This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if 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 the search is not in conformity with Section 50 of the Act. In view of the law laid down, the accused must be informed about his right also, and since this was admittedly not done, there is violation of Section 50 of the Act. Assuming for the sake of argument that the provisions of Section 50 of the Act are not applicable then also we find that there are many lacunae in the present case. Only one of the independent 6 witnesses was examined. He is Harbans Singh (PW-1) who turned hostile and stated that he had signed all the documents when the police called him in the police station and nothing had happened in his presence. He was declared hostile and cross examined but the cross examination was the most ineffective cross examination. He has only been confronted with his entire statement recorded under Section 161 Cr. P.C. Though he admits his signatures on the various documents he was not asked to give an explanation as to why he signed the same. There is a contradiction in the statements of witnesses PW-2 and PW-7 who were the first witnesses at the spot. SI-Balak Ram (PW-7) only stated that he apprehended the accused on suspicion. According to HC-Virender Kumar (PW-2) the accused on seeing the police tried to run away and therefore this aroused suspicion of the police officials and he was overpowered. The Investigating Officer does not say anything about the accused trying to run away. The other contradiction is that whereas PW-2 states that only he and SI-Balak Ram had given their personal search to the accused and in cross examination specifically states that the Dy. S.P. never gave his search to the accused or the witnesses, PW-6 (Dy.S.P., Brij Lal) states that he gave his search to the witnesses in the presence of the accused and to the similar effect is the statement of PW-7. Inspector Madan (PW-4) who was S.H.O. Sadar, Shimla at the relevant time received the Charas alongwith two samples sealed with seal-A from SI-Balak Ram (PW-7). He only states that the case 7 property was retained by him in safe custody. No register of the Maalkhana was produced. This witness did not reseal the bulk parcel or the samples as required under Section 55 of the Act. In the present case neither the Maalkhana register has been produced nor it has been stated that the witness kept the said Charas in the Maalkhana. Where and in what condition the parcels had been kept has not been explained at all. Constable Vikram Singh (PW-5) states that on 7.5.1993 he carried the sample to Kandaghat laboratory which was entrusted to him by Inspector Madan (PW-4). It is thus obvious that the case property was kept overnight at the police station. There must be some record as to where this case property was kept. Since this record was not produced an adverse inference is to be drawn against the prosecution. Constable Vikram Singh (PW-5) in his statement only states that he carried the sample to the Kandaghat laboratory. He does not make any statement that he carried with him specimen seal impression and road certificate. He has also not produced any document on record to show what were the items he deposited with the Laboratory at Kandaghat. If the specimen seal impression was not sent, how the laboratory at Kandaghat compared the seal with the sample seal impression, as is mentioned in the stamp affixed on the report Ext. PW7/D of the chemical examiner. Therefore the link evidence is also missing in the present case. 8 In view of the above discussions there is no merit in the present appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 17, 2010 (PK)