IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.526 of 2004. Decided on: April 8, 2011. ____________________________________________________________ Narender Kumar. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Dinesh K. Sharma, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _________________________________________________________ SURINDER SINGH,J (oral) : The appellant herein was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, and sentenced by the learned trial Court to undergo rigorous imprisonment for a period of one year and to pay a fine of `15,000/- and in default of payment of fine to further undergo imprisonment for six months, hence the present appeal by him. 2. Heard and gone through the evidence on record. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 3. In short the prosecution story can be stated thus. On 2.11.2003, PW7 HC Hari Singh alongwith PW5 C. Ajay Kumar and PW6 C. Narender were on patrolling duty in the area of Manali. When the police party reached near ‘Aleu bridge’, they spotted the appellant coming from Manali side. On seeing the police, appellant tried to escape, this gave cause to the police to suspect him that he might be in possession of some narcotic. He was apprehended and his identity was asked. (ii) PW5 C. Ajay Kumar was sent to call the independent witnesses, but he could not procure any, as such PW7 HC Hari Singh associated the aforesaid constable as the witness. (iii) HC Hari Singh aforesaid gave an option, in writing, vide memo Ex.PW5/A to obtain the consent of the appellant to be searched before the Magistrate, or a Gazetted Officer or any other competent Police Officer. The appellant is stated to have opted to be searched by the police party. He gave his consent on the option memo itself. Thereafter, - 3 - HC Hari Singh rendered himself to the appellant to search, but nothing incriminating was recovered from his possession. To this effect, memo Ex.PW5/B was executed. (iv) Thereafter PW7 HC Hari Singh conducted the personal search of the appellant and recovered 150 grams of Charas from the pocket of his shirt, out of which two samples of 25 grams each were separated and sealed with seal producing the impression of English alphabet ‘H’. The remaining bulk was also sealed with the same seal and the case property was taken in to possession vide seizure memo Ex.PW5/D. (v) HC Hari Singh prepared the site plan Ex.PW7/C of the alleged place of recovery. Appellant was arrested and the grounds of his arrest, in writing, were intimated to him. (vi) A Ruqa Ex.PW7/B was sent for the registration of the case, which culminated into FIR Ex.PW1/A. (vii) The appellant as well as the case property were produced before PW1 Inspector/SHO - 4 - Jagdish Chand. He resealed the case property with his own seal producing the impression of English alphabet ‘B’ and appended its facsimile on the NCB forms prepared by the Investigating Officer on the spot, in triplicate. He also took the sample of said seal separately and deposited the case property with PW2 MHC Khem Chand. (viii) Special report was sent to the officer superior within the stipulated time. (ix) One for the samples of the seized article was sent through PW3 C. Birbal, vide R.C. No.149/03 Ex.PW2/B to deposit it in the CTL, Kandaghat for analysis, which was deposited on 5.11.2003 and the said constable obtained the receipt on the Road Certificate, which was deposited by him with the MHC aforesaid on his return. (x) The sample was analyzed in the Laboratory. The report is Ex.PA on the reverse of the NCB Forms Ex.PW1/D. As per the report, the sample contained 28.76% resin and it also had cystholithic hair present. Beams alkaline test - 5 - was positive and the Chemical Analyst was of the opinion that the exhibit contained the contents of Charas. 4. After recording the statements of the witnesses and completing the challan, it was presented before the Court for the trial of the appellant. He was accordingly charge-sheeted and tried by the learned trial Court and at the end of trial, he was convicted and sentenced as aforesaid. 5. On the reappraisal of the evidence on record, I find that it was a case of personal search, thus, Section 50 of the Act was attracted in the present facts and circumstances of the case, which is held to be mandatory by the apex Court. 6. According to PW7 HC Hari Singh, when the appellant was apprehended, he entertained suspicion of narcotic in his person which necessitated his personal search. Thus, he asked the appellant to exercise his option for his personal search either before a Magistrate or a Gazetted Officer, but appellant chose to be searched by the police party and gave his consent on memo Ex.PW5/A. Significantly, neither in the statement nor in the option memo Ex.PW5/A, said - 6 - Police Officer apprised the appellant of his right to be searched before the Magistrate or a Gazetted Officer. Whether it can be said to be due compliance with the mandate of Section 50 of the Act or not came up for consideration before the Constitution Bench of the Supreme Court in the recent judgment in VijaySinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609]. The Constitution Bench after examining the catena of its earlier judgments held it imperative on the part of the empowered officer to apprise the person intended to be searched of ‘his right’ under Section 50 of the Act to be searched before a Gazetted officer or a Magistrate and observed that 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 his right to exercise the right provided to him under the said provision. It was further held that the mandate of Section 50 is precise and clear viz. if the person - 7 - intended to be searched expressed to the authorized officer his desire to be taken to the nearest Gazetted Officer or the Magistrate, he cannot be searched till the Gazetted Officer or the Magistrate, as the case may be, directs the authorized officer to do so, but the insertion of sub-sections (5) and (6) in Section 50 by amending the Act 9 of 2001, diluted the rigour of strict procedural requirement only in the circumstances mentioned therein and that too being subject to additional protection provided by the said amendment, but definitely, that insertion does not obliterate the mandate of sub-section (1) of Section 50 to inform the suspect of his right to be taken before a Gazetted Officer or a Magistrate. Failure to “inform” the suspect about the existence of his said right would cause prejudice to him. It was held that 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. Thus, it would be - 8 - 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 Magistrate. Failure to comply with the provision in the circumstances aforesaid, entail the acquittal of the accused if the conviction is based upon the personal search of the alleged incriminating article. 7. Applying the aforesaid principle of law laid down by the Constitution Bench of the apex Court, in the instant case, on this very sole ground, the conviction and sentence passed by the learned trial Court is liable to be set-aside for non-compliance of the mandatory provisions of the Act in its right spirit. Accordingly, the appeal is allowed, the conviction and sentence passed by the learned trial Court is set-aside and the appellant stands acquitted by giving him the benefit of doubt. 8. The sentence imposed upon the appellant was suspended vide order dated 10.12.2004 passed by this Court and he is on bail, thus, he is discharged of his bail bonds executed by him at any time during the proceedings of this case. - 9 - 9. The matter stands disposed of. Send down the record. April 8, 2011. (Surinder Singh), (Pds) Judge.