IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.42 of 2011. Decided on: May 26, 2011. ____________________________________________________________ Kuldeep Chand. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. N.S. Chandel, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _________________________________________________________ SURINDER SINGH,J (oral) : Appellant hereinafter referred to as ‘the accused’ was tried for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, for keeping in possession 260 grams of Charas, which contained 34.55 % resin of Cannabis plant, thus convicted by the learned trial Court, for the offence punishable under Section 20 (b)A of the Act and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of `1,000/- and in default of payment of fine to further undergo imprisonment for one month, hence Whether reporters of the Local papers are allowed to see the judgment? - 2 - the accused challenged his conviction and sentence by filing the present appeal. 2. In short, the prosecution story as emerges from the record can be stated thus. On 20.9.2009, at about 10.15 a.m., PW-9 SI/SHO Mool Raj was heading a police party. They moved in a Government vehicle for detection of the crime and checking the traffic towards village Sunehar. Their departure was recorded in daily diary Ext.PW1/A. (ii) At about 11.15 a.m., when the police party was busy in traffic checking at National Highway near the tyre repairing shop of the accused, at that time, PW-6 Madan Lal Pradhan and PW-8 Navdeep Singh, Panch of Gram Panchayat Sunehra also came there. They were associated during the ‘Naqa’. In the meantime, the accused came on a Motor- cycle bearing registration No.HP-39-2615, from the side of Nagrota Bagwan. On seeing the police party present there, he tried to return back on the motorcycle, which caused a suspicion to the police. He was chased and over-powered. His identity was asked, to which - 3 - he disclosed. PW-9 aforesaid entertained suspicion that he might be having some narcotic substance in his possession, as such, he asked the accused to exercise his option as of right to get him searched before the Magistrate or a Gazetted Officer and this was reduced into writing Ext.PW1/B. The accused was ready and willing to render himself to be searched by the police and made his endorsement on the aforesaid memo under his signature in presence of the independent witnesses and also PW-1 HC Swaran Rup Singh. (iii) Thereafter, PW-9 SI/SHO Mool Raj rendered himself to search in the presence of the independent witnesses, by the accused but nothing incriminating was found. To this effect, memo Ext.PW1/C was prepared. (iv) Then PW-9 aforesaid conducted the search of the accused in the presence of the independent witnesses and the police officials present there and recovered a polythene packet, having imprint of ‘Panchi Chhap’ over it, found concealed under the T-Shirt beneath - 4 - his left armpit. When it was opened, it contained Charas in the shapes of sticks and balls. (v) To be more sure, a little portion of the recovered stuff was burnt to identify which smelt like Charas and identification memo Ext.PW1/D was prepared in the presence of the witnesses. (vi) Thereafter the recovered stuff was weighed; it came to be 260 grams. The entire recovered stuff was sealed with 12 seals of letter “B” by making one parcel. (vii) Police also prepared NCB forms in triplicate, one of which is Ext.PW9/A. The facsimile of the seal was also affixed on the NCB forms. One of the seal sample is Ext.P4. (viii) Police also took into possession the case- property alongwith Motorcycle and its documents vide seizure memo Ext.PW1/E. (ix) A ruka Ext.PW4/A was prepared and dispatched to Police Station, which culminated into FIR Ext.4/B. - 5 - (x) Police also prepared the site plan Ext.PW9/B of the place of alleged recovery. (xi) Accused was arrested and the grounds of his arrest Ext.PW1/F were informed to him in writing. (xii) Special report Ext.PW3/A was submitted to the Officer superior, within the stipulated time. (xiii) Case property consisting of one parcel of Charas Ext.P1, sample of seal and NCB forms in triplicate and the Motorcycle were deposited with PW-4 MHC Satish Kumar. He made entry to this effect in the Malkhana register, the extract of which is Ext.PW4/C. (xiv) On the same day, i.e. 20.9.2009, the recovered stuff consisting of one parcel of Charas was sent through PW-5 HHC Banwari Lal vide R.C. No.101/21 copy whereof is Ext.PW4/D alongwith sample of seal, NCB forms in triplicate and other documents, which were deposited by him on 22.9.2009 in the Laboratory in the same condition, as 21.9.2009 was a holiday. - 6 - (xv) On the receipt of the report Ext.PA, the recovered stuff was opined to have contained 34.55 % weight-in-weight resin contents of Cannabis Plant. 3. On the receipt of the report Ext.PA and after completion of the investigation, challan was presented in the Court for the trial of the accused. Accused was accordingly charge-sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined PW-6 Madan Lal, and PW-8 Navdeep Singh, Pradhan and Panch of the Gram Panchayat Sunehar respectively as independent witnesses, besides examining the official witnesses. Though both these independent witnesses turned hostile to the prosecution, yet Navdeep Singh supported the case of the prosecution to a great extent, which was found in consonance with the statements of the official witnesses. No specific defence was raised by the accused, his case was denial simplicitor. He also did not adduce any evidence in defence and at the end of trial, learned trial Court believed the prosecution witnesses, the - 7 - accused was accordingly convicted and sentenced as aforesaid. 5. Shri N.S. Chandel, learned counsel for the accused assailed the impugned judgment, on the ground that the compliance of Section 50 of the Act, in the instant case is farce and further that there are material contradictions with respect to the site of the recovery and further that there is no explanation worth the name as to why sample was deposited in the Laboratory after two days of handing it over to the HHC Banwari Lal. He also made his endeavour to point out the contradiction with respect to associating the independent witnesses and submitted that the prosecution could not prove the case beyond reasonable doubt. 6. On the other hand, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. He further argued that though the learned trial Court has come to the conclusion that it was a case of chance recovery and the compliance of Section 50 was not necessary, but even then there is proper compliance of Section 50 of the Act in this case and that the statements of the - 8 - witnesses are consistent and worth inspiring confidence, thus rightly acted upon. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously reappraised the evidence on record. 8. Now taking the point with respect to the compliance of Section 50 of the Act, the statement of PW-9 SI/SHO Mool Raj, Investigating Officer need to be examined. He has supported the prosecution case in its totality. He testified that the accused came riding on his Motorcycle from the side of Nagrota Bagwan and on seeing the police party he tried to run away. He was apprehended, on suspicion of having some narcotic substance, in his possession, as such, an option was given in writing Ext.PW1/B to the accused that he has a right to be searched before the Magistrate or a Gazetted Officer and the accused in his own hand and under his signatures while exercising his right, was ready and willing to render himself and his Motorcycle to be searched by the police party present there in the presence of aforesaid independent witnesses and the then HC Swaran Rup Singh (PW-1). - 9 - 9. PW-8 Navdeep Singh a Panch of the Gram Panchayat Sunehar stated that he was strolling in the Bazaar and this incident also took place in the Sunehar village Bazaar itself and PW-6 Madan Lal, Pradhan was also with him. He alongwith Madan Lal came across police, who had laid a ‘Naqa’ near the tyre repairing shop of the accused. Both of them were associated by the police. He categorically admitted that SI Mool Raj gave an option to the accused that the police entertained suspicion on him of having some narcotic substance in his possession and he has a right to opt for his personal search before the Magistrate or the Gazetted Officer. He also testified that this was reduced into writing vide Ext.PW1/B. He further stated that the accused was ready and willing to render himself to be searched by the police and gave it in writing. PW-6 Madan Lal though admitted his signatures over it, but having been obtained by the police in the Police Station. He also stated that no option was given in his presence and nothing was recovered in his presence. But however, he stands contradicted with his statement recorded by the police under Section 161 of the Code of Criminal Procedure. On the above proved facts, in - 10 - my opinion, when PW-9 SI/SHO Mool Raj entertained suspicion, before conducting the personal search of the accused that he might be having some contraband in his possession, it is that stage the Narcotic Drugs and Psychotropic Substances Act, 1985 would apply and Section 50 thereof will come into play and the Investigating Officer is obliged to comply with the provisions of the said section. Thus, in the above factual scenario, it cannot be to be a case of chance recovery. 10. Sub-section (1) of the said Section provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub- section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain - 11 - the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Subsection (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. 11. The Constitution Bench of the Supreme Court in the recent judgment in VijaySinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609], 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 - 12 - to exercise the right provided to him under the said provision. In the instant case the recovery was effected from his personal search after complying with the legal requirement. 12. For the aforesaid reasons, in my opinion, it is not a case of chance recovery, therefore, Section 50 of the Act is fully attracted, but it stands fully complied with and there is no illegality therein, as such this argument of the learned counsel for the accused on the point is rejected. 13. Further according to PW-9 SI/SHO Mool Raj, a ‘Naqa’ was laid by him in the Sunehra Bazaar on the National Highway, just near the tyre repairing shop of the accused to which PW9 SI Mool Raj as well as the independent witness (PW8) and the official witnesses affirmed in their statements recorded before the learned trial Court, which has not been assailed in the cross-examination at all. PW-9 SI Mool Raj categorically stated having conducted the personal search of the accused and recovered the contraband aforesaid hidden beneath the left armpit in a polythene packet and the recovery of the narcotic was confirmed by PW-8 Navdeep Singh an independent witness. He was cross-examined on this point, but he denied that he - 13 - was deposing falsely with respect to the recovery. This fact has also been testified by PW-1 ASI Swaran Rup Singh and PW-2 Constable Parbhat Singh. They also identified the parcel, which was recovered from the accused during the trial. 14. There is a cogent evidence that the case property consisting of the recovered stuff and the Motorcycle alongwith sample of seal and NCB forms in triplicate was deposited in the Malkhana with PW-4 MHC Satish Kumar and its entry was made in the Malkhana register extract of which is Ext.PW4/C on the same day i.e. on 20.9.2009. Thereafter, the entire recovered stuff was sent through PW-5 HHC Banwari Lal on 20.9.2009 itself for its deposit and examination in FSL Junga. He testified that with effect from 20.9.2009 the case property remained with him intact alongwith police docket till its deposit in the Laboratory on 22.9.2009 as 21.9.2009 was a holiday. On its deposit, he took the receipt on the road certificate and handed it over to the MHC aforesaid on his return. He also proved copy of the road certificate Ext.PW4/D against which he had taken the case property to the Laboratory. - 14 - 15. It is clear from the report of analysis, Ex.PA, when the case property was received in the Laboratory, seals were intact, the said parcel was containing 12 seals of seal impression “B”. The seals tallied with the specimen seal sent by the forwarding authority on the NCB forms and the parcel was kept in the safe custody of the Assistant Examiner, till the report of the same was signed and dispatched. There is also a mention on the report aforesaid that the parcel was weighed in the Laboratory with electronic balance and it was found 262.0 grams. On analysis, the resin contents, to the above extent were found to be of Cannabis plant. 16. In view of the above discussion, in my opinion, recovery stands proved the entire stuff recovered was sent intact to the Laboratory for its examination, the link evidence is complete. Possession stands proved and the accused failed to rebut the presumption under Sections 35 and 54 of the Act against him and the case of the prosecution stands fully proved. The minor contradictions with respect to the preparing of record on the spot while sitting on the Bench or Chair, as stated by some of the official witnesses and hostility - 15 - of PW6 Madan Lal are of no consequence and I also did not find anything to conclude that the situs of the alleged recovery was shifted by the police, which caused material prejudice to the accused. 17. For the reasons aforesaid, in my considered opinion the conviction and sentence passed by the learned trial Court against the accused is legal and proper and is accordingly affirmed. The appeal sans merit and is accordingly dismissed. 18. The matter stands disposed of. Send down the record. May 26, 2011. (Surinder Singh), (Pds) Judge.