1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 435 of 1996 Decided on August 18, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Mohinder Singh ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Vikrant Thakur, Legal Aid Counsel. Justice R.B. Misra,J. (Oral) Mr. Vikrant Thakur, learned counsel, from the panel of Legal Aid, has been requested to assist this Court, on behalf of the respondent-accused, he is agreed to assist this Court. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 28.2.1996, passed by Learned Additional Sessions Judge, Solan, District Solan, H.P., in Sessions Trial No.3-S/7 of 1995 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused. 3. The prosecution case is that on 16.9.1994, Arjun Singh (PW.11) who was then posted as ASI at police post Baddi, received a secret telephonic information that one person is roaming about in the industrial area and was indulging in drug 2 trafficking and is coming from Vardhman side towards Baddi. On the receipt of this information, he telephonically informed Chander Shekhar (PW.10) Sub Divisional Police Officer, Nalagarh and he made Rapat No. 17 in the daily diary. PW.10 further instructed him to reach the spot alongwith weights and measures. Accordingly, the raiding party was constituted in which PW.1 Chet Ram and Piara Singh were associated and he rushed to the spot alongwith other police people and the accused was apprehended near Billan Bali. After some time, PW.10 also reached at the spot who expressed his intention to carry out the search of the accused who was asked whether he would like to be searched by him or by some other gazetted officer or Magistrate. The accused gave consent to be searched by the police. Accordingly, consent memo Ex.PA was prepared. Upon search having been carried out, one polythene bag was recovered from inside the pant of the accused containing opium in it and on weightment it was found to be 200 grams, out of which 2 samples of 10 grams each were separately taken and both the samples and opium were then separately sealed in separate parcel with seal impression 'A'. The accused was informed about the ground of his arrest and was formally arrested. The sample was sent to C.T.L. Kandaghat and on analysis it was found to be opium. Thus the case under Section 18 of the 'NDPS Act' having been found against the accused. 4. After investigation, respondent-accused charged for the offence under Section 18 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 11 3 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence. 5. On behalf of the prosecution, PW.1 Chet Ram, Pradhan of Gram Panchayat, Gullerwala, PW.2 Head Constable Prem Lal, N o. 646, PW.3 Constable Karnail Singh, No. 196, PW.4 LHC Om Prakash, PW.5 Ajeet Ram, PW.6 Head Constable Vijay Kumar No. 42, PW.7 ASI Sri Ram, PW.8 ASI Dhanbir Singh, PW.9 S.I. Sardari Lal, PW.10 Chander Shekhar, Dy. S.P. and PW.11 ASI Arjun Singh, were examined. 6. Out of all the prosecution witnesses, two independent witness, namely, Chet Ram (PW.1) and Piara Singh were associated and during the personal search of the accused, PW.1 Chet Ram has supported the prosecution case and other independent witness (Piara Singh) was not examined by the prosecution. Before making the search, the accused was asked that whether he is willing to be searched by a Magistrate or Gazetted Officer or by the team present there, on his agreeing, search was made. 7. On scrutiny of the prosecution witnesses and material on record, we notice that before making the search, respondent was not apprised that he has a right to be searched, as such, according to the respondent-accused mandatory requirement of Section 50 of 'NDPS Act is not complied with. For convenience Section 50 of the 'NDPS Act' reads as below:- “50. Conditions under which search of persons shall be conducted- (1) When any officer, duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person 4 so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-Section (1). (3)The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.” 8. In making the personal search, it is mandatory requirement on the part of the police officers, that the accused is to be informed that he has the option to be searched by the police officer or a Gazetted Officer and he has also to be apprised that he has a right to be searched and if such option is not given, then mandatory requirement of Section 50 of the 'NDPS Act' is not complete, which makes the prosecution case fatal. 9. Learned Additional Sessions Judge has referred and relied upon the decision of Supreme Court in State of Punjab Versus Balbir Singh, 1994 (2) Chandigarh Law Reporter Page-265. 10. In view of the testimony of PW.10 Chander Shekhar, Dy. S.P., in whose presence search was made, did not indicate that such option, as indicated above, was given to the accused. Keeping in view the non compliance of mandatory requirement and keeping in view that only one independent witness has supported the prosecution case, learned Additional Sessions Judge has arrived at a conclusion that the prosecution has failed 5 to prove its case beyond all reasonable doubt. 11. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Additional Sessions Judge has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 12. Fee of Rs. 2000/- for entire case shall be paid to Mr.Vikrant Thakur, Legal Aid Counsel, payable from Legal Aid Fund of H.P. High Court. 13. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge August 18, 2010 (V.K. Sharma) (Purohit) Judge