IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.424 of 1996. Date of decision: 27.4.2010 State of H.P ..Appellant Versus Om Parkash. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Rajiv Sharma, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Additional Advocate General. For the respondent: Mr.Naveen Kumar Bhardwaj, Advocate. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement dated 8.11.1995 delivered by the learned Sessions Judge, Solan in Sessions Trial No.9-S/7 of 1994, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic 2 Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). The prosecution story, in brief, is that on 12.11.1993 PW/8 Mohinder Pratap alongwith Head Constable Jeet Singh was on patrolling duty near Saproon bye pass. He received secret information that a boy wearing a particular set of clothes was carrying Charas with him near Dohri Diwal. He searched for the boy and found the accused who revealed his full name and address. Two independent witnesses namely Ram Pratap, PW/1 and Nanku Ram, PW/2 were associated with the search. The accused was given the option of being searched either before the police officials or before a Gazetted Officer vide memo Ext.PB. The accused opted to be searched before a Gazetted Officer. Thereafter, PW/8 telephonically informed Sh.Daljit Thakur, Dy.S.P (PW/4) who came to the spot and in the presence of this witness, personal search of the accused was conducted. During this search, a polythene bag was recovered from inside the sweater of the accused. On search of this polythene bag, charas was found. PW/8 arranged for 3 the weighing machine which was brought by Sh.Biru Ahmad, Head Constable. The said charas was weighed and was found to weigh 130 grams. Two samples of 5 grams each were drawn. The bulk charas and two samples were sealed in separate parcels and sealed with seal impression ‘E’. The entire charas was taken into possession vide seizure memo Ext.PC. The accused was apprised of the grounds of the arrest. Other codal formalities were completed at the spot. Thereafter, Ruka, Ext.PF was prepared and sent to police Station, Solan for the registration of the F.I.R and special report Ext.PJ was also sent to the Superintendent of Police, Solan. One sample of charas was sent to the Chemical Examiner, C.T.L, Kandaghat for examination and it was opined vide report Ext.PE that the sample is of charas. On this basis, challan was filed against the accused and the accused was charged with having committed an offence punishable under Section 20 of the Act. The accused pleaded not guilty and claimed trial. After trial, the accused was acquitted. Hence the present appeal. 4 The learned Trial Court acquitted the accused mainly on the ground that the provisions of Section 50 of the Act had not been complied with. In this case, even according to the prosecution, the contraband was recovered from below the sweater of the accused on his personal search. This is, therefore, a case of personal search and the provisions of Section 50 of the Act are attracted. Section 50 of the Act reads as under:- “50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as 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. 5 (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]” 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 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 6 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 (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 7 his right to be searched before a gazetted officer or a Magistrate. In the present case, the provisions of Section 50 of the Act have not been complied with in letter and spirit in two aspects. Firstly, the accused was not given the option of being searched before a Magistrate. Secondly, he was not informed that he had a right to get himself searched before a Gazetted Officer or before a Magistrate. As held by the Apex Court in the judgments cited here-in-above, it is not sufficient to just give the option to the accused but he must be informed that he has a legal statutory right of being searched before an officer of his choice as envisaged under Section 50 of the NDPS Act. In this case, the accused was neither apprised of his right nor given the option to be searched before a Magistrate. Therefore, the provisions of Section 50 have not been complied with. In this case, even the link evidence is totally missing. PW/8 in his statement is totally silent as to what he did with the bulk charas and the samples after sealing the same. 8 In view of the fact that the provisions of Section 50 of the Act have not been complied with, the learned Trial Court was justified in acquitting the accused. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 27th April, 2010 (Rajiv Sharma) (m) Judge