IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 74 of 1996 Date of Decision : February 26, 2010 State of Himachal Pradesh Appellant Versus Vipon Lal 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, Addl. Advocate General with Mr. Ram Murti Bisht, Dy. Advocate General for the appellant. For the respondent : Mr. Vikram Thakur, Advocate, vice counsel for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 22.11.1994 in Sessions Trial No. 6-NS/7 of 94 whereby the accused has been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Briefly stated the facts are that Inspector Bhag Singh (PW-5) was on patrol duty with Ranjit Singh (PW-1) and some other constables. PW-5 received secret information that one person 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 wearing a black and white jersey was strolling near the cold-storage in Sector-1, Parwanoo and was carrying some contraband substance. On this Inspector Bhag Singh (PW-5) constituted a raiding party consisting of himself and the police officials. He also associated two independent witnesses namely Sh. Krishan Kumar and Sh. Kuldeep. This raiding party went to the spot at about 1.00 P.M. and the accused was apprehended. He disclosed his name to be Vipon Lal. He was searched and on his search 500 gms. of Charas was recovered from the left side of the chest underneath the jersey. Two samples of 50 gms. each were separately taken. The bulk Charas and both the samples were sealed with seal-T and thereafter one sample was sent for chemical analysis to the Forensic Science Laboratory, Bharari. The sample was found to be of Charas. Thereafter challan was put up against the accused. The accused has been acquitted on two counts. One that this was a case of prior information and there is non compliance of Section 42(1) of the Act and also on account of the fact that there is non compliance of Section 50 of the Act. For the purpose of this appeal we are confining our discussions only with respect to Section 50 of the Act. According to Sh. Ranjit Singh (PW-1), Inspector Bhag Singh had intimated the accused in writing as to before whom he wanted to give his search. Sh. Krishan Kumar (PW-2) is an independent witness. He states that the Inspector disclosed to the accused that he was having suspicion about him and thus he wanted to conduct 3 his search and the accused consented to give his search to the Inspector. Inspector Bhag Singh (PW-5) is the Investigating Officer. He firstly stated that he had asked the accused in writing whether the accused was willing to give his search to him or to a Gazetted Officer or a Magistrate and Vipon Lal accused gave his consent in writing that he wanted to be searched by the police officials. Later he states that he in fact had not sought for the option of the accused in writing but the accused himself had given the option in writing. There are three contradictory versions in this regard. As per PW-1 the accused was asked for his option in writing. PW-1 does not say that the option was given to the accused to be searched in the presence of a Gazetted Officer or a Magistrate nor was the accused told that he had a right to be searched before such authorities. As far as the independent witness is concerned he stated that in his presence the Investigating Officer had only asked the accused whether he wanted to give his search to the “Inspector” therefore there is no reference to any option having been given for search before a Magistrate or a Gazetted Officer. Statement of PW-5 does not inspire confidence. It is not supported by any contemporaneous material. In fact PW-5 firstly stated that he had given option in writing but that was withheld from the Court. Therefore, adverse inference can be drawn. His assertion that he had orally asked the accused as to whether the accused wanted to be searched by him or before a Gazetted Officer or a Magistrate appears to be totally false 4 in view of the clear cut statements of PW-1 and PW-2. Even this witness does not state that he informed the accused that he had a right to be searched before a Gazetted Officer or a Magistrate and therefore such oral option even if given is not in accordance with law and is contrary to the law laid down by the Apex Court in State of Punjab versus Baldev Singh, (1999) 6 SCC 172; Vijaysinh Chandubha Jadeja versus State of Gujarat, (2007) 1 SCC 433 and Man Bahadur Versus State of H.P. JT 2008 (10) SC 518 as well as judgment of this Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557. On this short ground alone we find no merit in the present appeal which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. February 26, 2010 (PK)