IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 368 of 1999. Date of decision: July 28th, 2010 _________________________________________________ State of HP …Appellant. Versus Kamal God …Respondent Coram: The Hon’ble Mr.Justice R.B.Misra , Judge. The Hon’ble Mr.Justice V.K. Sharma, Judge Whether approved for reporting? For the Appellant : Mr. Rajinder Dogra, Addl.A.G with Mr. Anil Jaswal, Dy.A.G. For the Respondent : Ms. Charu Gupta,vice Mr.Neeraj Gupta Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 7.11.1996, passed by learned Additional Sessions Judge, Solan in Sessions Trial No.2-S/7 of 1996, thereby acquitting the respondent/ accused for offence under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). 2 2. In order to adjudicate the present criminal appeal, it is necessary to give brief facts of the case. On 10.1.1996 accused/respondent was apprehended by a police team, comprising of Rattan Chand, PW-7 and Paras Ram,PW-4 . At about 2:15 P.M, contraband goods were recovered from accused Kamal God when he was near Bus Stand Kandaghat. On apprising the accused by PW-, whether he wanted to be searched by a Magistrate or by a Gazetted Officer or he would like to be searched by Police Officer .The accused signed the consent memo EX.PW3/A that he is ready to search by the Police, accordingly search was made in presence of witnesses and polythene bag containing opium ExP-1 was recovered from his inner pocket of coat, thereafter, Ramesh Kumar, PW-1, Jeweller was called from nearby shop, alongwith weighing machine. 3. On weighment of the contraband, it was found to be of 200 grams, out of which 10 grams each, was kept in two samples and was sealed in two match boxes and the remaining bulk of contraband goods was sealed in tin container and the same was sealed with seal impression ‘B’. PW-3, Narinder Mohan and PW-4, Paras Ram are said to have witnessed the recovery and accordingly F.I.R EX.PW6/B was registered against the accused and samples were sealed vide impression ’C’ and the same was sent to the Chemical Examiner on 12.1.1996 through Constable Nathu Ram,PW-5 and Chemical Examiner’s Report EX.PW7/F was obtained. Thereafter, accused/respondent was charged for the 3 offence under section 17 of the N.D.P.S Act. The case was committed to Sessions Court. 4. In order to prove its case, the prosecution has examined as many as seven prosecution witnesses, whereas the accused, through his statement under Section 313 Cr.P.C has denied the prosecution case. PW-2 Dalip Kumar has witnessed the packets being sealed. PW-3, Narinder Mohan, is an eye witness, in whose presence the accused was apprehended by the police and his consent regarding search, EX.PW3/A, was also obtained and also signed by the witness and also by the accused in his presence and Opium was found to be 200 grams which was recovered from the accused. PW-4 Paras Ram has also witnessed the recovery of contraband goods. PW-3 and PW-4 have put their signatures on the recovery memos. PW-5, Constable Nathu Ram, has stated to have deposited the sealed packet in Chemical Test Laboratory Kandaghat vide R.C No.170/96. PW-6, Bachitter Singh, on receiving Ruka EX.PW6/A has reported F.I.R EX.PW6/B and PW- 7, Rattan Chand Sharma, was Investigating Officer of the case and has recorded secret information EX.PW7/A and constituted raiding party, including two witnesses and had apprehended the accused and made the search. PW-7 Rattan Chand Sharma, had carried out the search of the accused and he has stated to the accused after apprehending him that whether he would like to be searched by Police Officers. The Inder Kumar and Ajit Singh, who are said to be associated at the time of search have not been examined by the prosecution. 4 5. However, PW-3 Narinder Mohan and PW-4 Paras Ram said to be independent witnesses, had put their signatures on recovery of the contraband goods, out of whom only Narinder Mohan ,PW-3 has supported the prosecution case to the extent they discharged their official duties.. However, PW-4 Paras Ram, has not supported the prosecution case and has turned hostile. On the point of non compliance of requirement of Section 50 of ‘N.D.P.S Act’ and for non compliance of directory requirement of provisions of Sections 55 and 57 of ‘N.D.P.S Act,’ learned Sessions Judge has rightly come to the conclusion that the prosecution has not proved its case beyond all reasonable doubt . 6. A Constitution Bench of the Supreme Court in State of Punjab Versus Baldev Singh,1999(6) SCC 172, has observed that the accused has a right to be searched before a Magistrate or a 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 Constitution Bench has observed 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 further observed 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 authorized officer acting on prior 5 information is about to search a person, it is imperative for him 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 search before a Gazetted Officer or Magistrate would cause prejudice to an accused. (emphasis supplied) A three Judge Bench of the Supreme Court in Vijaysinh Chandubha Jadeja V State of Gujarat 2007 (1) SCC 433, has noticed the aforementioned verdict laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted Officer or a Magistrate. Thereafter, Hon’ble Supreme Court in Man Bahadur Versus State of H.P, JT 2008 (10) SCC 518 again followed the above judgments and held that nto only the consent of the accused should be taken but the accused must also be informed of his right to get himself searched in presence of a Magistrate. 6 7. Following above decisions, the Division Bench of this High Court of Himachal Pradesh in State of H.P Vs. Fateh Singh Latest HLJ 2009 (HP)684 has also taken the similar above view. 8. In the present case, Sh. Anil Jaswal, Ld. Additional Advocate General has endeavoured to convince that two of the independent witnesses i.e PW-3 Narinder Mohan and PW-4 Paras Ram, have supported the prosecution case to the extent that they have witnessed the recovery of contraband goods despite the fact that PW-4 Paras Ram has been declared hostile. However, the accused was apprised of before search whether he wanted to be searched by a Magistrate or a Gazetted Officer or by a Police Officer and after obtaining his consent, search was made by the Police Officer which was witnessed by PW-3 Narinder Mohan and PW-4 Paras Ram, i.e by two independent witnesses. Such appraisal to the accused before his search shall tantamount to meet the requirement of Section 50 of ‘N.D.P.S Act’. According to Mr.Jaswal, on search, the contraband goods were required and samples of 10 gram each were taken at the spot and those were sealed separately and were put into the proper seal and same were for chemical examination. Report was conclusive that the sample was opium found from the possession of the accused. 9. Keeping in view the testimony of PW-3 Narinder Mohan and substantial part of PW-4 Paras Ram in support of other prosecution witnesses proved that the accused at the relevant time was carrying 20 grams of opium under his custody and on personal 7 search the same was recovered which was properly witnessed by the prosecution witnesses, as such, the finding of learned Sessions Judge acquitting the accused/ respondent is not legally correct. 10. On the other hand Ms. Charu Gupta, learned counsel for the respondent, has tried to impress that for lack of compliance of statutory requirement of provisions of Section 50 of N.D.P.S Act, the prosecution can not stand on its own legs. The Police Officer at the relevant time was under legal obligation to meet out the mandatory requirement and to apprise the accused that he has the right to be searched. By saying merely that whether he/ accused would like to be searched by the Police Officer or Magistrate or Guzetted Officer is not a requirement to meet the provisions of Section 50 of N.D.P.S Act. In support of submissions, Ms. Charu Gupta has given the following authorities: 1. Latest HLJ 2009(HP) 684, State of H.P. Versus Fateh Singh 2. (207)1 S.C.C. 433, Vijay Singh Chandubha Jadeja Vs. Gujarat 3. 1999 (6) S.C.C 172,state of Punjab versus Baldev Singh 4. Cr. Appeal No.185 of 1996, State of H.P. versus Roshni Devi decided on 25.2.2010 by the Division Bench of High Court of H.P. 11. This High Court (D.B) in its decision dated 18.6.2010, while vide disposing of Cr. Appeal No.181 of 1997, (State of H.P Vs. Vikas Sharma) has considered earlier cases on the point and has observed that the police party did not apprise the accused at the 8 relevant time that he had a right to get himself searched in presence of a Magistrate merely asking the accused that whether he wanted to be searched by the police party present on the spot or by a Gazetted Officer or a Magistrate and on agreeing of accused making of search could not be fulfilled, the mandatory requirement of Section 50 of N.D.P.S Act in view of the decision of Supreme Court in J.T 2010 (2) SC 175 Ajmer Singh Vs. State of Haryana, 12. A Constitution Bench of the Supreme Court in State of Punjab Versus Baldev Singh,1999(6) SCC 172, has observed that the accused as 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 Constitution Bench has observed 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 further observed 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 authorized officer acting on prior information is about to search a person, it is imperative for him inform the person concerned of his right under sub section(1) of 9 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 search before a Gazetted Officer or Magistrate would cause prejudice to an accused (emphasis supplied) A three Judges Bench of the Supreme Court in Vijaysinh Chandubha Jadeja V State of Gujarat 2007 (1) SCC 433, has noticed the aforementioned verdict laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted Officer or a Magistrate”. 13. Thereafter, Hon’ble Supreme Court in Man Bahadur Versus State of H.P, JT 2008 (10) SCC 518 again followed the above judgments and held that no only the consent of the accused should be taken but the accused must also be informed of his right to get himself searched in the presence of Magistrate.” 14. In view of the facts and circumstances, learned Session Court has rightly come to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt and in our considered view, prosecution has failed to bring home the guilt to the accused and for lack 10 of compliance of mandatory provisions of Section 50 of NDPS Act, the case of the prosecution is vitiated. 15. Resultantly, the appeal fails, being devoid of any merit, as such the same is dismissed. Bail bonds furnished by the accused/ respondent are hereby discharged. (R.B. Misra), Judge (V.K.Sharma) 28th July,2010 Judge veena 11