Criminal Appeal No. 1276-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 1276-SB of 2005 Date of Decision:October 12,2010 Dhan Kumari ...........Appellant Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mrs.Anju Arora, Advocate for the appellant. Mr.Satyavir Singh Yadav, Deputy Advocate General, Haryana ** Sabina, J. Accused-Dhan Kumari was convicted for an offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`the Act' for short) vide judgment dated 30.5.2005 passed by the Special Judge, Faridabad. Vide order dated 1.6.2005, accused was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-. Hence, the present appeal by the appellant- accused. The case of the prosecution, as noticed by the trial Court in para 2 of its judgment, is reproduced here in below:- "2.The prosecution story revealed in the statement of various witnesses and material available on record in brief is SI Maya Criminal Appeal No. 1276-SB of 2005 -2- Ram Station House Officer, Police Station GRP Faridabad alongwith his men was present near CTI office at Platform No.1 . Railway Station Faridabad in connection with patrol duty and crime detection at about 12.30 p.m. on 13.12.2003. He met and was talking with one Gopal son of Ganga Ram resident of Asaoti Police Station Sadar Ballabgarh, District Faridabad. Constable Krishan Kumar, Constable Ravinder and Constable Rajesh of Police Post GRP Delhi on duty on passenger train Mangla Express No. 2618 UP apprehended six persons, two men and four women including the accused Dhan Kumari on suspicion during the checking between Faridabad to Ballabgarh, brought the accused to Faridabad, presented before SI Maya Ram, Station House Officer, Police Station GRP Faridabad. SI Maya Ram suspected the accused possessing contraband, served a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act,1985. The accused opted to get the search conducted in the presence of a Gazetted Officer, Dy. S.P. Smt. Satya Vati was called at the spot. The search of the person of the accused resulted in recovery of 2.200 Kgs. Charas tied to the body with a piece of cloth. The accused failed to produce any permit or licence on demand. One samples of 20 grams was separated from the recovered contraband and the sample and the remainder were duly sealed separately with the seal of SI. Maya Ram and of Dy.S.P. Smt. Satya Vati and were taken into possession in the presence of witnesses in accordance with law/rules. A ruqa was sent to the police station for registration of the case on the basis of Criminal Appeal No. 1276-SB of 2005 -3- which formal FIR of the case was recorded. A rough site plan with correct marginal notes of the place of recovery was prepared and statement of the witnesses under Section 161 Code of Criminal Procedure, 1973 were recorded. The sample was got analysed from FSL. Madhuban who after test opined that the sample sent for analysis was that of charas. Inspector Randhir Singh, Station House Officer, Police Station GRP Faridabad after completion of all the formalities regarding investigation prepared and submitted report under Section 173 Code of Criminal Procedure, 1973." Learned counsel for the appellant has submitted that the provisions of Section 50 of the Act had been violated in this case. As per PW5, Deputy Superintendent of Police Satya, the appellant was searched on 14.12.2003, whereas, as per PW6 Sub Inspector Maya Ram, the search had been conducted on 13.12.2003. The appellant has undergone six years of sentence. Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The appellant had been found in possession of 2.200 kilograms charas. 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 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Criminal Appeal No. 1276-SB of 2005 -4- Officer of any of the department 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 search 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. (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) (4)After a search is conducted under sub section (5), the officer shall record the reason for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior”. Thus, as per the said provisions, before a suspect is personally searched, an offer has to be given to the suspect that he can get his search effected in the Criminal Appeal No. 1276-SB of 2005 -5- presence of a Magistrate or a Gazetted Officer. In the present case, the consent memo is Exhibit PE. A perusal of the same reveals that the offer made by the appellant was that she would get her search effected in the presence of a Magistrate or a Senior Officer. As per Section 50 of the Act, the offer had to be made to the appellant that she could get her search effected in the presence of a Magistrate or a Gazetted Officer,whereas, in the present case, the offer has not been made as per the provisions of Section 50 of the Act. Thus, the offer made to the appellant was a partial offer and on this ground, the appellant is liable to be acquitted. Another lacuna in the prosecution case is that as per PW6 Sub inspector Mange Ram, on 13.12.2003 he had apprehended six persons at platform No.2 i.e. two men and four women. Thereafter, he had informed Deputy Superintendent of Police Satya and she had reached the spot and the appellant was searched. During her search, charas was recovered wrapped on the waist of the appellant. However, PW5 Deputy Superintendent of Police Satya has deposed that on 14.12.2003, she had conducted search of the appellant and the contraband was recovered which was tied on her abdomen. This discrepancy is a major discrepancy and is fatal to the prosecution case. On this ground alone, the appellant is entitled for acquittal. Accordingly, this appeal is allowed. The impugned judgment/order of conviction and sentence of the appellant are set aside. Appellant is acquitted of the charge framed against her by giving her benefit of doubt. ( Sabina ) October 12, 2010 Judge arya