IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 285 of 1997 Date of decision: 20.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Rajesh Kumar .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Mr. Balwant Singh, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 27.11.1995, passed by the learned Additional Sessions Judge, Shimla, District Shimla, in Sessions Trial No. 26-S/7 of 1993, acquitting the alleged accused under Section 20 of Narcotic Drugs & Psychotropic Substances Act in reference to FIR No. 63 of 1993. 2. Prosecution case in brief is that on 22.03.1993, at about 7.15 p.m., Shri D.W. Negi, Inspector/SHO, Police Station East 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- Shimla, while on general patrolling duty alongwith other police officials at Chhota Shimla Bazar, when, reached near H.P. Secretariat gate, they saw one person coming and on suspicion, the SHO disclosed his identity to the said person and asked for his personal search after giving him the option for search either by the Police Officer or some Gazetted Officer or a Magistrate. The SHO has taken the written consent from the accused for his personal search in the presence of witnesses, and some quantity of opium and powder of poppy was recovered from his right pocket of the pant. On interrogation, the person disclosed his name as Rajesh Kumar son of Shri Paras Ram. The recovered quantity of opium and poppy powder were 430 grams and 30 grams respectively. The SHO took out 25 grams of opium and 5 grams of poppy powder for the purpose of Chemical examination of the seized quantity and sealed the same separately alongwith the remaining quantity of poppy and powder of poppy in the presence of witnesses with seal impression 'A'. The seal after use was handed over to witness Ajay Bhasker. The SHO also sent a rukka from the spot for registration of a case through constable Jiwan Kumar C. No. 641. 3. After conclusion of the investigation, the accused- respondent was charged for the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act and the case was committed to the Sessions Court. 4. In order to prove its case, prosecution examined as many as seven witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. -: 3 :- 5. PW-1 is Raj Kumar and PW-2 is Ajay Bhaskar who were the eye-witnesses, but they have stated that they were called in Police Station, Chhota Shimla and something was lying on the table of the Police and their signatures were taken on certain papers in the Police Station. Both the witnesses have admitted that they have signed the memos, Ex. PW-1/A to Ex. PW1/E, but stated that they have not gone through the contents of the documents. Both the witnesses were declared hostile. In cross- examination, the witnesses have denied the entire prosecution case and even the statement recorded by the police under Section 161 Cr.P.C., they have also denied the recovery of the opium and powder of poppy from the possession of the accused. They have also denied obtaining of the consent of the accused vide memo, Ex. PW-1/C. Nothing more has been extracted from these PWs. 6. PW-3 Phul Prakash, Inspector, who recorded the FIR, Ex. PW-3/C, PW-4 is Mohinder Dutt, Constable No. 662, PW-5 is Ramesh Chand, Head Constable, PW-6 is Parkash Chand, Constable No. 123 and PW-7 is D.W. Negi, Inspector/SHO. These witnesses during the discharge of their official duties have done the duties assigned to them and they have supported the prosecution case to this extent only. 7. Section 50 of the Narcotic Drugs & Psychotropic Substances Act reads as under: “Conditions under which search or persons shall be conducted:- (1) When any officer duly authorised under -: 4 :- 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 un-necessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 of 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. The scope of above provisions was considered by the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh 1994(1) Crimes 753, wherein it was held:- “One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of N.D & P.S. Act by the empowered or authorised Officer while conducting the search, affects the prosecution case. The said provisions (Section 50) lays down that any officer duly authorised under Section 42, who is providing an important safeguard to the accused. To accord such an opportunity to the person to be searched, he must -: 5 :- be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right”. 9. The right by way of safeguard conferred under Section 50 in the context is to be taken as an imperative requirement on the part of the Officer, intending to search to inform the person to be searched of his right that if so chooses, he will be searched in the presence of a gazetted officer or a Magistrate. Thus, the provisions of Section 50 of the N.D. & P.S. Act are mandatory. Relying upon such rule of law laid down by the Hon'ble Supreme Court, the Hon'ble High Court of Bombay in Henri Keiro vs. State of Goa, 1994(2) Crimes 628, has held that on non-compliance of the mandatory provisions of Section 50 of the N.D. & P.S. Act the trial stands vitiated and the accused is entitled to be acquitted. 10. On scrutiny of the prosecution witnesses and the material on record, it appears that two prosecution witnesses, PW-1 and PW-2, who were said to be present on the spot at the time of recovery of opium have turned hostile and have simply stated that something was lying on the table of the police officials in the police station and both the witnesses have put their signatures on the memos, Ex. PW-1/A to Ex. PW-1/E. Officials witnesses are also not of much substance to support the prosecution case. In the present case, the pocket of the accused was searched and before making search the accused was not -: 6 :- apprised of the fact that he is ready to be searched or not. PW-7 D.W. Negi, SHO, has nowhere mentioned that the accused is having valuable right and he has a right to be searched in the presence of a Gazetted Officer. Secondly, the eye-witnesses, PW-1 Raj Kumar and PW-2 Ajay Bhaskar have also not supported the version of the prosecution. PWs 1 and 2 have specifically stated that they were called by the police in the police station and the police has taken their signatures on all the memos in the police station. Both the alleged eye-witnesses have stated that no recovery was effected in their presence from the accused. Further, there are contradictions in the statements of police officials. PW-6 Parkash Chand constable has stated that the weighing scale was brought at the spot by Jamed Kumar constable, whereas, PW-7 D.W. Negi has stated on oath that the weighing scale was already with them at the spot, which shows that both these police officials are concealing the material facts. 11. Learned Sessions Judge has also found that the mandatory requirement of Section 50 has not been complied with. In view of the such inconsistencies, contradictions and non- compliance of mandatory requirement of Section 50, the learned Sessions Judge has rightly acquitted the accused. 12. In our considered view, the prosecution has failed to bring home the guilt against the accused and to prove its case beyond reasonable doubt. After going through the impugned judgment, we do not find any scope of interference in the -: 7 :- judgment of the trial court and appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 20th August, 2010 (virender)