IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 679 of 1996 Date of Decision: 1.7.2010 State of H.P. …Appellant. Versus. Mahesh Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent: Mr. Rakesh Jaswal, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 15.12.1995 delivered by the learned Sessions Judge, Chamba in Sessions Case No. 21 of 1995 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in- after referred to as the Act). 2. The prosecution story, in brief, is that on 25.1.1995 PW-8 ASI Dharam Chand, who was incharge of the Reporting Room, Police Station-Dalhousie was going on foot from Tunuhatti towards Nainikhad. He was 2 accompanied by HC Krishan Gopal, constables Jallo Ram, Desh Raj and Suresh Kumar, etc. When they reached near the Shiv Mandir they saw a Sadhu approaching from the opposite side. On seeing the police personnel, the Sadhu turned back and tried to run away. This aroused the suspicion of the police personnel who apprehended the Sadhu. In the meantime, a taxi came to the spot and two of the occupants of the taxi got down from the taxi and inquired why the Sadhu had been apprehended. These two occupants were PW-1 Vinod Kumar and one Pritam Singh. The Sadhu was questioned about his name, etc. and he was also told that there was apprehension that he was carrying some contraband substance and therefore he would be searched. 3. An option was given to him whether he would like to be searched before a Magistrate or Gazetted Officer or before the Police Official itself vide memo Ext.PA. Below the said memo, it has been recorded in the hand of the police official that the accused wanted to be searched in the presence of the “Gazetted Officer Police”. Thereafter the accused was searched in the presence of PW-7 Uttam Chand, Dy.S.P. Chamera Project and on his search it was found that he was carrying a polythene bag inside his 3 Langote and on opening the polythene bag it was found to contain the charas. 4. The charas was weighed after arranging for scales and weights. It was found to weighing 500 grams. A sample of 10 grams was taken out and the sample as well as the remaining bulk charas were sealed in remaining two sealed parcels and sealed with seal “D”. Sample seal impression was taken on a cloth and handed over to PW- 1 Vinod Kumar. The charas was taken into possession vide memo Ext.PB. The accused was informed about the reasons for his arrest vide memo Ext.PC. Rukka Ext.PE was sent for registration of the case through constable Jallo Ram. Thereafter, other codal formalities were completed on the spot. On arrival at the police station, PW-8 handed over the case property to the SHO in- charge of Police Station Dalhousie (PW-6) who put his seal “T” on the parcel and then handed over the said parcel to MHC PW-3 Budhi Prakash. Thereafter, the sample was sent through constable Gobind Ram PW-2 to the CTL Kandaghat and vide report Ext.PH it was opined that the sample was of charas. 5. On this basis challan was filed against the accused. The learned trial Court acquitted the accused on the ground that Sections 50 and 51 of the Act had not been 4 complied with and also on the ground that there were inconsistencies in the statements of the witnesses and the documents as to the place of actual search of the accused. 6. Admittedly, this is a case of personal search and Section 50 of the Act is attracted, which reads as follows:- “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 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. (4) No female shall be searched by anyone excepting a female. 5 [(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.]” 7. A Constitution Bench of the Apex Court in State of Punjab v. 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 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. 6 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) 8. A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gurajar, 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 his right to be searched before a gazetted officer or a Magistrate. 9. Thereafter, the Apex Court in Man Bahadur v. State of H.P., JT 2008 (10) SC 518 again followed the aforesaid judgments and held that not only the consent of the accused should be taken but the accused must also be 7 informed of his right to get himself searched in the presence of the Magistrate. 10. In this case there is total non-compliance of Section 50. The petitioner was not informed that he had a right to be searched before a Gazetted Officer or a Magistrate. Merely informing him that he could be searched before a Gazetted Officer or Magistrate may not be sufficient. Furthermore, as pointed out above in the memo Ext.PA when the choice was given to the accused he was asked whether he wanted to be searched before a Magistrate/Gazetted Officer or by the Police Official themselves. In answer thereto it has been recorded that the accused agreed to be searched before a “Gazetted Officer Police”. There is no explanation as to how the word “Police” came in. The accused would have only opted to be searched before a Gazetted Officer or a Magistrate. Why would he add the word Police after the word Gazetted Officer. In this behalf it would be pertinent to mention that PW-1 Pritam Singh, who is one of the independent witnesses, has stated that the accused told the police that he would give his search before a Gazetted Officer. Even he does not state that the accused stated that the accused wanted to be searched before the Gazetted Officer of the Police 8 department. Therefore, there is non compliance of Section 50. 11. In addition thereto, there is a material contradiction in the documentary and oral evidence. As per the seizure memo Ext.PB, Rukka Ext.PE and F.I.R. Ext.PF as well as special report Ext.PG the search was conducted on the road side itself. However, PW-7 and PW-8 while appearing in Court have stated that the search was conducted in the check-post of Tunuhatti barrier. 12. It may also be noticed that the learned trial Court has observed and rightly so that the manner in which the so called independent witnesses have been associated is also not free from suspicion. From the evidence on record, it is apparent that the check-post at Tunuhatti barrier is close to the place from where the accused was apprehended. According to the prosecution and as per the evidence produced in Court the accused was searched in the check-post at Tunuhatti barrier. Admittedly, the excise check-post is adjacent to this police check-post. It has also come in evidence that there were a number of shops and houses near the barrier. Therefore, it does not stand to reason why the persons who just happened to be crossing were associated with the search and no effort 9 was made to associate the permanent residents of the area. This also casts a doubt on the prosecution story. 13. The learned trial Court was fully justified in acquitting the accused. We find no merit in the appeal. The same is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 1st July, 2010 ( Sanjay Karol ) ™ Judge.