IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 323 of 1999 Judgment reserved on : 14.6.2010 Date of Decision : July 9 , 2010 State of Himachal Pradesh Appellant Versus Ved Parkash Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant/State. For the respondent : Mr. Hoshiyar Kaushal, Advocate, vice Mr. Karan Singh Kanwar, Advocate, for the respondent/accused. Sanjay Karol, J. For an offence, which is alleged to have been committed on 27.12.1997, accused was put to trial. In terms of judgment dated 3.4.1999 passed by the learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 21-N/7 of 1998, titled as State of H.P. versus Ved Parkash, the accused stands acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. As per the case of the prosecution on 27.12.1997, ASI Surjit Ram (PW-7) alongwith Constable Kamal Khan (PW-2) and HC Mahinder Singh was on patrolling duty at Bangran Bye-pass, Paonta Sahib. PW-7 received a secret information that Ved Parkash (accused) was carrying charas and wandering in suspicious circumstances. Consequently a raiding party was constituted involving two independent persons namely Sh. Ghasi Ram and Basu Dev (PW-1). When the police saw the accused he was stopped. PW-7 expressed his desire to search the accused. Option of being searched either before him, before a Gazetted Officer or a Magistrate was given. Memo (Ext. PB) was prepared in this regard. However accused consented to be searched by PW-7 vide memo Ext. PD. Before searching the accused the raiding party gave their personal search to the independent persons on the spot. Thereafter the accused was searched. A polythene packet containing 300 grams of charas was found on his body. The police prepared two samples of 25 grams each which were sealed in separate parcels with seal impression-T. The recovered charas was taken into possession vide memo (Ext. PA) which was duly signed by the independent persons present at the spot as witnesses. Ruka (Ext. PG) was prepared at the site and sent through PW-2 to Police Station, Paonta Sahib where F.I.R. dated 27.12.1997 (Ext. PL) was registered under Section 20 of the N.D.P.S. Act. The accused was arrested at the spot. Special Report (Ext. PJ) was sent to the Deputy Superintendent of Police, Paonta Sahib and the accused and 3 the case property was taken to the Dy. S.P. where it was again resealed with seal impression-M. On 27.1.1998, Constable Sanjay Kumar (PW-6) was deputed to deposit the sample parcel of charas with C. T. L. Kandaghat for chemical examination. The same was duly deposited and report (Ext. PN) obtained there from. 3. With the completion of the investigation challan was presented in the Court for trial. The accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) to which he did not plead guilt and claimed trial. In order to prove its case prosecution examined seven witnesses. Statement of the accused under Section 313 Cr. P.C. was also recorded. 4. The Court below acquitted the accused of the charged offence. Hence the present appeal. 5. The recovery is alleged to have taken place in the presence of two independent witnesses. Sh. Basu Dev (PW-1) has not supported the case of the prosecution at all. Even though he was extensively examined by the Public Prosecutor but however nothing material could come out from his statement with which the accused could be linked to the alleged crime. He denied the accused being searched in his presence or the contraband substance being recovered from the possession of the accused. He signed the documents allegedly under coercion. 4 6. The prosecution has not examined the other witness Sh. Ghasi Ram for the reasons best known to it. 7. This however would not make the prosecution case fatal due to lack of independent corroborative evidence. 8. To our mind the statements of the police officials PW-2 and PW-7 also does not inspire confidence. Whereas PW-2 is silent with respect to the option of search given to the accused, PW-7 has deposed that the accused was given an option to get himself searched either before the Magistrate, the Gazetted Officer or the police officer. This version of PW-7 is contradicted by Ext. PD itself in which the word “Magistrate” does not find mention. 9. Section 50 of the Act 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) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the 5 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.]” 10. A Constitution Bench of the Apex Court in State of Punjab versus 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 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 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. 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 6 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) 11. A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, 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. 12. Thereafter, the Apex Court in Man Bahadur versus State of H.P. JT 2008 (10) SC 518 again followed the aforesaid judgements and held that not 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 the Magistrate. 13. We may also add that another independent witness Sh. Rajesh Kumar (PW-4) from whom the scale and weights were allegedly brought has also not supported the prosecution case. 14. In the absence of any clear, cogent and convincing material we see no ground to interfere with the well reasoned judgment passed by the learned Court below. 7 15. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. July 9 , 2010 (PK)