1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 277 of 2001 Decided on March 05, 2011 State of H.P. …Appellant. Versus Prakash alias Prakash Chand ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Rakesh Raghuvanshi, Advocate. Justice Surinder Singh,J. (oral) The present appeal by the State has been directed against the acquittal of the respondent passed by the learned Trial Court on 27.11.2000 in Sessions Trial No.28 of 1998, for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 100 grams of charas. 2. Heard and gone through the record. 3. The factual matrix giving rise to the instant appeal may be stated thus. On 17.12.1997, ASI Jai Chand (PW7) was on night patrolling duty alongwith Head 2 Constable Balak Ram and Constables Bhikham Ram and Deep Chand in Chobatta Bazar, Mandi. At about 4.30 A.M., they stopped respondent on suspicion carrying contraband, who coming from the side of the Post Office, on seeing the police party took U turn. On enquiry, he disclosed his name as Prakash Chand stated to be resident of Delhi. At that time, Tej Ram (PW2), known to the said police officer, was coming from the bus-stand side, he was stopped and associated as a witness. In presence of said witness, he gave option (Ex.PW1/A), in writing to the respondent to satisfy the mandatory provisions of Section 50 of the Act as to whether he wanted to be searched before a Magistrate or Gazetted Officer. He was illiterate and on having read the contents of Ex.PW1/A, he agreed to be searched by the police party present there vide his consent memo (Ex.PW1/B) which was thumb-marked by him. On conducting the personal search of the respondent, a shining purse Ex.P2 was recovered from the pocket of his jacket worn by him. It contained a yellow polythene purse in it which was having 100 grams billets of charas. Out of the recovered charas, two samples of 10 grams each were separated and put them into two separate empty match boxes. The remaining residue was also sealed separately with seal impression 'J'. The specimen of the seal was also taken on a piece of cloth Ex.PW7/C. The case property was 3 taken into possession vide memo (Ex.PW1/C). 4. A Rukka (Ex.PW7/A) was sent for registration of the case. The police also prepared site plan of the spot of recovery (Ex.PW7/B) and recorded the statements of the witnesses. 5. The respondent was arrested and he was informed of the ground of arrest vide memo Ex.PW1/D. 6. The respondent alongwith the case property was produced before SHO Om Prakash. He resealed the case property with seal 'T' and issued certificate Ex.PW7/D. SHO aforesaid, deposited the case property with MHC Gambhir Singh (PW5). 7. A special report Ex.PW4/A was sent to the Additional Superintendent of Police, Mandi, through Constable Hem Singh within the statutory period. One of the samples was sent through Constable Beli Ram (PW6) to CTL Kandaghat. On its deposit, he obtained a receipt and handed over back to MHC Gambhir Singh (PW5). The sample tested positive for charas per report Ex.PY, it contained resin 8.27% in the sample and also had the cystolithic hair present and the Chemical Examiner was of the opinion that the sample parcel contained the contents of charas. 8. After completing the investigation, challan against the respondent was filed for the aforesaid offence, 4 he was put on trial and at the end acquitted by the learned trial court mainly on the ground of contradictions appearing in the statements of the witnesses with respect to the execution of the documents and recovery. 9. We have carefully scrutinized the evidence on record. According to PW2 Tej Ram, consent memo as also the recovery memos were prepared in Police Station. Whereas, I.O. Jai Chand (PW7) stated having prepared the documents on the spot. Surprisingly PW2 Tej Ram was not re-examined on this score by the Public Prosecutor to know as to why he was stating so which prima-facie appeared to be contrary to prosecution story. 10. Further, we also find that the Investigating Officer, Jai Chand (PW7) stated that he prepared three search memos for conducting search, which itself makes the prosecution case doubtful as to what was the reason for preparing three search memos. 11. Also find that PW2 Tej Ram, is not an independent witness, though the Investigating Officer stated that he knew him prior to the alleged incident but suppressed the fact that his brother was a Cook in the Police Station. When Tej Ram was cross-examined, he did not admit that his brother was Cook in Police Station, whereas, PW7 Jai Chand, Investigating Officer admitted this fact. The very fact of suppression of this fact is also 5 indication of the fact that the documentation was done by the Investigating Officer in the Police Station as stated by PW2 Tej Ram, as he happened to be present in the Police Station itself with his brother who was a Cook and he must not met the police party in the Chobatta Bazar. 12. In so far as the compliance of Section 50 of the Act, in the instant case is concerned, the alleged recovery is effected on personal search of the respondent, though no particular form has been prescribed under the law to give the option either orally or in writing, yet the option is required to be given apprising his right to be searched before a Magistrate or a gazetted officer. In the instant case as stated above, prosecution alleges that written option was given to the respondent, before conducting his search, but if the recovery preceded, the preparation of the said document that too without apprising of his right as aforesaid would definitely go to the root of the case. In Vijaysingh Chandubha Jadeja, 2011 (1) SCC 609, question that arose before the Supreme Court was whether Section 50 of the Act casts a duty on the empowered officer to “inform” the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said 6 to be due compliance with the mandate of the Section 50. The Constitution Bench, before answering aforesaid reference, examined various judgments passed by it and conclude in para 29 of the said judgment, as under:- “29. In view of the forgoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of the planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” 13. Against the aforesaid background it was observed in para 31 as follows:- “31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is 7 in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.” 14. In the instant case, apart from the fact that there are material contradictions with respect to the recovery and execution of the documents, as stated above, but even the option, as conveyed to the respondent, in terms of Ex.PW1/A is found not in conformity with the above judgment of the Apex Court. 15. Another important fact, which emerges from the evidence of the prosecution, is that PW2 Tej Ram aforesaid stated that recovery of charas was effected from the pocket of the pant of the respondent, whereas case of the prosecution is that it was recovered from the pocket of the jacket worn by the respondent. Thus the very fact of recovery is doubtful. 16. Thus, for the foregoing reasons, we find that the prosecution has miserably failed to prove its case that the alleged recovery of contraband has been effected from the possession of the respondent. Further, we also find breach of non complying the mandatory provision of Section 50 of the Act, as stated above. Therefore, the acquittal of the respondent cannot be interfered with. The State appeal 8 sans merit, hence dismissed. 17. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records. (R.B. Misra) Judge March 05, 2011 (Surinder Singh) (Purohit) Judge