IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 291 of 2003 Reserved on: 28.10.2011 Date of Decision: 4.11.2011 State of H.P. …Appellant. Versus. Deep Chand …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? Yes. For the appellant: Mr. Vivek Thakur, Addl. A.G. For the Respondents: Mr. Anup Chitkara, Advocate. Deepak Gupta, J 1. This appeal by the State is directed against the judgement dated 12.3.2003 passed by the learned Sessions Judge, Sirmaur, District Nahan in Sessions Trial No. 13-ST/7 of 2002 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as NDPS Act). 2. The prosecution story in brief is that on 13.2.2002 PW-9 ASI Chaman Lal alongwith H.C. Sehdev, C. Bhadur Singh and Pawan Kumar had laid a Naka on the Haripurdhar road about one Km from 2 Andheri towards Sangrah. At about 9.00 am a bus belonging to the HRTC was stopped. The police officials got into the bus and when PW-9 reached seat No. 41 he saw a young boy sitting there. The boy was wearing a jacket which was swollen at the belly. PW-9 pressed the swollen jacket and felt something in the shape of sticks and suspected that it might be charas. He thereafter recorded the reasons of his belief Ext.PW-8/A and sent the same through C. Pawan Kumar to the police station. Thereafter the Conductor and Driver and two other independent witnesses PW-4 Sahi Ram and one Subain Singh, who were present in the bus, were associated. The witnesses and the accused were asked to alight from the bus and then the accused was informed about his right to be searched by a Magistrate or Gazetted officer or the police vide memo Ext.PW-4/A. The accused gave his consent in writing that he was willing to be searched by the police. PW-9 then got himself searched by the accused. Thereafter the muffler which was wrapped around the belly of the accused was untied. Inside this muffler there was another parcel wrapped in a red cloth (Parna). When this Parna was opened, charas was found in the shape of sticks. Thereafter C. Bhadur Singh was asked to bring the weighing scale. On weighment the charas was found to be 1 Kg 480 grams. Two 3 samples of 20 grams each were taken and sealed separately and remaining charas was also sealed with seal ‘H’. The seal was handed over to witness Shahi Ram and the case property was taken into possession vide memo Ext.PW-4/C. Ruqua was sent to the police station which is Ext.PW-8/B. Thereafter the case property was handed over to PW-7 ASI Madan Lal, who prepared the site plan and recorded the statements of the witnesses. He handed the case property as well as the accused to SHO PW-8 SI Bansi Lal, who in turn resealed the case property with seal ‘T’ and deposited the same in the Malkahana alongwith seal and NCB form. Next day this witness after preparing the inventory, applied to the Tehsildar for taking photographs and the photographs of the sealed parcels were taken which photographs are Ext.P-1 to Ext.P-3. Special report was sent to the Superintendent of Police, Sirmaur. 3. PW-8 Bansi Lal had handed over the case property alongwith sample seals etc. to PW-5 MHC Mohan Singh who stated that the samples remained intact so long as it remained in his possession. PW-5 sent the samples alongwith seal impression to the CTL Kandaghat through C. Ramesh Kumar(PW-6) on 15.2.2002 who in turn deposited the same with the CTL Kandaghat. He also stated that the samples remained intact so long as they remained in his 4 custody. The Public Analyst furnished his report Ext.PW-8/E and the sample was found to be that of charas. On this basis the accused was charged with having committed an offence punishable under Section 20 of the NDPS Act. The learned trial Court acquitted the accused only on the ground that the prosecution has failed to prove that there was compliance of Sections 42 and 50 of the NDPS Act. 4. As far as Section 42 of the NDPS Act is concerned, in our opinion there was no need to comply with the provisions of Section 42 since this was not a case of prior information and in any event the search was made from a public conveyance i.e. HRTC bus and the provisions of Section 43 and not Section 42 would be applicable. 5. As far as Section 50 is concerned, the same would definitely apply. The Constitution Bench of Apex Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 dealt with the question as to how the provisions of Section 50 have to be complied with. The Apex Court held that Section 50 is mandatory and casts a duty upon the Investigating officer to inform the accused that he had a legal right to insist that he be searched either by a Gazetted Officer or a Magistrate. The Apex Court interpreted Section 50 in the following manner:- 5 “19. Sub-Section(1) of Section 50 provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section(2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Sub-Section (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. 20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorized officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorized officer to do so.” 6. Thereafter the Apex Court after considering the other judgments has held 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 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. 6 32. We also feel that though Section 50 gives an option to the empowered officer to take such persons(suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.” 7. Shri Anup Chitkara, learned counsel for the accused has placed reliance on the averments made in para-32 and submits that no endeavour was made to produce the accused before the nearest Magistrate. He has also relied upon another judgment of the Apex Court in Narcotics Control Bureau vs. Sukh Dev Raj Sodhi (2011) 2 SCC 981 wherein the Apex court held as follows:- “5. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. 8. We are of the view that the contention of Shri Anup Chitkara, learned counsel for the accused, that the prosecution must make an endeavour to produce 7 the accused before the Magistrate is ill-founded. In remote areas it may not be feasible to produce the accused before the Magistrate and it may give an opportunity to the accused to run away. What the Apex Court has held is that an endeavour should be made and obviously this means that this portion is not mandatory and in case the accused is not produced before the Magistrate he can take benefit of the same only if he can show that any prejudice has been caused to him. In the present case the property was re-sealed by the SHO and thereafter produced before the Tehsildar on the next day and the photographs were taken. We find that no prejudice has been caused to the accused. 9. Shri Anup Chitkara, lastly contended that the prosecution has failed to prove that the property remained intact from the time it was seized on 13.2.2002 till it reached the Malkahana on 15.2.2002. He has placed reliance on the judgement of the Apex Court in Ashok Alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 2 SCC 547. In the case before the Supreme Court prior information was received by the police and thereafter search was made on 8.3.2005. The sealed substance was sent to the FSL on 10.3.2005 but was not deposited in the FSL and came back to the police on 12.3.2005. Again the same was sent to the FSL on 14.3.2005. 8 The Apex Court found that from the time of the seizure in the late evening of 8.3.2005 till their deposit on 14.3.2005, it is not clear where the samples were kept or were handled by how many people and in what manner. Therefore, the Apex Court came to the conclusion that there is no explanation where the seized substance was kept. In our opinion this judgment is not at all applicable in the present case. 10. In the case in hand PW-9 the Investigating Officer clearly stated that he handed over the case property to PW-7 ASI Madan Lal. PW-7 has stated that PW-9 had handed over the property to him and he after preparing the site plan went back to the police station and deposited the case property with the SHO(PW-8), who in his statement stated that he received the case property from PW-7 and resealed the same with seal ‘T’. He then deposited the case property and the sample seal in the Malkhana and next day applied to the Tehsildar vide Ext.PW-1/A for having the photographs taken and then the Tehsildar took the photographs. 11. The Incharge of the Malkhana has appeared as PW-5 and has stated that the sample remained intact so long as it remained in his possession. Similar is the statement of PW-6. 9 12. Shri Anup Chitkara has urged that there is no explanation as to whether the sample was intact or not when it was taken to the Tehsildar and who took it to the Tehsildar. This contention cannot be accepted since PW-8 has clearly stated that he had applied to the Tehsildar for taking the photographs of the sample which indicates that it was he who had brought the parcels before the Tehsildar. It is important to note that there is no cross-examination directed to any of these witnesses especially PWs-1, 5 and 6 and even PW-8 has not been cross-examined in this regard. We are, therefore, of the considered view that the prosecution has proved that the samples were properly sealed and were not tampered with at all. 13. In view of the above discussion, the appeal is allowed. The accused is convicted of having committed an offence punishable under Section 20 of the NDPS Act. Now to come up for hearing the accused on the quantum of sentence on 25.11.2011. ( Deepak Gupta ) Judge. November 4, 2011 (Sanjay Karol) (vt) Judge.