IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 108 of 1999 Date of decision: 24.5.2010 State of H.P. Appellant. Versus Bhajan Lal Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. N.K.Thakur, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 22.01.1999 delivered by the Sessions Judge, Chamba Division, Chamba in Sessions Case No. 17 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The prosecution story, in brief, is that on 22.11.1997 a police party headed by PW-8 Budhi Prakash was on checking duty at the Toll Tax Barrier, Banikhet. PW-8 Budhi Prakash alongwith constable 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Manoj Kumar and PW-9 constable Majid Mohammad entered the bus bearing No.HP-48-0994. The accused was sitting in the bus and got perplexed on seeing the police officials. This aroused the suspicion of the police officials who suspected that he may be carrying some contraband substance especially charas and thereafter, gave an option of search to the accused. The accused agreed to be searched by the police officials. On search 1 kg. of contraband was recovered. Two samples of 10 gram each were drawn and these two samples alongwith the bulk charas were separately sealed in three separate packets. The Investigating Officer affixed his seal ‘B’ on these three parcels. A Rukka was sent to the police station on the basis of which F.I.R. was registered. The accused was informed about the grounds of his arrest. Other codal formalities were completed on the spot. Thereafter, the case property was brought to the Police Station where it was handed over to PW-6 Rajinder Sharma, who resealed the same with his seal ‘K’ and then deposited with the MHC PW-7 Rajesh Kumar. The MHC in turn handed over one sample to constable Kamlesh Kumar PW-3, who took it to the Chemical Laboratory at Neemuch alongwith sample seal impression and R.C. Report of the Chemical 3 Examiner Ext.PJ was received whereby it was opined that the sample was that of charas. 3. Admittedly, the contraband was recovered on the personal search of the accused and therefore, Section 50 of the Act is applicable. The contention on behalf of the accused is that there is non compliance of Section 50 of the Act and as such the search is totally illegal. 4. A perusal of the Search Memo Ex.PB shows that the accused was given a choice as to whether he wanted to get himself personally searched before a Magistrate or any Gazetted Officer or by the Investigating Officer. This is what has been stated by the Investigating Officer and other police officials also. It has been urged that the accused was not informed that he had a right to get himself searched before a Magistrate or before a Gazetted Officer. Shri N.K.Thakur, learned counsel for the accused urged that not only must the accused be given the choice but he should also be told that he has a right to get himself searched before a Magistrate or a Gazetted Officer. 5. 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 Gazetted Officer. Having regard to the Miranda 4 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) 7. 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) 5 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. 8. 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. 9. In the present case, the consent memo does not show that the accused was informed that he had a right to be searched before a Magistrate or a Gazetted Officer. No doubt, he was asked as to whether he would be liked to be searched through a Magistrate or a Gazetted Officer or by the Investigating Officer. However, this is totally different from informing him that he has a right to be examined before a Magistrate or Gazetted Officer. The consent of the accused was, therefore, not obtained in accordance with the provisions of the Act. 10. Since the accused was not informed that he had a right to get himself searched before a Magistrate or a Gazetted Officer, the search was not conducted in accordance with law. The personal search being illegal and not in conformity with Section 50, the accused 6 cannot be convicted on the basis of any alleged contraband purported to be recovered in consonance of such an illegal search. Keeping in view the above discussion, we find no merit in the appeal and the same is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge 24th May, 2010. ( Rajiv Sharma) ™ Judge.