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Himachal Pradesh High Court · body

2000 DIGILAW 85 (HP)

STATE OF HIMACHAL PRADESH v. BHUP SINGH

2000-04-18

K.C.SOOD, SURINDER SARUP

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JUDGMENT Kuldip Chand Sood, J.—The present petition under Section 378(3) of the Code of Criminal Procedure, for the grant of leave to appeal, is directed against the judgment of acquittal dated 20.4.1998 passed by the learned Special Judge (Sessions Judge), Kinnaur Division at Rampur in case No. 1 of 1998 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act). 2. We have heard Mr. R.M. Bisht, learned Assistant Advocate General at length and gone through the record of this case. 3. The relevant facts necessary for the disposal of this petition may be noticed. 4. On 5.10.1997 Inspector Prabhu Dutt (PW-7) S.H.O. of Police Station, Jhakri was on routine patrol alongwith other Officers. At about 4 p.m., he received information to the effect that the accused was selling Charas. On the receipt of this information, Inspector Prabhu Dutt contacted Dy. S.P. Bhajan Singh Negi, (PW-3) on telephone and informed him about the information received by him. Dy. S.P. Bhajan Singh Negi came to the spot. Police party saw accused Bhup Singh (respondent herein) coming from the side of Rehri Market. He was over-powered by Inspector Prabhu Dutt. Karan Singh (PW-1) and one Taku Ram were joined as witnesses. On search of the accused, Charas weighing 150 grams was recovered from the bag which was carried by the accused at the relevant time. Out of this Charas, two samples of ten grams each were drawn separately. Remaining samples of Charas were sealed. Formal F.I.R. was registered. Accused was arrested and informed about his arrest. Learned trial Judge by his impugned judgment acquitted the accused for non-compliance of the mandatory provisions of Section 50 of the Act. 5. This is admittedly a case where police had prior information that the accused was carrying Charas. Therefore, it was necessary for the Dy. S.P. Bhajan Singh Negi (PW-3) to have complied with the provisions of Section 50 of the Act. It is the evidence of Investigating Officer, Dy. S.P. Bhajan Singh Negi (PW-3) that the accused was found coming from the side of Rehri Market towards National Highway. He over-powered him in the presence of other witnesses. He then informed the accused about his intention to search him. A writing was also prepared to this effect and the accused gave his consent in writing. S.P. Bhajan Singh Negi (PW-3) that the accused was found coming from the side of Rehri Market towards National Highway. He over-powered him in the presence of other witnesses. He then informed the accused about his intention to search him. A writing was also prepared to this effect and the accused gave his consent in writing. In his own words : "......the accused person present in Court was found coming from the side of Rehri Market towards the National Highway. I over powered him. Other PWs were already present. I asked the accused person that I want to take his search. Writing was prepared to this effect and, in turn, the accused gave his consent in writing....." He goes on to state : "......I disclosed my identity to the accused person and specifically asked him whether he wants to be searched by me. He answered in the positive and thereafter I conducted the search after the preparation of document Ext. PA...." 6. Apparent as it is, accused was not informed of his right to be searched, if he so wanted before a Gazetted Officer or a Magistrate. He was simply informed, according to Dy. S.P. Bhajan Singh Negi, the Investigating Officer, that he (Dy. S.P.) wanted to take his search and that whether he wanted to be searched by him. He was not given an option to be searched in the presence of a Gazetted Officer or a Magistrate. Thus, there is total non-compliance with the provisions of Section 50 of the Act. 7. In State of Punjab v. Balbir Singh, 1994 Criminal Law Journal 3702 SC, their Lordships in para 17 of the judgment observed : "17. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43, shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until he can produce him before such gazetted officer or the Magistrate. After such production, the gazetted officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. To avoid humiliation to females, it is also provided that no female shall be searched by anyone except a female. The words "if the person to be searched so desires" are important. One of the submissions Is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so required, he would be produced before a gazetted officer or a Magistrate and thereafter the search would be conducted. In the context in which this right has been conferred it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right." (Emphasis supplied). 8. Learned trial Judge has observed that careful reading of consent memo, Ext. PA shows that the accused was asked to append a note in his own hand to the effect that he would like to be searched by the Dy. S.P. and not by anyone else. The possibility of this note having been procured at a later stage, observes the learned trial Judge, cannot be ruled out as the consent memo Ext. PA does not bear the signatures of the Dy. S.P. though recovery memo Ext. PB is signed both by the S.H.O. and Dy S.P. Bhajan Singh Negi. It may be noticed here that it is the evidence of Dy. S.P. Bhajan Singh Negi (PW-3) that the consent letter Ext. PA was prepared by him. In his own words : “Thereafter I conducted the search after the preparation of the document Ext. PA." 9. Now, had this consent letter, Ext. PA been in existence at the time of the search of the accused, it would have contained the signatures of Dy S.P. Bhajan Singh Negi. 10. It was mandatory on the part of the Investigating Officer to have informed the accused of his right to be searched in the presence of a gazetted officer or a Magistrate. The Apex Court in Saiyad Mohd. Saiyad Umar v. State of Gujarat, 1995 Crl. Law Journal -2662, held that testimony of the officer conducting the search must show that he had informed the person to be searched about his right to be searched in the presence of a gazetted officer or a Magistrate and that the person had not chosen to demand his search in the presence of a gazetted officer or Magistrate and if there is no evidence to this effect, then the Court must assume that the person to be searched was not informed of the protection of law given to him and must find that the possession of the illicit articles under NDPS Act was not established. Their Lordships in paras 6 and 7 of the judgment observed : "6. Their Lordships in paras 6 and 7 of the judgment observed : "6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also the fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the Court empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singhs case (1994 AIR SCW 1802) that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. 7. Having regard to the object for which the provisions of Section 50, have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (e) of the Indian Evidence Act, 1872. By reason of Section 114, a Court "may presume the existence of any fact which it thinks likely to have happened, regard being had to be common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case". It may presume "(e) that judicial and official acts have been regularly performed." There is no room for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the Court. The fact of seizure thereof after a search has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the Officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established.” (Emphasis supplied). 11. We are satisfied that there is total non-compliance with the mandatory provisions of Section 50 of the Act. We do not find any ground to interfere with the order of acquittal. In the circumstances, the petition for leave to appeal is rejected. Order accordingly. Petition rejected.