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2010 DIGILAW 1199 (HP)

State of Himachal Pradesh v. Jasmer Singh

2010-11-02

RAJIV SHARMA, SURJIT SINGH

body2010
JUDGMENT : Surjit Singh, J. State has appealed against the judgment, dated 20th January, 2000, of learned Sessions Judge, Sirmaur at Nahan, whereby respondent Jasmer Singh, who was tried for an offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, has been acquitted. 2. Prosecution's case is that on 2.7.1999, around 9 in the evening, when PW-7 Shri O.P. Yadav, Inspector/Incharge, CIA Staff, Nahan, accompanied by one SI, one HC and one constable, was present at Paonta Sahib, near Government Senior Secondary School (Girls), he saw the respondent occupying the seat meant for passengers on a cycle-rickshaw, which was being paddled by PW-2 Mehfooz Ali. On seeing the police, respondent got unnerved. That aroused the suspicion of PW-7 Inspector O.P. Yadav. He made inquiries with the respondent and felt that the respondent was carrying Charas or some other narcotic drug. So, he informed the respondent that it was intended to search his person and in case he so desired, search could be arranged in the presence of a Magistrate or a Gazetted Officer. Respondent opted for being searched on the spot. Thereafter, his person was searched and a polythene bag, containing 500 grams Charas, was recovered from one of the pockets of the pants, which he was wearing. Two samples, each weighing 100 grams, were separated. The samples and the bulk stuff were made into three separate parcels, which were sealed with a seal that produced the impression of English letter 'S'. 3. Report of search and seizure was prepared and sent to Police Station for formal registration of the case. That report is Ext. PF. FIR, which was registered on the basis of this report, is Ext. PF/1. All the three parcels were produced to PW-5 Dhani Ram, SHO, who affixed his own seal that produced impression of English letter 'M'. One of the two samples was sent to Chemical Examiner by PW-3 MHC Bhim Singh through PW-4 Constable Atam Swarup. Chemical Examiner, vide report Ext. PL, opined that sample was of Charas, as it contained resin to the extent of 26.87%. 4. Respondent was challaned, on completion of investigation and receipt of the report of Chemical Examiner. Learned trial Court charged the respondent with an offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act to which he pleaded not guilty. Prosecution was, therefore, called upon to produce its evidence. 4. Respondent was challaned, on completion of investigation and receipt of the report of Chemical Examiner. Learned trial Court charged the respondent with an offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act to which he pleaded not guilty. Prosecution was, therefore, called upon to produce its evidence. It examined seven witnesses, including one of the two alleged independent witnesses, namely PW-1 Intzar Ahmad. He, however, turned hostile. Respondent denied that Charas was recovered on his personal search. 5. Trial Court acquitted the respondent, holding that there was non-compliance of mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, inasmuch as respondent had not been apprised of his right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments. Another ground of acquittal, as per trial Court is that the alleged independent witness did not support the prosecution version. 6. We have heard learned Senior Additional Advocate General as also learned Counsel, representing the respondent, and gone through the record. 7. The sole independent witness, namely Intazar Ahmad, examined as PW-1, denied that search of the respondent was conducted in his presence and Charas recovered. PW-7 Inspector O.P. Yadav, who conducted search, no doubt stated that Charas was recovered on personal search of the respondent, but the prosecution did not examine any of the other police officials accompanying him, though as per report Ext. PF, which was sent to the Police Station for registration of the case, three police officials were accompanying him. Though it is not the requirement of law that every witness of a fact should be examined, but in a situation like the present one, where out of the two independent witnesses one is examined and he turns hostile and the other is given up with the statement that he has been won over, it is desirable that one of the official witnesses, accompanying the officer, conducting search is examined. This is especially so, when a small quantity of contraband is recovered on personal search and that too in the darkness of the night. 8. This is especially so, when a small quantity of contraband is recovered on personal search and that too in the darkness of the night. 8. As regards the second ground, on which acquittal has been ordered, evidence on record shows that respondent had been apprised that it was intended to search his person and in case he so desired, search could be arranged in the presence of a Magistrate or a Gazetted Officer. Hon'ble Supreme Court in Dehal Singh Vs. State of Himachal Pradesh, AIR 2010 SC 3594 has held that where the person concerned is informed before search of his person that search can be arranged in the presence of a Magistrate or a Gazetted Officer, that tantamounts to apprising the person concerned that he has a right to be searched in the presence of a Magistrate or a Gazetted Officer and, therefore, such would not be a case of non-compliance of mandatory provision of Section 50 of Narcotic Drugs and Psychotropic Substances Act. 9. In view of the above stated position, appeal is dismissed.