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2010 DIGILAW 530 (HP)

STATE OF HIMACHAL PRADESH v. BHAG SINGH

2010-03-18

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT Deepak Gupta, J.(Oral)-This appeal by the State is directed against the judgment dated 20.11.1995 passed by the learned Special Judge, Solan, H.P. in Case No. 9-NL/7 of 1993 acquitting the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution story in brief is that on 8.2.1993 Sh. Ramna Ram (PW-11) the then S.H.O. Police Station, Nalagarh was on a routine patrol duty accompanied by ASI – Rikhi Ram, HC – Mangat Ram, Constables Som Raj and Kishan Singh. Independent witnesses Lekh Raj (PW-6) and Ramji Dass (PW-10) were also with him. They were near the Court building. They saw the accused near the gate of the compound of the Court building. On seeing the police party the accused tried to run away but was overpowered. 3. The police personnel suspected that the accused may have some contraband in his possession and asked him whether he was prepared to be searched by the police party or before a Gazetted Officer or a Magistrate vide memo Ext. PF. The accused agreed to be searched by the police party itself. His personal search was conducted by SI – Ramna Ram (PW-11) in the presence of witnesses and 400 grams of opium was found kept by the accused in the right pocket of his pants in two polythene packets. Two samples of 25 grams each were separated from the opium and sealed in two different parcels with seal – ‘R’. The bulk opium was also sealed with the same seal. The three parcels were taken into possession vide memo Ext. PE and the accused was arrested. After completing the codal formalities the case property was deposited with MHC – Hukam Chand (PW-3) who sent one of the sample parcels to F.S.L. Bharari through Constable Som Raj (PW-7) on 26.2.1993. The chemical report Ext. PN was received to the effect that the sample was that of opium. Thereafter challan was filed in the Court. After trial the accused has been acquitted. Hence the present appeal. 4. Admittedly this is a case of personal search of the accused. Therefore the provisions of Section 50 of the Act are attracted in the present case. PN was received to the effect that the sample was that of opium. Thereafter challan was filed in the Court. After trial the accused has been acquitted. Hence the present appeal. 4. Admittedly this is a case of personal search of the accused. Therefore the provisions of Section 50 of the Act are attracted in the present case. Even if we believe the statement of PW-11 and all that is stated in the consent memo Ext.- PF it is apparent that the accused was only given an option of being searched before a Magistrate or a Gazetted Officer but he was not informed that he had a right to be 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 a Gazetted Officer. Having regard to the Miranda 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. 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) 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 JUDGMENTs 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. This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if 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 the search is not in conformity with Section 50 of the Act. 10. In view of the law laid down, the accused must be informed about his right also, and since this was admittedly not done, there is violation of Section 50 of the Act. 11. On this ground alone the accused is entitled to acquittal. 12. There are other lacunae also in the prosecution case. The recovery was allegedly made on 8.2.1993. According to the prosecution the case property was deposited with MHC-Hukam Chand (PW-3). Obviously this should have been done on 8.2.1993 itself. The samples were sent to the chemical examiner only on 26.2.1993 i.e. after 18 days. PW-3 does not state that he deposited the case property in the Maalkhana. All he states is that the case property was deposited with him. He could not have kept the case property with him for 18 days. PW-3 has also not resealed the case property as is required under the law. No record of the Maalkhana register has been produced. It is also not clear whether the sample seal impression was sent. 13. Even on facts there are material contradictions in the statements of the witnesses. PW-3 has also not resealed the case property as is required under the law. No record of the Maalkhana register has been produced. It is also not clear whether the sample seal impression was sent. 13. Even on facts there are material contradictions in the statements of the witnesses. The witnesses state that they reached later whereas according to the Investigating Officer they were already present with him. If the police was only on a routine patrol duty then why would independent persons have joined the police party without any reason. 14. In view of the above discussions we find that there is no merit in the present appeal and the same is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged.