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Himachal Pradesh High Court · body

2014 DIGILAW 1944 (HP)

Sagar Chaudhary v. State of H. P.

2014-12-19

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 11.7.2011, rendered by the learned Special Judge, Kullu, H.P. in Sessions Trial No. 31 of 2010, whereby the appellant-accused (hereinafter referred to as accused) who was charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of rupees one lac and in default of payment of fine he was ordered to suffer further imprisonment for six months. 2. The case of the prosecution, in a nut shell, is that on 29.3.2010, the police party headed by PW-9 Insp. Prem Singh comprising of HC Narender, PW-7 Const. Rakesh Lal and PW-6 S.I. Rajinder Kumar were on patrol duty for detection of crime relating to forests and narcotics. The police party was present at Hathithan near Bhuntar at about 5:15 AM. They noticed the accused coming from Manikaran side. The accused on seeing the police tried to escape. He was nabbed. The name and particulars of the accused were ascertained. The Investigating Officer had suspicion about possessing of some contraband by the accused. He expressed his intention to conduct search of the accused. The accused was apprised about his right to be searched either before the police on the spot, or Magistrate or Gazetted Officer. The accused consented to be searched by the police vide memo Ext. PW-6/A. Thereafter, the I.O. gave his personal search vide memo Ext. PW-6/B. Nothing incriminating was found. The I.O conducted the search of the accused and the accused was found bearing vest underneath shirt and was found possessing black coloured substance in the shape of rectangle and in the form of chapatis. After removing the cello tape, it was found to be charas. It weighed 7 kgs. The I.O. sealed the contraband with 10 seals of impression “B”. NCB-1 form in triplicate was filled in. The impression of seal “B” was drawn on Ext. PW-6/D. The seal was handed over to S.I. Rajinder Kumar. The case property was taken into possession vide memo Ext. PW-6/C. Rukka Ext. PW-9/A was prepared and sent to the Police Station Kullu through Const. Rakesh Lal. SHO registered the FIR vide Ext. PW-9/D. The I.O. prepared the site plan Ext. The impression of seal “B” was drawn on Ext. PW-6/D. The seal was handed over to S.I. Rajinder Kumar. The case property was taken into possession vide memo Ext. PW-6/C. Rukka Ext. PW-9/A was prepared and sent to the Police Station Kullu through Const. Rakesh Lal. SHO registered the FIR vide Ext. PW-9/D. The I.O. prepared the site plan Ext. PW-9/B. The I.O. also prepared special report Ext PW-1/A. It was sent to Dy. S.P., Police Station SV and ACB, Kullu. The case property alongwith the impression of seal “B”, NCB forms, copies of FIR and seizure memo were sent to FSL, Junga vide RC Ext. PW-3/A through PW-4 Const. Paras Ram. He deposited the case property alongwith requisite documents at FSL, Junga. Report of the FSL is Ext. PW-8/A. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 9 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C. The accused has denied having committed any offence. According to him, nothing was recovered from him and he was falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. 4. Mr. B.C.Verma, Advocate, appearing on behalf of the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. P.M.Negi, Dy. AG, has supported the judgment of the learned trial Court dated 11.7.2011. 5. We have heard learned counsel for both the sides and gone through the records of the case carefully. 6. PW-1, SI Kanshi Ram has proved the copy of special report vide Ext. PW-1/A. 7. PW-2 Const. Surender Kumar, is a formal witness. 8. PW-3 HC Hans Raj, deposed that on 29.3.2010, he was working as MHC, Police Station SV and ACB, Kullu. Inspector Prem Singh deposited one sealed parcel which was sealed with ten seals of seal “B” alongwith NCB form in triplicate and specimen seal impression of seal “B” with him. He entered all these articles in the relevant register at Sr. No. 23. On 30.3.2011 he handed over the case property to HHC Paras Ram with a direction to deposit the same at FSL, Junga. The case property was given to HHC Paras Ram vide RC No. 35/2010 vide Ext. PW-3/A. In his cross-examination he admitted that in respect of the entries at Sr. No. 23. On 30.3.2011 he handed over the case property to HHC Paras Ram with a direction to deposit the same at FSL, Junga. The case property was given to HHC Paras Ram vide RC No. 35/2010 vide Ext. PW-3/A. In his cross-examination he admitted that in respect of the entries at Sr. No. 23, in register No. 19, there was a cutting. Voluntarily deposed that the cuttings were initialed by him. 9. PW-4 Const. Paras Ram deposed that on 30.3.2010, parcel Ext. P-1 was given to him by MHC Hans Raj (PW-3) alongwith NCB form in triplicate, sample seal and other relevant documents. He deposited the case property at FSL Junga vide receipt Ext. PW-3/B. 10. PW-5 DSP Amar Nath is a formal witness. 11. PW-6 SI Rajinder Kumar testified that on 29.3.2010, he along with the police party started from Kullu in an official vehicle at about 3:30 AM. At about 4:15 AM, the police party reached at a place just ahead to Jia bridge. The place was secluded. The police had put a barrier/Naka. At about 5:15 AM, the police party noticed a person coming from the Manikaran side. On seeing the police party, the said person tried to flee away. His activities raised a suspicion. He alongwith HC Narender Kumar nabbed that person. The I.O. Inspector Prem Singh inquired about the name and address of the said person. The accused was apprised of his right to be searched either before the police or some Gazetted Officer or some competent Magistrate. The accused opted to be searched by the police present on the spot. The I.O. has also given his personal search. The I.O. searched the accused after frisking and found something concealed under the clothes of the accused. The I.O. found that the accused has kept something concealed under the dupatta type vest cloth. The clothes were removed. It was found containing charas. The charas weighed 7 kgs. The recovered charas was put alongwith the clothes and cello tape in cloth parcel, which was sealed with ten seals of impression “B”. The case property was taken into possession vide seizure memo Ext. PW-6/C. NCB forms in triplicate were also filled in and handed over to him by the I.O. In his cross-examination, he admitted that they have checked 3-4 vehicles before arrival of the accused. The accused noticed them from a distance of about 15 feet. The case property was taken into possession vide seizure memo Ext. PW-6/C. NCB forms in triplicate were also filled in and handed over to him by the I.O. In his cross-examination, he admitted that they have checked 3-4 vehicles before arrival of the accused. The accused noticed them from a distance of about 15 feet. The accused could only run for about 4-5 paces when they nabbed him. The distance between Bhunter bridge and Jia bridge is approximately five hundred meters. He also admitted that there are number of hotels and dhabas situated in and around Jia bridge. He also admitted that in and around Jia bridge, there is abadi (habitation). Voluntarily stated that the place where the police had put Naka was secluded one. 12. PW-7 Const. Rakesh Lal also deposed the manner in which the accused was apprehended, the search and sampling process was completed on the spot. He also admitted in his cross-examination that from Bhunter bridge up to Jia bridge, there were hotels, restaurants and shops on both sides of the road. Voluntarily deposed that the place where the police party had laid barrier/naka was secluded one. The place where the police had laid barrier/naka was one kilometer from Jia bridge towards Manikaran side. 13. PW-8 Dr. Kapil Sharma, has proved the FSL report Ext. PW-8/A. 14. PW-9 Insp. Prem Singh deposed the manner in which the accused was apprehended at 5:15 AM. He apprised the accused about the suspicion and also apprised that the police wants to search him and it was his right to give his search to the police present on the spot or to any Magistrate or to any Gazetted Officer. The accused consented to be personally searched by the police officer. The option/consent memo was prepared vide Ext. PW-6/A. The search and sampling process was completed on the spot. The Rukka was prepared vide memo Ext. PW-9/A. It was sent to the Police Station SV and ACB Kullu through Const. Rakesh Lal. He prepared the spot map Ext. PW-9/B. He also prepared the special report Ext. PW-1/A. In his cross-examination, he also admitted that there was habitation near Bhunter bridge. There were hotels and other houses on both sides of the road. The place where the barrier/naka was put up was just behind the village Hathithan. Rakesh Lal. He prepared the spot map Ext. PW-9/B. He also prepared the special report Ext. PW-1/A. In his cross-examination, he also admitted that there was habitation near Bhunter bridge. There were hotels and other houses on both sides of the road. The place where the barrier/naka was put up was just behind the village Hathithan. He also admitted that the road on which they had laid the Naka remains busy and vehicular traffic plies on the same. According to him, only two vehicles passed through the spot. 15. The case of the prosecution, precisely, is that the accused was apprehended on 29.3.2010. Charas was recovered from the person of the accused. It weighed 7 kgs. According to PW-6 Rajinder Kumar, the option was given to the accused regarding his search either before the police, some Gazetted Officer or some competent Magistrate. PW-7 Const. Rakesh Lal also deposed that the I.O. had apprised the accused about his legal right to opt regarding his search and accused has consented to be searched by the Police Officer. PW-9 Insp. Prem Singh also deposed that he apprised the accused about the suspicion and also apprised that the police wanted to search him and it was his right to give his search to the police present on the spot or to any Magistrate or to any Gazetted Officer. 16. The requirement of Section 50 of the Act is that if the contraband is recovered from the person, the accused has to be given an option either to be searched before the nearest Gazetted Officer or the nearest Magistrate. However, as per Ext. PW-6/A consent memo, the option which was given to the accused was to be searched before the Magistrate or Gazetted Officer or the I.O. The consent memo Ext. PW-6/A is against the letter and spirit of Section 50 of the ND & PS Act. The option was to be restricted only to the Gazetted Officer or the Magistrate and not to the Police Officer concerned. Thus, the entire trial is vitiated for non-compliance with mandatory provisions of Section 50 of the Act. Moreover, we have also seen in the present case that the accused was apprehended on 29.3.2010 and the area where the accused was apprehended, there were number of restaurants, hotels, shops and houses and despite that no independent witness was associated during the investigation. 17. Moreover, we have also seen in the present case that the accused was apprehended on 29.3.2010 and the area where the accused was apprehended, there were number of restaurants, hotels, shops and houses and despite that no independent witness was associated during the investigation. 17. Their lordships of the Hon’ble Supreme Court in the case of Man Bahadur vrs. State of Himachal Pradesh, reported in (2008) 16 SCC 398 , have held that when the I.O. only giving option to appellant to be searched by the I.O. himself or in presence of Magistrate or Gazetted Officer, Section 50 was not substantially complied with. Their lordships have held as under : “(5) In this case it is accepted at the Bar that the search memo or any other document do not show that the appellant was made aware of his right to be searched before a gazetted officer or a Magistrate. (6) From the deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had merely given an option to the appellant to be searched either by himself or in presence of a Magistrate or a gazetted Officer. (7) No evidence has been adduced to show that the appellant was communicated of his right either to be searched in presence of a Magistrate or a gazetted officer on the one hand and by an empowered officer on the other. (8) In the instant case, there has been even no substantial compliance of Section 50 of the N.D.P.S. Act. (9) For the reasons aforementioned, the impugned judgment of conviction and sentence cannot be upheld. It is set aside accordingly. The appeal is allowed.” 18. Their lordships of the Hon’ble Supreme Court in the case of Ashok Kumar Sharma vrs. State of Rajasthan, reported in (2013) 26 SCC 67, have held that the empowered officer is legally obliged to inform suspect/accused of his right under Section 50 to be searched before a Gazetted Officer or a Magistrate and it is only if suspect/accused does not choose to exercise his said right, can empowered officer conduct search of person of suspect/accused himself. Their lordships have further held that Section 50 of the Act is mandatory and non-compliance with said mandatory procedure vitiates entire proceedings initiated against the accused and entitles him to acquittal. 19. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Their lordships have further held that Section 50 of the Act is mandatory and non-compliance with said mandatory procedure vitiates entire proceedings initiated against the accused and entitles him to acquittal. 19. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 11.7.2011, rendered by the Special Judge, Kullu, H.P., in Sessions Trial No. 31 of 2010, is set aside. Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 20. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.