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Himachal Pradesh High Court · body

2015 DIGILAW 1930 (HP)

State of Himachal Pradesh v. Ashok Kumar

2015-12-19

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal has been instituted against Judgment dated 7.2.2015 rendered by learned Special Judge, Shimla, Himachal Pradesh in Sessions Trial No. 10-S/7 of 2011, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as 'Act' for convenience sake) has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 21.1.2011 SI Ajay Kumar Bhardwaj alongwith other police officials was present at Civil Supply gas Agency near Bhatta Kuffar Chowk. At about 1.40 pm, he noticed a person wearing grey coloured jacket coming from gas agency side. On seeing the police, he tried to run away. He was nabbed. Accused gave his option to be searched by police in the presence of witnesses vide Ext PW-2/A. Personal search of the accused was carried out. A polythene envelope was found from the right pocket of the grey coloured jacket worn by the accused. It was found to be charas. It weighed 300 grams. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as 11 witnesses to prove its case against the prosecution. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. We have heard the learned counsel for the appellant and also gone through the record carefully. 6. PW-1 HC Salig Ram deposed that on 22.1.2011 at about 2.50 pm, Constable Kanchan Kumar brought special report in FIR No. 15/11. 7. PW-2 Anil Kumar deposed that 2-3 years back, he was sitting in his shop. Police officials came to his shop and requested to accompany them for the purpose of search. He refused to accompany them and after 1 ½ hour police officials came back to his shop and asked him to sign some paper. He signed the same without reading. No proceedings have taken in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He has identified the signatures on Ext. PW-2/A and Ext. PW-2/E. 8. He refused to accompany them and after 1 ½ hour police officials came back to his shop and asked him to sign some paper. He signed the same without reading. No proceedings have taken in his presence. He was declared hostile and cross-examined by the learned Public Prosecutor. He has identified the signatures on Ext. PW-2/A and Ext. PW-2/E. 8. PW-3 Rakesh has testified that he was not associated as independent witnesses nor he has seen any documents. Documents Ext. PW-2/A to Ext. PW-2/D were put to him. He deposed that the same did not bear his signatures. 9. PW-5 MHC Shiv Kumar deposed that on 21.1.2011, Additional SHO Sohan Lal deposited one sealed parcel sealed with seal impression ‘C’ and ‘S’. He has entered the same in Malkhana register No. 19 at Sr. No. 636. He forwarded the case property with NCB form etc. vide RC No. 7/11 through Constable Bhoop Singh to FSL Junga. 10. PW-7 Ajay Bhardwaj deposed that at about 1.40 pm, he noticed accused. He was wearing grey coloured jacket. He tried to run back. He was nabbed. He apprised the accused about his right to be searched before a gazetted officer or a Magistrate or by the police. According to him, accused opted to be searched by the police in the presence of witnesses. Ext. PW- 2/A was prepared. Thereafter, police personnel gave their personal search. Accused was also searched. Contraband was recovered from him. It weighed 300 gms. Charas was put in same polythene envelope. Thereafter, it was put in cloth parcel sealed with seal impression ‘C’, six in number. Contraband was taken into possession vide Ext. PW-2/C. NCB form Ext. PW-7/D was filled at the spot. Case property was produced in the police station. It was resealed by SI Sohan Lal with seal impression ‘S’. 11. PW-8 Prakash Chand deposed that accused was apprised by Investigating Officer of his right to be searched before a gazetted officer or a Magistrate and accused was also given option whether he wanted to be searched by the police. 12. PW-9 Kanchan Kumar also deposed that Investigating Officer has given option to the accused to give search to a Gazetted Officer or a Magistrate, which was his legal right or to the police. Accused gave option to be searched by the police. He has taken Rukka to the Police Station. He also identified the case property. 12. PW-9 Kanchan Kumar also deposed that Investigating Officer has given option to the accused to give search to a Gazetted Officer or a Magistrate, which was his legal right or to the police. Accused gave option to be searched by the police. He has taken Rukka to the Police Station. He also identified the case property. 13. PW -10 Bhoop Singh has taken the case property to FSL Junga. 14. PW-11 Inspector Sohan Lal deposed that the case property was produced before him by Ajay Bhardwaj. He resealed the same and filled up necessary columns of the NCB form. 15. What emerges from the facts enumerated herein above is that accused was nabbed at about 1.40 pm on 21.1.2011. Case of the prosecution has not at all been supported by independent witness PW-2 Anil Kumar and PW-3 Rakesh Thakur. According to PW-7 Ajay Bhardwaj, PW-8 Prakash Chand, PW-9 Kanchan Kumar, Investigating Officer has given option to the accused to be searched before a gazetted officer or a Magistrate or by him. According to Section 50 of the Act, there are only two options available to the accused either to be searched before a gazetted officer or a Magistrate. There is no third option to be searched before a police officer, as has been done in the present case. 16. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their lordships have held as under: “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign. 19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. 20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court’s view is perverse. The appeal is, therefore, dismissed.” 17. Case of the prosecution has not been supported by the independent witnesses. Accordingly, the prosecution has failed to prove its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 18. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.