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Himachal Pradesh High Court · body

2015 DIGILAW 1931 (HP)

State of Himachal Pradesh v. Ronu Chauhan

2015-12-19

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal has been instituted against Judgment dated 27.4.2015 rendered by learned Special Judge-II, Solan, District Solan, Himachal Pradesh in Sessions Trial No. 3-NL/7 of 2014, 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 23.9.2013, at about 12.30 pm, HC Amit Thakur (PW-10), alongwith HHC Kishore (PW-1), C. Onkar Singh (PW-2) and C. Teja Singh (PW-5) proceeded on patrolling, traffic checking and detection of excise cases towards Barotiwala. At about 5.10 pm, when police officials were coming from Jharmajri and they were present at Lakkar Depot, accused came on the spot from SSF Company. He tried to runaway. He was nabbed. He was carrying a bag in his right hand. One independent witness namely Chain Singh was associated. PW-10 Amit Thakur apprised the accused of his right to have personal search either in the presence of a Magistrate or a Gazetted Officer. The accused consented to be searched by the police vide memo Ext. PW-1/A. HC Amit Thakur carried out the search of the bag. Bag contained stick and ball shaped brown coloured substance. It was found to be Charas. It weighed 600 gms. The polythene bag containing Charas was put back in the carry bag and it was put in a cloth parcel by putting three seals of ‘V’. NCB form Ext. PW-10/A in triplicate was prepared by PW-10 and seal ‘V’ was embossed on it. Sample seal Ext. PW-1/B was taken separately. HC Amit Thakur prepared Rukka Ext. PW-10/B and sent it to the Police Station through C. Onkar Singh for registration of FIR. FIR Ext. PW-9/A was registered. Investigating Officer PW-10 Amit Thakur brought the case property alongwith accused to the Police Station. Case property was handed over to the ASI Manmohan Singh PW-12. He resealed the same with two seals of ‘Y’ and seal ‘Y’ was taken on NCB form. He filled up relevant columns and issued resealing certificate Ext. PW-12/B. He handed over sample seal Ext. PW- 12/C and case property to MHC Randhir Singh, who entered the same in Malkhana Register at Sr. No. 535. Abstract of Malkhana Register is Ext. He resealed the same with two seals of ‘Y’ and seal ‘Y’ was taken on NCB form. He filled up relevant columns and issued resealing certificate Ext. PW-12/B. He handed over sample seal Ext. PW- 12/C and case property to MHC Randhir Singh, who entered the same in Malkhana Register at Sr. No. 535. Abstract of Malkhana Register is Ext. PW-3/A. Special report was also prepared and case property was sent to the FSL Junga. Through HHC Dalel Singh PW-4 vide RC No. 54/13-14, Ext. PW-3/B. Investigation was completed and Challan was put up in the Court after completing all codal formalities.. 3. Prosecution has examined as many as 13 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. Ramesh Thakur, Assistant 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. Case of the prosecution, precisely, is that at 5.10 pm, accused was noticed coming from SSF company. He tried to run away. He was nabbed. His consent was taken vide Ext. PW- 1/A. Thereafter search of the bag was conducted. Bag contained Charas. Search, seizure and sealing proceedings were completed at the spot. Rukka was sent to the Police Station. Case property was handed over to ASI Manmohan Singh PW-12. It was entered in the Malkhana Register at Sr. No. 535. Case property was sent to the FSL Junga. Consent memo is Ext. PW- 1/A. 7. According to PW-2 HC Onkar Singh, Investigating Officer PW-10 HC Amit Thakur asked the accused whether he wanted to give personal search to the police or not. Accused consented to be searched by the police officials. 8. PW-1 HC Kishore Kumar did not know who was the driver of the vehicle, in which they went on patrolling duty. He did not remember the number of the vehicle. There is another interesting feature in this case. PW-10 Amit Thakur deposed that the statement of Teja Singh D-3 was recorded by Teja Singh himself and statement of Onkar Singh Mark D-4 was recorded by Onkar Singh himself. It shows that the police has not carried out proper investigation of the case. According to Ext. There is another interesting feature in this case. PW-10 Amit Thakur deposed that the statement of Teja Singh D-3 was recorded by Teja Singh himself and statement of Onkar Singh Mark D-4 was recorded by Onkar Singh himself. It shows that the police has not carried out proper investigation of the case. According to Ext. PW-10/A, time and place of seizure of case property is 23.9.2013 at 5.45 pm. However, according to PW-5, Teja Singh he has gone to bring weighing scale at about 5.30 pm. According to the independent witness PW-13 Chain Singh, he was sitting in his shop at Lakkar Depot. He was declared hostile. He did not support the case of the prosecution. He has denied that personal search of accused was carried out. According to him, bag was taken to the Police Station. There it was opened. Charas was found. Thus, the statements of PW-1 Kishore Kumar, PW-2 Onkar Singh, PW-5 Teja Singh and PW- 10 Amit Thakur have not been corroborated by PW-13 Chain Singh. 9. PW-5 Teja Singh also deposed that the Investigating Officer apprised the accused that he can have his search in the presence of some officer or by the police officer. Accused consented to be searched by the police. Trial Court, after perusal of consent memo Ext. PW-1/A noticed that accused was asked whether he wanted to give personal search and search of bag at the spot or at Nalagarh before a Magistrate or a Gazetted police Officer or to be done by HC Amit Thakur at the spot. It is settled law by now that there are only two options which are required to be given to the accused to be personally searched either before a Magistrate or a Gazetted Officer. In the present case, as far as Ext. PW-1/A is concerned, IO has given him three options. It is contrary to law. Thus there is violation of Section 50 of the Act. We have verified from Ext. PW-1/A of the record produced by the learned Assistant Advocate General to see whether Section 50 of the Act has been complied or not. 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. 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. Section 50 of the Act is mandatory and its non-compliance has vitiated the entire case of the prosecution. 10. 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. 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. 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. 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.” 11. 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. 12. 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.” 11. 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. 12. There is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.