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Himachal Pradesh High Court · body

2016 DIGILAW 1296 (HP)

State of H. P. v. Puran Bahadur

2016-07-07

AJAY MOHAN GOEL, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 27.10.2007, rendered by the learned Addl. Sessions Judge, (Fast Track Court), Kangra at Dharamshala, H.P., in Sessions case No. 19-D/VII/07, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted. 2. The case of the prosecution, in a nut shell, is that on the intervening night of 25/26.3.2007, the police personnel were on patrolling in Government vehicle. When they were coming back to Police Station Dharamshala at about 12:30 AM and when they reached near the Post Office and rain shelter they found accused sitting in the rain shelter. Both of them tried to run away. They were apprehended. They were carrying contraband. They disclosed their identity. Accused Puran Bahadur was found in possession of polythene bag which was smelling of charas. They were given notice as to whether they wanted to be searched before the Gazetted Officer or the Magistrate whereby they consented to be searched by the police party. The In-charge Police Party informed Addl. S.P. regarding the apprehending of the accused. The Addl. S.P. reached the spot. Thereafter, the police officials firstly gave their personal search to both the accused. Nothing incriminating was recovered from them. The personal search of the accused was conducted in the presence of Addl. S.P. Accused Puran Bahadur was found possessing polythene bag which was containing charas in the shape of “tikkies”. It weighed 2.750 kgs. Two samples of 25 grams each were taken out. The bulk as well as the samples were packed and sealed in a cloth piece on the spot. Thereafter, the case property was taken to the Police Station. It was deposited in the malkhana. The sample was sent for chemical analysis. Accused Puran Bahadur was charged under Section 20 and accused Bhim Bahadur was charged under Section 29 of the ND & PS Act. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as eleven witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as eleven witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. They also examined one witness in defence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. V.S. Chauhan, Addl. AG has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Ms. Kanta Thakur, Advocate, has supported the judgment of the learned trial Court dated 27.10.2007. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Const. Surjeet Kumar testified that on 26.3.2007 SI Gulzari Lal accompanied by police officials including him were on patrolling duty in a jeep. At 12:30 AM, when they were at Post Office Chowk near rain shelter, the accused were standing near the rain shelter. On seeing the police party they tried to run away. They were apprehended. A polythene bag of white colour was found with the accused Puran Bahadur. It contained charas. Accused consented to be searched before the gazetted officer. Addl. S.P. Patial was called and thereafter the search of the accused was conducted. Charas in the shape of “tikkies” was recovered in the polythene bag. It weighed 2.750 kgs. Two samples of 25 grams each were drawn. The samples and the bulk charas was packed and sealed with seal “A” at four places each. The impression of seal was taken separately. The seal after use was handed over to Vinod Kumar. NCB form in triplicate was filled in at the spot. In his cross-examination, he admitted that near the rain shelter there was Complaint Office of the HPSEB. None was visible at that time in the Complaint Office. There was Park Café nearby. 7. PW-4 Const. Madan Lal, deposed that MHC Pawan Kumar handed over to him one parcel sealed along with a form vide RC No. 59/21 on 15.4.2007, which he deposited at FSL Junga and handed over the receipt to MHC. 8. PW-5 HC Mohinder Singh deposed that on receipt of rukka, he recorded FIR on the instructions of ASI Jatinder Kumar. On 26.3.2007, SI Gulzari Lal deposited three parcels. 8. PW-5 HC Mohinder Singh deposed that on receipt of rukka, he recorded FIR on the instructions of ASI Jatinder Kumar. On 26.3.2007, SI Gulzari Lal deposited three parcels. He entered the same in register No. 19. 9. PW-6 HC Pawan Kumar deposed that on 3.4.2007, he has taken charge of MHC from HC Mohinder Singh. On 15.4.2007 he sent sample along with NCB form through Const. Madan Lal to FSL Junga vide RC No. 59/21. The receipt was handed over to him after depositing the same at FSL Junga. 10. PW-7 ASI Vinod Kumar deposed the manner in which the accused were apprehended. They were apprised of their right to be searched before the gazetted officer. The accused told that they will get searched before a gazetted officer. Addl. S.P. Santosh Patial was informed telephonically. He reached the spot. The search was carried out whereby charas was recovered. It weighed 2.750 kgs. Sealing proceedings were completed on the spot. In his cross-examination, he denied the suggestion that bag was found in the rack of the bus. 11. PW-8 Addl. S.P. Santosh Patial deposed that he proceeded to the spot. Accused were present on the spot. The accused were given option if they wanted to be searched before him or before any other gazetted officer. They consented to be searched before him. Their written consent was taken. The polythene was searched. It contained charas as noticed hereinabove. 12. PW-11 SI Gulzari Lal deposed that he was on patrolling duty on 26.3.2007. When they reached near rain shelter, two persons were found sitting inside the rain shelter. They tried to run away. They were apprehended. Addl. S.P. was informed. He reached the spot. The polythene bag Ext. P-5 was recovered from accused Puran Bahadur. All the codal formalities were completed on the spot. FIR Ext. PW-5/A was registered. He denied the suggestion in his cross-examination that no recovery from the accused was effected. He admitted that in Ext. PW- 11/B, he has not shown the electric pole. 13. The accused were apprehended near the rain shelter. Accused Puran Bahadur was carrying a polythene bag. It contained charas. All the codal formalities were completed on the spot. The case property was deposited with PW-5 HC Mohinder Singh. The samples were sent to FSL Junga by MHC Pawan Kumar on 15.4.2007 through Const. Madan Lal vide RC No. 59/21. 13. The accused were apprehended near the rain shelter. Accused Puran Bahadur was carrying a polythene bag. It contained charas. All the codal formalities were completed on the spot. The case property was deposited with PW-5 HC Mohinder Singh. The samples were sent to FSL Junga by MHC Pawan Kumar on 15.4.2007 through Const. Madan Lal vide RC No. 59/21. It was found to be charas as per report Ext. PW-10/A. 14. In the instant case, since the charas was recovered from the polythene bag, the personal search of the accused was not required to be carried out. However, the fact of the matter is that the personal search of both the accused was carried out as per consent memo Ext. PW-11/A. We have gone through consent memo Ext. PW-11/A. The accused were required to be asked independently whether they wanted to be searched before the gazetted officer or before the Magistrate. Both the accused were asked in the present case by the same consent memo Ext. PW-11/A as to whether they wanted to be searched before the police officer or gazetted officer or Magistrate. According to Section 50 of the ND & PS Act, there are only two officers i.e. nearest Gazetted Officer or nearest Magistrate. There is no third option mentioned in Section 50 of the ND & PS Act. 15. 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. 17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. 18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 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.” 16. The non-compliance of the mandatory procedure under Section 50 of the N.D & P.S. Act, in the present case, has vitiated the entire proceedings initiated against the accused. 17. The case property was also not produced before PW-10 SHO R.P. Jaswal. PW-10 SHO R.P. Jaswal has not deposed that he was on leave on that date when the accused were apprehended and the contraband was recovered. It was only if the SHO himself was the I.O., he was not required to fill up column Nos. 9 to 11 of the NCB form. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt and there is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 27.10.2007. 18. Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are discharged.