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2017 DIGILAW 1003 (HP)

Anil Kumar v. State of Himachal Pradesh

2017-08-31

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Special Judge (III), Mandi in Trial No. 24/15/2011, dated 21.07.2016, vide which, the appellant stood convicted by the learned trial Court for commission offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and was sentenced to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs. 70,000/- and in default of payment of fine to further undergo simple imprisonment for 2 years. 2. The case of the prosecution was that on 23.09.2010, ASI Gurdyal Singh and other police officials were on patrolling duty and were on their way from Ghatasani to Barot, when at around 4:00 p.m. they saw the accused Anil Kumar coming from Ghatasani side near Fuengalu. When the accused saw the police, he stopped and became nervous and tried to run away from the spot. In re-action to the said act of the accused, Investigating Officer stopped the vehicle and apprehended the accused. Something was kept by the accused on his stomach. As the place where the accused was apprehended, was an isolated place, therefore, no independent witness was available. In these circumstances, the inquiry was conducted by the Investigating Officer in the presence of police officials, who were accompanying him. On inquiry, accused disclosed his name as Anil Kumar. His consent was obtained for his personal search and he stated he wanted to be searched by the police party. Police party also gave its search to the accused. The Investigating Officer conducted the search of the accused and in the course of search, the accused was found to be in possession of one small carry bag, which was kept by him tied to his stomach and from inside the carry bag, black coloured sticks type articles were recovered, which when smelled, were found to be charas and when weighed, was found to be 500 grams. The charas so recovered was taken into possession and sealed at the spot with seal “A” at five places. NCB form in triplicate was filled up. Seal after its use was handed over to Hari Singh. Charas as well as NCB form and the seal were taken into possession by way of a seizure memo and signatures of the accompanying officials were obtained on the same. NCB form in triplicate was filled up. Seal after its use was handed over to Hari Singh. Charas as well as NCB form and the seal were taken into possession by way of a seizure memo and signatures of the accompanying officials were obtained on the same. Ruqua was prepared and sent to Police Station Padhar for the purpose of registration of FIR through Constable Ashwani Kumar. Spot map was prepared, photographs were taken and the statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. In custody, the accused disclosed that he had purchased the said charas for an amount of Rs. 11,000/- at Fuen Galu from one Kaltu for the purpose of sale. The case property so seized was deposited at the Police Station for the purpose of re-sealing to Station House Officer. In custody, the accused had shown the place at Fuen Galu where he had purchased the said charas from Kaltu Ram. Kaltu Ram was apprehended by the police on 25.11.2010, who in the course of investigation, deposed that he had sold the charas in issue to accused on 23.09.2010 for an amount of Rs. 11,000/-. 3. After completion of investigation, challan was filed in the Court and as a prima-facie case was found against both the accused, they were charge-sheeted for the commission of offence punishable under Sections 20 and 29 of the ND & PS Act, to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution, in all, examined seven witnesses. 5. Learned trial Court vide its judgment dated 21.07.2016, while acquitting accused Kaltu Ram for commission of offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, convicted the present appellant for having committed an offence under Section 20 of the said Act. While holding the appellant to be guilty, it was held by the learned trial Court that recovery in question stood effected at an isolated and secluded place, therefore, there was no legal requirement of joining any independent or non-official witnesses at the time when the search of the accused was conducted and the alleged bag was recovered from the stomach of the accused. Learned trial Court held that record demonstrated that the place where the accused was apprehended, was in fact an isolated place and there was no house etc. Learned trial Court held that record demonstrated that the place where the accused was apprehended, was in fact an isolated place and there was no house etc. adjacent to the said place. Learned trial Court also held that it was well settled law that statements of the official witnesses cannot be rejected simply because they happened to be police officials unless it is shown that said police officials had some hostility or animosity towards the accused. Learned trial Court also held that the recovery of charas from the accused stood proved on record by the testimonies of PW-4 and PW-7 and none of these witnesses had any enmity or hostility against the accused. It was further held by the learned trial Court that the contradictions and inconsistencies in the statements of police witnesses, as were pointed out by the learned defence counsel were trivial in nature and did not go to the root of the case. It was also held by the learned trial Court that the version put forth by the defence that accused was travelling in a Maruti car after taking lift from one Principal of Government Senior Secondary School, Barot and the police had stopped the vehicle and the alleged charas was recovered from the purse of one Neelu and he was in fact falsely implicated in the case, being resident of other District, whereas the Principal in issue was related to one of the member of the raiding party, namely, Ashwani Kumar, was not substantiated by him, as he had not produced any witness to prove his defence. It was also held by the learned trial Court that there was a complete chain of evidence against the accused and the report of the Chemical Examiner proved that the seal of the case property received in the laboratory was intact and tallied with the specimen of seal on NCB form and the sample of the seal which was sent with it. While dealing with the issue of FIR number being mentioned in the NCB form in the same pen in which other contents of the same were written, learned trial Court held that though admittedly the FIR number was written with the same pen within which the NCB form was written, but then it was not obligatory in law that that FIR number was to be written with different pen and ink. On these bases, it was held by the learned trial Court that the prosecution had proved the case against the accused beyond reasonable doubt. Accused Anil Kumar was accordingly convicted by the learned trial Court. 6. Feeling aggrieved by the judgment so passed by the learned trial Court, accused Anil Kumar has filed this appeal. 7. Learned counsel for the appellant has argued that the judgment passed by the learned trial Court is perverse and not sustainable in the eyes of law, as the learned trial Court has failed to appreciate that the prosecution had not been able to prove its case beyond reasonable doubt against the appellant. It was further argued by the learned counsel for the appellant that the learned trial Court erred in not appreciating that there was non compliance of Section 50 of Narcotic Drugs and Psychotropic Substances Act, which as per the learned counsel was mandatory. He further argued that the judgment of conviction passed by the learned trial Court was otherwise also not sustainable in law, as the learned trial Court had erred in not appreciating that no narcotic drug was recovered from the accused as per the story put forth by the prosecution and in fact, all documentation had taken place in the Police Station itself. He further argued that the learned trial Court also erred in not appreciating that the independent witnesses were not associated by the police party with the alleged seizure and recovery of the narcotic from the accused, as in fact no seizure and recovery of any narcotic took place from the accused as per the story so concocted by the prosecution. He further argued that there were major contradictions and inconsistencies in the statements of official witnesses, which were conveniently ignored by the learned trial Court. On these bases, he urged and argued that the judgment of the learned trial Court was not sustainable in the eyes of law and the same be set aside. 8. Learned Deputy Advocate General, on the other hand, argued that the judgment of conviction passed by the learned trial Court was neither perverse nor could it be said that the same was not sustainable in the eyes of law. 8. Learned Deputy Advocate General, on the other hand, argued that the judgment of conviction passed by the learned trial Court was neither perverse nor could it be said that the same was not sustainable in the eyes of law. He argued that the evidence placed on record by the prosecution proved the guilt of the accused beyond reasonable doubt and there was complete compliance of the statutory provisions of the ND & PS Act in the course of search and seizure, including the compliance of Section 50 of the Act. Learned Deputy Advocate General further argued that the learned trial Court had correctly concluded that there were neither any major discrepancies in the testimonies of police officials and that as the accused was apprehended at an isolated and secluded place, no independent witnesses could be associated. On these bases, it was urged by the learned Deputy Advocate General that as there was no merit in the appeal, the same be dismissed. 9. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by the learned trial Court. 10. In all, prosecution examined seven witnesses to prove its case and all the seven witnesses are police witnesses. 11. HC Prem Singh entered the witness box as PW-1 and he deposed in the Court that he remained posted as MHC in Police Station Padhar during the year 2008-2010. He proved on record copy of rapat Ex. PW-1/A as well as copy of rapat Ex. PW1/B. He further deposed that on 23.09.2010, ASI Gurdyal Singh deposited with him one parcel sealed with seal impression “A” at five places alongwith NCB form in triplicate and sample seals etc and he made an entry qua the case property at S. No. 250 in the malkhana register. He proved on record the abstract of malkhana register as Ex. PW1/C. He also stated that he had forwarded the case property to FSL Junga vide RC No. 109/10 through Constable Hem Raj alongwith NCB form and sample seal etc. In his cross-examination, he stated that Shreshtha Thakur was the SHO of the Police Station at the relevant time. He further deposed that he could not tell whether SHO was present in the Police Station or not on the relevant date. In his cross-examination, he stated that Shreshtha Thakur was the SHO of the Police Station at the relevant time. He further deposed that he could not tell whether SHO was present in the Police Station or not on the relevant date. He further deposed that he had not made any entry on receipt of case property which was deposited at FSL Junga. He admitted it to be correct that he had not made any entry in the malkhana register to the effect that he had sent the case property to FSL, Junga on 24.09.2010. 12. HHC Hem Raj entered the witness box as PW-2 and he deposed that he remained posted as Constable on General duty at Police Station Padhar during the year 2010 and on 24.09.2010, one parcel sealed with seal impression “A” alongwith relevant documents and sample seal was given to him by MHC Prem Singh to be deposited at FSL, Junga, which property was so deposited by him at FSL, Junga. 13. HC Narender Kumar, who has entered the witness box as PW-3 deposed that on 24.09.2010 at 3:00 p.m. the then Dy. Superintendent of Police, Head Quarter Sh. Narender Kumar handed over a special report of he case under Section 57 of ND & PS Act to him, copy of which was Ex. PW3/A. He further stated that he had entered the special report in the special report register at S. No. 112, copy of which is Ex. PW3/B. 14. HC Hari Singh entered the witness box as PW-4 and he stated that he remained posted as HC/IO in Police Station Padhar during the year 2010-2012. He further stated that on 23.09.2010, a police party headed by ASI Gurdyal consisting of HHG Pankaj, HHG Baldev and him (PW-4) proceeded from the Police Station at around 9:30 a.m. for patrolling towards Ghatasani in a vehicle which was driven by Ashwani Kumar. He further deposed that at around 4:00 p.m. when the police party had reached near Kufar Dhar on Ghatasani-Barot road, they saw a person coming from Barot side on foot, who as soon as he saw the police party, got frightened and started moving fast towards back side. Upon suspicion, ASI/Investigating Officer directed the Driver to stop the vehicle and the said person was apprehended on the spot. He further deposed that the abdomen of the said person was found bulging. Upon suspicion, ASI/Investigating Officer directed the Driver to stop the vehicle and the said person was apprehended on the spot. He further deposed that the abdomen of the said person was found bulging. He further deposed that as the place was secluded and no independent person was available as a witness, therefore, he and Ashwani Kumar were associated as witnesses in the search party. He further stated that the apprehended person disclosed his name as Kamal Kumar, R/o Jabli, District Bilaspur. He further stated that Investigating Officer obtained the consent of the accused for taking his search vide memo Ex. PW4/A. He also stated that the search of the accused was carried by the Investigating Officer and in the course of search, a polythene carry bag inside the clothes was found tied over his abdomen. Black coloured substance in the shape of sticks was recovered from inside the same, which on smelling was found to be charas. He further deposed that when weighed, charas was found to be 500 grams. The recovered charas was packed in a cloth parcel alongwith polythene and was sealed with seal impression “A” at five places. NCB form Ex. PW1/E in triplicate was filled in by the Investigating Officer at the spot. He and Ashwani Kumar signed the same as witnesses and the accused also appended his signatures over the same. This witness further deposed that Investigating Officer prepared ruqua Ex. PW4/F and sent the same to Police Station through Constable Ashwani Kumar. Spot map Mark-A was prepared by the Investigating Officer in his presence. He also stated that on 25.09.2010, accused Anil Kumar made a disclosure statement Ex.PW4/G and stated that he had purchased the said charas from one Kaltu on payment of Rs. 11,000/-. In his cross-examination, he stated that distance between Ghatasani and Kufar Dhar road was about 10 Kms. He admitted it to be correct that Barot road was a link road from Ghatasani highway. He further stated that he could not tell how many vehicles he had checked from Padhar to Kufar Dhar. He admitted that Ghatasani was a village having many houses. He denied that distance from Ghatasani to Kufar Dhar was about half kilometer. He stated that he could not say that private as well as Government vehicles used to ply on the said road. He admitted that Ghatasani was a village having many houses. He denied that distance from Ghatasani to Kufar Dhar was about half kilometer. He stated that he could not say that private as well as Government vehicles used to ply on the said road. He also stated that no effort was made by the Investigating Officer to call any witnesses from village Ghatasani. He further stated that the Investigating Officer had prepared the consent memo and he could not say how much time was taken by the Investigating Officer in writing the consent memo. He further deposed that for preparing the ruqua, one hour and twenty minutes were taken by the Investigating Officer. He further deposed that Ashwani Kumar met the police team on his return at Padhar Bazar. He also stated that column of NCB form Ex. PW-1/E were filled in by the Investigating Officer at the spot. He denied the suggestion that police party stopped the vehicle of one Principal and a lady, whose name was Neelu, in which car, the accused was also sitting on the rear seat and the charas was recovered from the purse of Neelu. He denied the suggestion that Principal was the brother-in-law of one police personnel Ashwani Kumar, who was part of the raiding party. He stated that Jogindernagar was at a distance of about 25 Kms. from Kufar Dhar, where there were houses of Gazetted Officers and Magistrates. He also stated that no efforts were made by the Investigating Officer to take the accused Anil Kumar to the nearest Gazetted Officer. 15. HHC Tilak Raj, who entered the witness box as PW-5, deposed that he was posted as general duty Constable in Police Station, Padhar in the year 2010. Accused Anil Kumar had identified accused Kaltu Ram and disclosed that he had purchased the charas in issue at Rs. 11,000/- from Kaltu Ram on 23.09.2010 in his presence. 16. PW-6 HHC Mehar Chand stated that he was posted as a general duty constable in Police Station Padhar in the year 2010 and on 24.09.2010, ASI Gurdyal Singh had handed him a special report, which was handed over by him to Deputy Superintendent of Police Narender Kumar. 17. Investigating Officer Gurdial Singh entered the witness box as PW-7. He deposed in the Court that in the year 2010, he was posted as Investigating Officer at Police Station Padhar. 17. Investigating Officer Gurdial Singh entered the witness box as PW-7. He deposed in the Court that in the year 2010, he was posted as Investigating Officer at Police Station Padhar. On 23.09.2010, he along with HC Hari Singh, HHG Pankaj Kumar and HHG Baldev had gone on patrolling duty to Padhar, Ghatasani and Jhatangri in a Government Vehicle bearing registration No. HP-34A-8047, which was being driven by Constable Ashwani Kumar. He further deposed that at 4:00 p.m., when they were at Kufar Dhar Jhatangari Barot Road, they saw a person coming on foot from Fuen Galu towards Jhatangri and the said person as soon as he saw the police vehicle, tried to run back. On this, he stopped the vehicle and the accused was nabbed at the spot with the help of other police officials. He further deposed that he noticed that something was bulging out from the abdomen of the accused. As the place was a secluded one, therefore, no independent witness was available. In these circumstances, he associated Constable Ashwani Kumar and HC Hari Singh as witnesses in the search party. On inquiry, the accused disclosed his name as Anil Kumar, son of Sh. Kamal Kumar. This witness further deposed that the accused was apprised of his right to give his search to a Gazetted Officer or Magistrate. But the accused gave his consent in his own handwriting that he wanted to be searched by the Police Officer. He further deposed that he carried out the search of the accused and during the personal search of the accused, a polythene bag light green in colour was found tied over his abdomen inside the cloth. From the said bag, black coloured substance in the shape of sticks was recovered, which when smelled and on the basis of experience, was found to be charas. He further deposed that when weighed, the recovered charas was found to be weighing 500 grams. Thereafter, he deposed about the mode and manner in which the seizure of the charas was made. He further deposed that he filled up NCB form Ex. PW1/E in triplicate and sent ruqua Ex. PW4/F through Constable Ashwani Kumar. He further deposed that on 25.09.2010, accused Anil Kumar made a disclosure statement Ex.PW4/G to the effect that he had purchased charas from Kaltu Ram. He further deposed that he filled up NCB form Ex. PW1/E in triplicate and sent ruqua Ex. PW4/F through Constable Ashwani Kumar. He further deposed that on 25.09.2010, accused Anil Kumar made a disclosure statement Ex.PW4/G to the effect that he had purchased charas from Kaltu Ram. He also stated that case property was deposited with MHC Prem Singh without resealing it as on 23.09.2010, he (PW-7) was acting as SHO Police Station Padhar. In his cross-examination, this witness deposed that the alleged place of recovery was about 30 kms. from Police Station Padhar. He further stated that it was two hours walk from Police Station Padhar to Fieun. He denied the suggestion that Fieun Galu was a thickly populated area, however, he admitted it to be correct that village Jhatangri was adjoining to village Fieun Galu. In fact, he deposed as under with regard to associating an independent witness: “I had not sent any police official to be witness of search and seizure.” He denied that he had not given any option to the accused to be searched before the Gazetted Officer or Magistrate. He admitted it to be correct in his cross-examination that in Ex. PW4/A, there was no mention of legal rights. He stated that Constable Ashwani Kumar came to the Police Station alongwith ruqua in a Government vehicle. In his cross- examination, he stated that he did not know that accused Anil Kumar was apprehended from Maruti car which was driven by a Principal of Government Senior Secondary School Barot, in which accused Anil Kumar had taken lift. He also stated that he did not know that in the said vehicle a lady named Shalu was also sitting. He denied that no recovery had been effected from the accused. He stated it to be incorrect that in photograph Ex. PW7/A houses were visible. 18. The consent memo prepared as per the prosecution under Section 50 of the ND & PS Act is on record as Ex.PW4/A. A perusal of the same demonstrates that the accused was not informed by way of the said consent memo by the Investigating Officer that the right conferred upon him of being searched before a Magistrate or a Gazetted Officer was his statutory right. NCB form which as per the Investigating Officer and other police officials was filled in by the Investigating Officer at the spot is Ex. NCB form which as per the Investigating Officer and other police officials was filled in by the Investigating Officer at the spot is Ex. PW1/E. A perusal of the said form demonstrates that in Column No. 1 of the same Case FIR No. 101/2010, dated 23.09.2010 under Section 20-61-85 ND & PS Act, Police Station Padhar, District Mandi, Himachal Pradesh is entered in the same pen and in the same handwriting and flow in which Columns No. 1 to 8 of the same have been filled. 19. Now, as per the prosecution, the accused was apprehended at the spot at around 4:00 p.m. It has come in the statement of PW-4 that the Investigating Officer took around one hour and twenty minutes to fill the NCB form. In Column No. 3 of the NCB form, the time of seizure of the narcotic is mentioned as 4:15 p.m. at Kufar Dhar. There are on record photographs Ex. PW-7/A, which as per the police witnesses were taken at the spot, of the charas which was so recovered from the accused. 20. At this stage, it is pertinent to refer to Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Act. Said Section reads as under: “50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 21. In the present case, as per the prosecution, the charas was recovered from a polythene bag light green in colour inside a cloth which was tied over his abdomen by the accused. 22. A three Judge Bench of the Hon’ble Supreme Court in State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350 , while interpreting the scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Act has held that an incriminating article can be kept concealed in the body or clothing's or coverings in different manner or in the footwear and while making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word “search of person.” The Hon’ble Supreme Court has further held that one of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search. The relevant paras of the judgment are quoted herein-below: “10. We are not concerned here with the wide definition of the word "person" which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. The relevant paras of the judgment are quoted herein-below: “10. We are not concerned here with the wide definition of the word "person" which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothing's." In a civilized society appropriate coverings and clothing's are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothing's. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothing's or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothing's, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothing's and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 12. An incriminating article can be kept concealed in the body or clothing's or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person." One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc. they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free. 13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab vs. Baldev Singh, 1999 (6) SCC 172 and para 12 of the reports is being reproduced below: "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." The Bench recorded its conclusion in para 57 of the reports and sub-paras (1), (2), (3) and (6) are being reproduced below: 57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorized 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 a Magistrate would cause prejudice to an accused. 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 a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. *** *** *** *** (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 13. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.” 23. Coming to the facts of the present case, the case of the prosecution itself is that the charas was concealed by the accused in a polythene bag light green in colour inside a cloth, which was found tied over his abdomen. Therefore, here is a case where in the process of search, the human body comes into contact. In this view of the matter, as per the law declared by the Hon’ble Supreme Court (supra), the compliance of Section 50 was mandatory. 24. Therefore, here is a case where in the process of search, the human body comes into contact. In this view of the matter, as per the law declared by the Hon’ble Supreme Court (supra), the compliance of Section 50 was mandatory. 24. As I have already discussed above, the consent memo which was so prepared in compliance to Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Act by the Investigating Officer, does not mention that the Investigating Officer has disclosed to the accused that his right of being searched in the presence of a Gazetted Officer or a Magistrate was a statutory right. This fact in fact stands admitted by the Investigating Officer in his cross-examination. 25. The Hon’ble Supreme Court in K. Mohanan vs. State of Kerala, (2000) 10 SCC 222 had held: “6. If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW-1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with.” 26. By relying upon the said judgment, the Hon’ble Supreme Court in Vinod vs. State of Maharashtra, (2002) 8 SCC 351 has held: “7. The law enunciated by this Court in K. Mohanan is clear as to the manner in which Section 50 of the Act has to be complied with. Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a gazetted officer for the purpose of the search but in form him of his right in that behalf under the law. The recital in Exhibit 38 and Exhibit 30 does not indicate the same. Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a gazetted officer for the purpose of the search but in form him of his right in that behalf under the law. The recital in Exhibit 38 and Exhibit 30 does not indicate the same. In that view of the matter, we set aside the findings recorded by the High Court that there was compliance with Section 50 of the Act. The view of the trial Court that non-compliance with Section 50 of the Act does not prejudice the accused cannot be sustained for the requirement of the Section is mandatory. If Exhibit 38 and Exhibit 39 cannot be used to establish search of the person of the accused, his possession of brown sugar is not proved. Hence we set aside the order of the trial Court as affirmed by the High Court. The appeal is allowed accordingly.” 27. When we apply the law so laid down by the Hon’ble Supreme Court, as has been referred to above, in the facts of the present case, the same leads to no other conclusion but that in the present case, there has been a breach of the mandatory provisions, as are contained in Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Hon’ble Supreme Court in Ashok Kumar Sharma vs. State of Rajasthan, (2013) 2 SCC 67 has again reiterated that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. This important aspect of the matter has been totally ignored by the learned trial Court while convicting the accused. In fact the cross-examination of the Investigating Officer (PW-7) itself demonstrates that he admitted in the same that in Ex. PW4/A, i.e. consent memo, there was no mention of legal rights. This important aspect of the matter has been totally ignored by the learned trial Court while convicting the accused. In fact the cross-examination of the Investigating Officer (PW-7) itself demonstrates that he admitted in the same that in Ex. PW4/A, i.e. consent memo, there was no mention of legal rights. Para-22 of the impugned judgment demonstrates that one of the contention of the accused before the learned trial Court was that the Investigating Officer had not complied with the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which was mandatory in character, but however, learned trial Court has neither discussed nor adjudicated on this aspect of the matter. Learned trial Court gravely erred in not appreciating that taking into consideration the peculiar facts of the case wherein as per the prosecution, the narcotic drug was recovered from the body of the present accused, the compliance of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 was mandatory. Accordingly, in my considered view, the judgment of conviction passed by the learned trial Court in fact is liable to be quashed and set aside on this count alone. 28. Admittedly, in the present case, the police did not associate any independent witness in the course of search and seizure of the accused at the time when the alleged incident took place. As per the prosecution, as the accused was apprehended at a secluded and isolated place, therefore, no independent witness could be associated. 29. Learned trial Court has also erred in not appreciating that the factum of non-joining of an independent witness by the Investigating Officer in the course of search and seizure of charas from the accused also shrouds the case of the prosecution with suspicion in the facts of the case. This is for the reason that it has come in the testimonies of all police witnesses, including the Investigating Officer that no attempt was made by the Investigating Officer to associate any independent witnesses in the course of search and seizure. The contention of the prosecution that the recovery was effected at an isolated and secluded place and for this reason, no independent witness was associated by the Investigating Officer, does not seem to be justifiable for the reason that it is not as if the accused was apprehended in late hours. The contention of the prosecution that the recovery was effected at an isolated and secluded place and for this reason, no independent witness was associated by the Investigating Officer, does not seem to be justifiable for the reason that it is not as if the accused was apprehended in late hours. As per the prosecution, he was apprehended at around 4:00 p.m. The police party admittedly was travelling in a Jeep and even as per the prosecution, Ghatasani, which was populated village was just at a distance of 10 kms. from the place where the accused was allegedly apprehended by the police party, still no effort was made to join independent witnesses. This shrouds the case of the prosecution with suspicion and casts doubt as to whether the accused was actually apprehended in the mode and manner in which the prosecution wants this Court to believe. 30. Besides this, there are contradictions and discrepancies in the statements of prosecution witnesses, which have been ignored by the learned trial Court by terming them to be trivial, whereas said contradictions, in my considered view, are not trivial. Investigating Officer in his statement has stated that the sealed parcel in which the seized charas etc. were kept was not re-sealed in the Police Station as he himself was acting as SHO on the relevant date. His statement is quoted herein-below: “The case property was deposited with the MHC Prem Singh without resealing it, as on 23.09.2010, I was acting as SHO P.S. Padhar.” 31. Now, HC Prem Singh, who was posted as MHC at the relevant time in Police Station Padhar, in his cross-examination, stated that Shreshtha Thakur was SHO at the relevant time, but he could not tell whether SHO on that day was in the Police Station or not. He has not stated that PW-7 was the acting SHO at the relevant time and therefore, the parcel containing the seized narcotic drug was not re-sealed. Constable Ashwani Kumar, who had taken the ruqua to the Police Station, as per the prosecution was not examined by the prosecution and he in fact was given up, as being repetitive in nature on 17.07.2014. Constable Ashwani Kumar, who had taken the ruqua to the Police Station, as per the prosecution was not examined by the prosecution and he in fact was given up, as being repetitive in nature on 17.07.2014. The factum of the said witness not being examined also shrouds the case of the prosecution with suspicion, because in his defence, the case put up by the accused was that the charas in issue in fact was not recovered from him but was recovered from the possession of a person who was related to Ashwani Kumar. A perusal of the records demonstrates that the suggestion to this effect were put to PW-4 HC Hari Singh, who though denied the same. Immediately thereafter, on the same date, PW-Ashwani Kumar, who was present in the Court was given up by the learned Public Prosecutor, on the ground that the witness was repetitive in nature. Similarly, SHO Sureshta Thakur was also given up by the prosecution on 22.06.2015 on the ground that the said witness was a formal witness. 32. The contention of the prosecution that no independent witness was associated as the accused was apprehended at a secluded place is belied from the photographs, which are on record, perusal of which demonstrates that the buildings exist adjacent to the place where the alleged recovery took place. Not only this, it is surprising that though as per the prosecution, the policy party in issue was on patrolling duty at the relevant date when the alleged recovery of charas was made from the accused, but as per witnesses of the prosecution, who were members of the said police party, not even a single vehicle was checked by them. This also shrouds the case of the prosecution with suspicion. 33. This Court is not oblivious to the fact that it is not necessary for the prosecution to always prove its case on the basis of testimonies of independent witnesses, but then it is settled law that in case there are no independent witnesses, then the testimonies of official witnesses have to be cogent, trustworthy and the same should inspire confidence of the Court. In the present case, in my considered view, the testimonies of the police officials are neither cogent nor trustworthy nor the same inspires the confidence of the Court. In the present case, in my considered view, the testimonies of the police officials are neither cogent nor trustworthy nor the same inspires the confidence of the Court. Besides this, non compliance of the statutory provisions of Section 50 of the Act is also fatal in this case. Therefore, learned trial Court has erred in holding that the prosecution had proved its case against the accused beyond reasonable doubt. In my considered view, on the basis of evidence on record, it cannot be said that the prosecution was able to prove its case against the accused beyond reasonable doubt and therefore, benefit of doubt has to go to the accused as it cannot be said that prosecution was able to prove beyond reasonable doubt that 500 grams of charas was recovered from the person of the accused on the date, place and time as the prosecution wants this Court to believe. 34. In view of the above discussion, this appeal succeeds. The judgment of conviction passed against the accused/present appellant by the Court of learned Special Judge (III) Mandi in Trial No. 24/15/2011, dated 21.07.2016 is set aside and appellant is acquitted of the charge of commission of offence punishable under Section 20 of the ND & PS Act by giving him benefit of doubt. Fine amount, if any, deposited by the accused Anil Kumar is ordered to be released to him, in accordance with law. Accused Anil Kumar be released forthwith, if not required in any other case. Registry is directed to do the needful. 35. The appeal stands disposed of.