State of Himachal Pradesh vs Rikhi Ram

Justice Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 24.4.2003, passed by the learned Sessions Judge, Chamba, in Sessions Case No. 1 of 2002, whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

Briefly stated, the facts of the case relevant for the decision of the case are that on 6.10.2001, PW-9 H.C. Pritam Singh alongwith HHC Rajinder Kumar, LHC Ram Parkash and PW-5 Constable Majid Mohd. were at Banikhet barrier on routine checking duty. At about 11.10 a.m., a private bus belonging to Prem Bus Service bearing registration No. HP-39-6535 came from Chamba side which was going towards Palampur. The bus was stopped for checking. When checking was going on, a person was found sitting on seat No. 27 and the police found that this person had tied something around his waist. On inquiry, the person disclosed his name to be Rikhi Ram (accused). On touching the material tied to the waist, the police officials found that it was something hard and this aroused their suspicion and, therefore, the accused was asked to get down from the bus and thereafter, his search was conducted in the presence of PW-1 Narain Dass and one Rarkesh Kumar. On search, it was found that the accused had wrapped a cloth around his waist. Inside this cloth, there was a bag and inside the bag there were two polythene packets in which charas was there, which, on weighing, was found to be 1.3 kg.

Two samples of 10 grams each were drawn from the bulk charas and the bulk charas as well as the samples were sealed into three separate parcels with seal impression ''P'' and the same were taken into possession. Other codal formalities were also completed at the spot. One of the samples was sent to CTL, Kandaghat for chemical analysis and it was found to be charas having resin content of 24.14%.

On the basis of the aforesaid material, the accused was charged with having committed an offence u/s 20 of the Act. He has been acquitted after trial, hence this appeal by the State.

This appeal can be disposed of on one short ground. Admittedly, the charas was recovered from the personal search of the accused and, therefore, the provisions of Section 50 of the Act, in our opinion, would be applicable. It is contended on behalf of the State that since this was a case of chance recovery, therefore, Section 50 of the Act would not be applicable. In view of the facts of the present case, we are not in agreement with this contention. Admittedly, the police party was present for checking duty, even though it may be routine checking duty. On seeing that something was tied to the waist of the accused, he was asked to get down from the bus, which, obviously, shows that by this time, the police officials were suspecting that something was wrong. Once, suspicion of the police officials was aroused and they were already at the barrier and admittedly at Banikhet a number of offices are situated, as admitted by the police officials also, they should have complied with the provisions of Section 50 of the Act.

Even with regard to the compliance of Section 50 of the Act, there are two entirely contradictory versions. PW-9 H.C. Pritam Singh, who was the incahrge of the search party, states that he did not even deem it fit to inform the accused that he had a right to be searched by a Gazetted Officer or a Magistrate since, according to him, this was a case of chance recovery. On the other hand, PW-5, Constable Majid Mohd., accompanying PW-9 H.C. Pritam Singh, in cross examination, has stated that the Investigating Officer had given an option to the accused as to whether he was willing to be searched before a Magistrate or a Gazetted Officer or before the police itself. Even he does not state that the accused was informed that he had a legal right to be searched in presence of some other witnesses. There is total noncompliance of Section 50 of the Act and, therefore, the accused was rightly acquitted by the learned trial Court.

There are other contradictions also. According to PW-5 Constable Majid Mohd., the entire search and codal formalities of preparation of documents were conducted just outside the bus in the open and thereafter only, the accused was taken to the Police Post at Banikhet. This is the stand of PW-9 H.C. Pritam Singh. However, the only independent witness examined, namely, PW-1 Narain Dass states that after the accused was made to get down from the bus, he was taken straightway to the Police Post, Banikhet and the entire search operations were carried out there. Despite appearing as a prosecution witness, he was not declared as hostile nor any attempt was made to clarify this contradiction in his statement.

In view the above discussion, we find no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the accused shall stand discharged.