State of Himachal Pradesh vs Sandeep Kumar alias Gittu

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 24th August, 2005, delivered by the learned Sessions Judge, Kangra at Dharamshala, in Sessions Case No. 30P/ VII/2004, Sessions Trial No. 7 of 2005, whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The prosecution story, in brief, is that on 29th April, 2004, PW7, SI Mool Raj, alongwith PW1, Constable Raj Kumar; PW2, Constable Ajeet Singh and Constable Prakash Chand (not examined) left Police Station Palampur at about 11.30 a.m. for patrolling duty. They first went to Nagri and then went to Sukeri. They went to Nagri by bus and then by a private vehicle to Sukeri. They were coming back from Sukeri to Nagri by a short cut on foot. About one kilometer before Nagri, they saw a person coming from the opposite side. On seeing the police party, this person tried to ran away. This aroused the suspicion of the police officials and the person was apprehended. On interrogation, this person disclosed his name to be Sandeep Kumar (the accused). The said person was carrying a polythene bag in his hand. He was informed that it was suspected that he was carrying some contraband and he was to be searched and he may give his option as to whether he wanted to be searched before a Gazetted Officer, Magistrate or police officials. He allegedly consented to be searched by the police officials and on search of the polythene bag being carried in the hand of the accused, another polythene bag was found inside and inside the second polythene bag, there was charas, which on weighment was found to weigh 600 grams.

Thereafter, Rukka, Ex. PW1/ G, was sent to the Police Station through PW2, Constable Ajeet Singh and on the basis of this, FIR, Ex. PW2/ A was lodged. After arresting the accused and completing the other codal formalities at the spot, PW7, SI Mool Raj, returned to the police station, where he handed over the accused and the case property to PW4, Asif Jalal, who at that time was SHO, Palampur. PW4 resealed the case property with his own seal and deposited it with PW3, MHC Kushal Kumar, Incharge of the Malkhana vide report Ex. PW3/ A. Thereafter, PW3, MHC Kumar sent one of the samples through PW2, Constable Ajeet Singh to CTL Kandaghat and the Chemical Examiner, vide its report, Ex. PW7/ B, opined that the sample was of charas. On this basis, the accused was charged with having committed the offence aforesaid.

The learned trial Court acquitted the accused on two grounds; firstly that the provisions of Section 50 of the Act have not been complied with and secondly that no independent witnesses had been associated and there was no valid explanation for not associating the independent witnesses.

As far as the first point in concerned, in view of the law laid down by the Apex Court in State of Himachal Pradesh Vs. Pawan Kumar, , when the search of a bag being carried by the accused is carried out, then provisions of Section 50 are not attracted and even if there was noncompliance of Section 50, that will not affect the prosecution case.

However, as far as the second point is concerned, Section 100 (4) of the Code of Criminal Procedure reads as follows:

Persons in charge of closed place to allow

search.(

1)..............

(2)...............

(3)...............

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

This Section clearly states that when any search is to be made, then the person making the search should call two or more independent and respectable inhabitants of the locality where the place to be searched is situated. It is settled law that these principles are applicable not only for search of places but also to search of persons. No doubt, this rule that independent and respectable persons of the locality should be associated is not inflexible. There may be circumstances where it is not possible to arrange for independent witnesses. For example, the search may be done late in the night in remote areas where it is not possible to arrange the witnesses. There can also be circumstances where if the independent witnesses are sought to be arranged, the possibility of the accused running away cannot be ruled out. However, it is for the prosecution to show why independent witnesses could not be associated.

In the present case, as far as the Investigating Officer, PW7 SI Mool Raj, is concerned, his only explanation is that Nagri village was about one kilometer away and it was not possible to associate independent witnesses. Other than that, he has not stated a single word. His statement is contrary to the statement of PW1, who has, in no uncertain terms, stated that independent witnesses could be called from Nagri.

We may also note that the search, in this case, took place at about 1.00 p.m. in the day light hours. PW2, Constable Ajeet Singh, was sent with Rukka to Palampur and there was nothing which prevented him from sending independent witnesses from Nagri. There were as many as four police officials and there was only one accused and there was no possibility of the accused running away. In these circumstances, when Nagri village admittedly was close by and the search took place in the day light hours, the nonassociation of the independent witnesses would make the search doubtful. We are, therefore, of the opinion that the learned trial Court was right in holding that the prosecution had failed to prove that the search was conducted in accordance with law. We, therefore, find no merit in the appeal, which is accordingly rejected. Bail bonds discharged.