State of Himachal Pradesh vs Sukh Ram

Sanjay Karol, J.—The moot question, which arises for consideration in the present appeal, is as to whether prosecution has been able to establish, through the testimony of the Investigating Officer Balak Ram (PW-9) and consent memo (Ex. PW-5/A), of having complied with the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act), or not. Also, as to whether in the absence of non-association of independent witnesses, prosecution through the testimony of witnesses of search and seizure, namely Fateh Singh (PW-6) and Dharam Singh (PW-10), has been able to prove the charged offence, beyond reasonable doubt.

State has appealed against the judgment dated 25.11.2009 of the learned Special Judge, Sirmaur District at Nahan, Himachal Pradesh, passed in Sessions Trial No. 36-ST/7 of 2008, titled as State of Himachal Pradesh v. Sukh Ram, challenging the acquittal of respondent Sukh Ram (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 20 of the NDPS Act.

It is the prosecution case that on 5.10.2006, ASI Balak Ram (PW-9), accompanied by police officials Virender Kumar (PW-5), Meen Singh (not examined), Tapender Singh (not examined) and Ishwar Singh (PW-1), was present in Shillai Bazaar. At about 8.10 a.m., they received secret information that passenger of Seat No. 1, travelling in Bus No. HP-17-3955, was carrying some contraband substance. Information (Ex. PW-9/A) was prepared and sent to the SDPO, Paonta Sahib, through Ishwar Singh (PW-1). The Bus was stopped and passengers searched. Consent (Ex. PW-5/A) of the accused was obtained by Balak Ram (PW-9) and from personal search of the accused, contraband substance, i.e. Charas was recovered. Accused had tied a small bag inside his Pyjama. Upon weighment, contraband substance was found to be 650 grams. Two samples of 25 grams each were drawn and sealed with seal impression ''A''. Bulk parcel was also sealed with the same seal impression. NCB form (Ex. PW-9/B) was filled up, in triplicate. Seal after use was handed over to HC Virender Kumar. Ruka (Ex. PW-2/A) was sent through Meena Singh, who handed over the same to Kalyan Singh (PW-2), on the basis of which FIR No. 58/06, dated 5.10.2006 (Ex. PW-2/B), under the provisions of Section 20 of the NDPS Act, was registered at Police Station, Shillai, against the accused. With the completion of investigation on the spot, accused was arrested. ASI Balak Ram handed over the case property to the MHC of the Police Station. After making entry in the Malkhana Register, it was deposited in the Malkhana,. Sample was taken by Rupender Kumar to be deposited at the CFSL, Chandigarh and report (Ex. PW-9/F) obtained by the police. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 20 of the NDPS Act, to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 11 witnesses and statement of accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following plea:

"I am innocent. It is a false case. I had not been found in possession of any charas nor I was travelling in the bus. The police had obtained my signatures on certain documents under pressure in the Bazar at Shillai and then I was arrested and then later on released on bail."

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, present appeal by the State.

We have heard Mr. Ashok Chaudhary, learned Additional Advocate General, on behalf of the State as also Mr. Vishal Bindra, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in- AIR 1934 227 (Privy Council) , in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

Perusal of consent memo (Ex. PW-5/A) evidences the fact that there is total violation of mandatory provisions of Section 50 of the NDPS Act, for accused was not informed of his statutory right of being searched, in accordance with law.

A Constitution Bench of the Apex Court in State of Punjab Vs. Baldev Singh, etc. etc., , has clearly held that accused has a right to be made aware of his right of getting searched before a Magistrate or a Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda v. Arizona [ 384 US 436], the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search. It was thereafter held as follows:

"57 On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorised 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 Magistrate would cause prejudice to an accused."

(emphasis supplied)

A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat 2007(1) SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that accused must be told of his right to be searched before a gazetted officer or a Magistrate.

Thereafter, the Apex Court in Man Bahadur Vs. State of H.P., after taking note of aforesaid judgments, held that not only consent of the accused should be taken but he must also be informed of his right of getting himself searched in the presence of the Magistrate etc.

This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if consent memo does not reveal that accused was informed of his right of being searched before a Magistrate or a Gazetted Officer, search is not in conformity with Section 50 of the Act.

In Ashok Kumar Sharma Vs. State of Rajasthan, , the apex Court held as under:

"8. We may, in this connection, also examine the general maxim "ignorantia juris non excusat" and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting u/s 50 of the NDPS Act to inform the suspect of his right u/s 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure."

[Also see: Vijaysinh Chandubha Jadeja Vs. State of Gujarat, ; and Myla Venkateswarlu Vs. The State of Andhra Pradesh,

Accused must also be informed about his right, and since this was admittedly not done even orally, there is violation of mandatory provisions of Section 50 of the NDPS Act. Hence, we find such fact to be fatal.

What we further find is that seal was not produced in Court. Balak Ram states that seal was handed over to Virender Kumar, which fact is undisputed. Why is it that the same was not produced in the Court? has not been explained. Possibility of tampering with the same cannot be ruled out. On this point, we may only refer to para-10 of the impugned judgment, with which we are in agreement.

In the instant case, when police had prior intimation of accused possessing the contraband substance, then why is it that no independent witnesses, from amongst the passengers or the neighbourhood, were examined, particularly when driver of the Bus Fateh Singh (PW-6) did not support the prosecution and despite his extensive cross-examination, nothing fruitful could be elicited from his testimony.

Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was found to be in conscious and exclusive possession of Charas.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.