State of Himachal Pradesh vs Surender Singh

Sanjay Karol, J.—Assailing the judgment dated 14.12.2010, passed by Special Judge), Kullu, H.P., in Sessions Trial No. 12 of 2008, titled as State Versus Surender Singh alias Sonu & another, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 16.10.2007, Inspector Balwant Singh (PW. 6) alongwith other police officials was on his way to Niharni, in connection with investigation of FIR No. 6 of 2007 registered under the provisions of Section 42 of the Indian Forest Act, 1927. At Sambha forest accused after noticing the police party, got perplexed and tried to flee away. They were apprehended and on suspicion searched. 350 grams of charas tied with the knee of accused Surender Singh was recovered. The same was weighed. Two samples of 25 grams each were separated and sealed separately with seal a of seal impression ''B''. NCB form was filled up on the spot. Rukka (Ex. PW. 6/A) was sent to the Police Station, Kullu, on the basis of which, FIR No. 7/2007 dated 16.10.2007 (Ex. PW. 1/A), under the provisions of Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) was registered against the accused, who were arrested. Contraband substance was deposited at Police Station and thereafter sample sent for chemical analysis to the Forensic Science Laboratory and report wherefrom confirmed it to be charas. 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.

The accused were charged for having committed an offence punishable under the provisions of Sections 20 and 29 of the NDPS Act, to which they did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as six witnesses. Statements of the accused u/s 313 of the Code of Criminal Procedure were also recorded, in which they took plea of innocence. No evidence in defence was led.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard Mr. B.S. Parmar, learned Addl. Advocate General, on behalf of the State as also M/s. Naveen K. Bhardwaj and G.R. Palsra, Advocates, 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." "

Having minutely perused the testimonies of Hans Raj (PW. 2), Surender Kumar (PW. 5) and Balwant Singh (PW. 6), we find mandatory provisions of Sections 42 and 50 of the NDPS Act not to have been complied with. We need not, in detail, deal with the contradictions in the testimonies of the police officials who conducted the search and seizure operations, for we find the same to have been adequately discussed in the impugned judgment by the Court below. We are in agreement with the same.

Consent memos (Ex. PW. 2/A and Ex. PW. 2/B) reveal that Investigating Officer Balwant Singh (PW. 6) had prior information and on suspicion of the accused being in possession of the contraband substance i.e. charas, searched them. Now if the Investigating Officer had prior information and strong suspicion, then he was duty bound to send intimation to his superior officer, which was not so done. Also we find that accused was not informed of his statutory right so required u/s 50 of the NDPS Act.

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 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.

This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if consent memo does not record 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, ]

In view of the law laid down, accused must also be informed about his right and since this was admittedly not so done even orally, there is violation of mandatory provisions of Section 50 of the Act, rendering the prosecution case to be fatal.

We do not find prosecution to have proved its case beyond reasonable doubt by leading clear, cogent, convincing piece of evidence with regard to recovery of contraband substance from the conscious possession of the accused. Contradictions in the statements of the police officials are glaring, material and relevant totally shaking the edifice of the prosecution story.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused persons have 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., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.