State of H.P. vs Vikas Sharma

R.B. Misra, J.—Heard learned Counsel for the parties.

The present criminal appeal has come for consideration by virtue of granting leave to appeal u/s 378(3) of the Code of Criminal Procedure in reference to the judgment dated 17.1.1997, passed by learned Sessions Judge, Kinnaur, Sessions Division, Rampur Bushhar in Case No. 7-R/2 of 1996, for alleged offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985, whereby the alleged accused / Respondent was acquitted.

In order to adjudicate the present criminal appeal, it is necessary to give the brief facts of the prosecution case. On 21.1.1996, receiving the secret information, SHO Shyam Lal reached Shamshar along with police officials at about 3.00 PM. One person was spotted who had tried to run away after seeing the police party. However, he was apprehended and disclosed his name as Vikas Sharma. Vikas Sharma was wearing one Jacket and he was given in writing that there is doubt that he was in possession of ''Charas'' and was asked as to whether he want to give his search to the police or wanted to be searched before any Magistrate or Gazetted Officer. He consented to be searched by the police officials and on search, plastic polythene envelope was recovered which was ''Charas'' in the shape of ''Bhatti" and on weighing its weighed was found 1.200 kg, out of which the 25 Gms each was kept in different seal and two parcels were sent for chemical examination in the presence of the witnesses. FIR was lodged and accused was charged for the offence u/s 20 of NDPS Act.

In order to prove its case, the prosecution has examined as many as eight witnesses, whereas, the alleged accused persons has totally denied the prosecution case.

PW-1 Suresh Kumar supported the prosecution case and has stated that Ext PW-1/A was prepared at the spot, indicating to the accused as to whether he was willing to be searched by SHO or he wanted to give search before the Magistrate. Ext PW-1/A was prepared in the presence of Shiv Raj and Sita Ram, independent witnesses, and on search, ''Charas'' was found in the forms of sticks (Bhatti) from a polythene envelope which was kept inside the Jacket and 25 Gms each was kept in two different seals and were handed over to Shiv Raj. Special report Ext PW-1/E was handed over to PW�1 by MHC Durga which PW-1 has handed over to SDPO. Rukka Ext PW-1/F was also handed over to PW-1 by SHO which was brought to the police. As per the testimony of PW-1, house of Pradhan, GP, Ani is at a distance of 1 1/2 Kms from Ani. He has also stated that three boys came in a taxi from Kangra who were arrested by the SHO and the SHO had taken them before the Magistrate, Ani and the SHO prepared a calandra against those three persons u/s 109 Code of Criminal Procedure PW-1 has further stated that FIR was lodged between 4.30 PM to 5.00 PM.

On 21.1.1996, PW-2, Shiv Raj, said to be an independent witness, has stated that he along with Sita Ram and SHO had gone to Shamshar and two people were brought in the Van by the police and were taken to the police in his Van. In cross examination also, PW-2 has stated that two people were brought in the Van. However, PW-2 did not support the prosecution case as he has stated that memo Ext PW-1/A was prepared which was though signed by PW-1 and PW-3 Sita Ram. However, he has stated that Ext PW-1/ B, recovering the ''Charas'' , was prepared at Police Station and it was at the instance of police that he put the signature on the recovery memo. In the cross examination, PW-2 has stated that two persons including the accused was apprehended and has further stated that he had put the signature on memo Ext PW-1/A to Ext PW�1/F in police station, whereas, contents of these documents were not read over and explained to him. According to PW-2, President, Gram PanchayaT, Ani and respected persons also reside there.

PW-3 Sita Ram is said to have gone on 21.1.1996 with the police officials and SHO and the taxi was parked near one water tap. Police Officials asked PW-3 to wait there and they had gone upwards and after sometime they brought two boys. One of them was local and the other was from Kangra side. According to PW-3 he has put signature on some document and according to him, accused Vikas Sharma was brought by the police but no ''Charas'' was recovered from him at the spot. PW-3 has categorically indicated that the ''Charas'' Ext P-1 was lying on the table of SHO at Police station and Ext PW-1/D was signed by PW-3, but grounds of arrest were not disclosed to the accused in his presence. PW-2 and PW-3 have not supported the prosecution case and has indicated that two boys were brought by the police officials and they had put signature on the recovery memo at the instance of police.

PW-4 is C. Beli Ram, a police official, Ani to whom the Rukka was handed over. PW-5 is Roshan Lal, who brought the special report Ext PW-1/E to SDPO. PW-6 is Jia Lal to whom MHC Durga Dass handed over one sealed parcel for delivering the same at Chemical Laboratory at Kandaghat which was handed over by him. PW-7 is HC Durga Dass, who recorded FIR Ext PW-1/G and was supporting the prosecution case and has stated in the cross examination that police had arrested three boys u/s 109 Cr.PC, who were from Kangra and Sundernagar. However, PW-7 was not aware of the names of the boys. The boys were arrested during evening time on 21.1.1996. However, PW-7 was ignorant about the recovery of ''Charas'' as he was not present at the post.

PW-8 SI Shyam Lal, SHO, PS Ani has supported the prosecution case and has said that after receiving secret information he reached Shamshar with other police officials and spotted Vikas Sharma and on apprizing him as to whether he wanted to be searched by the police party or went to give search from the Magistrate or the Gazetted Officer and on getting his consent in writing Ext PW-1/A his search was made in the presence of two independent witnesses and on recovery two separate seals were prepared and sent for chemical examination. As per the testimony of PW-8, ''Charas'' was sealed at the spot which was handed over to MHC in police station and in cross examination P-8 has denied that three boys were involved in the case u/s 309 Code of Criminal Procedure

We have examined the prosecution witnesses and material on record and we notice that two independent witnesses, PW-2 Shiv Raj and PW-3 Sita Ram have put the signature on recovery of ''Charas'' at the instance of the police without witnessing the same and as per PW-3 Sita Ram, the police officials had gone upward and have brought two boys. We also notice that PW-8 SI Shyam Lal, SHO, PS, Ani before making personal search for recovering the ''Charas'' had only enquired as to whether the accused wants to be searched by the police parties or wants to give search by the Magistrate or Gazetted Officer. These aspects of inquiry before search is not a compliance of the provisions of Section 50 of NDPS Act. In view of the Ajmer Singh v. State of Haryana, JT 2010 (2) SC 175 provisions of Section 50 of ''NDPS Act'' are relevant in reference to personal search of an accused.

A Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh, 1999(6) SCC 172, has observed that the accused as a right to be made aware of his right to get searched before a Magistrate or 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 has observed 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 further observed as follows:

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 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 search before a Gazetted Officer or Magistrate would cause prejudice to an accused

(emphasis supplied)

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

Thereafter, Apex Court in Man Bahadur v. State of HP, JT 2008 (10) SCC 518 again followed the above judgments and held that not only the consent of the accused should be taken but the accused must also be informed of his right to get himself searched in the presence of Magistrate.

Following the above decision, the Division Bench of the High Court of Himachal Pradesh in State of HP v. Fateh Singh Latest HLJ 2009 (HP) 684 has also taken the similar above view.

In our considered view, the law is well settled that in respect of personal search mere asking the accused in the presence of witnesses as to whether he wanted to be searched by a Magistrate or Gazetted Officer or Police official, is not the compliance of Section 50 of NDPS Act , but the accused must be informed that he has right to be searched. From the documents, we find that there no such endeavour was made on the part of PW-8 SI Shyam Lal to inform the accused that he has right to be searched. As such, there is non- compliance of Section 50 of the ''NDPS Act''. So much so, merely taking consent of accused to be searched is not sufficient compliance of the provisions of Section 50 of the ''NDPS Act'', rather the accused has to be very categorically and specifically be informed about his right to be searched. Such view has also been taken by the Division Bench of this Court in Fateh Singh (supra).

On scrutiny of the prosecution witnesses and material on record, we find that mandatory provisions of Section 50 of the ''NDPS Act'' has not been complied with. In such circumstances, the prosecution case has vitiated. In the present case, PW-8, SHO has not made a police raiding party on 21.1.1996, allegedly recovering ''Charas'' from the accused/Respondent, which is doubtful in view of the testimony of PW-2 and PW-3, the independent witnesses.

In these circumstances, learned trial court has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt and in our considered view also, the prosecution has failed to bring home the guilt to the accused and for lack of compliance of mandatory provisions of Section 50 of NDPS Act, the case of prosecution is vitiated.

Resultantly, the appeal fails, being devoid of any merit, as such the same is dismissed. Bail bonds furnished by the accused / Respondent are hereby discharged.