R.B. Misra, J.@mdashThe Court has asked Shri Rajesh Verma, Advocate to assist this Court as legal aid counsel, which he has agreed. The documents are being provided to him and he shall be paid fees of Rs. 2000/ - for entire case payable to Shri Rajesh Verma from the Legal Aid Fund of H.P. High Court.
2. 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 judgment dated 8th June, 2009, passed by learned Special Judge, Fast Track Court, Kullu, H.P., in Sessions Trial No. 12 of 2008, for alleged offence u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''NDPS Act''), whereby the alleged accused / respondent was acquitted.
3. According to the prosecution, on 7.11.2006, SI Lal Singh, along with Constable Deepak Kumar and LC Meena Kumari, was present on the upper side of the road beneath village Dhama for arranging nakabandi associating Badri Prakash and Vijay Kumar, two independent witnesses, who came there with the raiding party which observed one person coming from village Dhama side, who, on seeing the police party, turned back and tried to escape from the spot, however, was over-powered by SI Lal Singh with the help of other police officials. On asking his name, he disclosed his name Harish Thakur, resident of village Fozal, Tehsil Kullu.
4. After apprising him about his legal right of search in presence of a Magistrate or a Gazetted Officer or the police party present on the spot and after obtaining his written consent, search was made by the police party and on personal search, Charas, wrapped in ploythene envelope in the shape of sticks, was recovered from the jacket of the accused / respondent. On weighment, the Charas was found be 150 grams. Two samples of Charas 25 grams each were separated from the recovered Charas and were sealed in separate parcels. Remaining Charas was kept in bulk parcel. Search and seizure memo was prepared and sample was sent for chemical examination. FIR was lodged and accused was charged for the offence u/s 20 of NDPS Act.
5. In order to prove its case, the prosecution has examined as many as nine witnesses, whereas, the alleged respondent / accused to his statement u/s 313 Cr.P.C. has denied the prosecution case.
6. On receiving the chemical report from FSL Junga, it was noticed that percentage of resin in the sample was found to be 34.78% W/W. The prosecution has taken support of PW-7, LC Meena Kumari, PW-8 Badri Prakash and PW-9, SI Lal Singh. PW-7 and PW-9 happened to be the police officials and PW-8 is independent witness. Lal Singh, PW-9, has stated on oath that on personal search of accused, one polythene envelope was found in the right pocket of the jacket of respondent / accused and after search Charas was recovered. On weighing the same, it was found to be 150 grams. Two samples of Charas 25 grams each were separated from the recovered Charas. Remaining Charas was sealed in separate parcel. Samples of seal impressions ''T'' were obtained separately. Search and seizure memo was prepared on the spot. PW-9 has further stated that independent witnesses Vijay Kumar and Badri Prakash had met police party at village Dhama and that ''Naka'' had not been laid on the spot and that the respondent / accused had been spotted from a distance of about 10 or 15 feet, whereas, PW-7 LC Meena Kumari has stated that ''Naka'' had been laid by the police near village Dhama on the upper side of the road and as per her testimony, witnesses Badri Prakash and Vijay Kumar had joined the police party at village Patlikuhal. PW-7 has further stated that the respondent / accused had been spotted by the police from a distance of about 100 meters, as such, there are material contradictions in the testimony of LC Meena Kumari (PW-7) in respect of joining and associating the witnesses in the raiding party.
7. After appraisal of the material on record, we notice that contradictions are emanating from the testimony of PW-7 about the place of laying ''Naka'' and the manner of joining of independent witnesses with the raiding party. PW-7 has very categorically indicated that ''Naka'' had been laid near village Dhama when the accused had been apprehended with contraband goods but her version stands controverted by SI Lal Singh by stating that police party was present near village Dhama in connection with detection of crime and SI Lal Singh has specifically stated that ''Naka'' was arranged on the spot. Aforesaid contradictions in the evidence of prosecution witnesses create doubt about the correctness of the prosecution story regarding the apprehension of the respondent / accused at the alleged place of occurrence with incriminating article.
8. Apparent contradictions having emerged on record from the testimonies of PW-7 and PW-9 which cannot be termed as minor as independent witness PW-8 Badri Prakash has not supported the prosecution story. PW-8 Badri Prakash (independent witness) indicates that he has taken different stands on oath about this incident. PW-8 has stated in his examination-in-chief that Charas had been recovered from the possession of the respondent / accused but subsequently in his cross examination he took different stand stating that neither any person of the respondent / accused had been subjected to search by the police nor Charas had been recovered from his possession. As such, PW-8 was declared hostile.
9. A perusal of search and seizure memo Ext.PQ goes to show that it contains the names and addresses of witnesses in whose presence the contraband had been recovered from the possession of the respondent / accused. Search and seizure memo indicates that the contraband goods were recovered from the respondent / accused in presence of Badri Prakash and Vijay Kumar. Such aspects indicate that Badri Prakash and Vijay Kumar were present on the spot at the time of recovery of contraband goods. However, both these witnesses, namely, Badri Prakash and Vijay Kumar had not put their signatures on the search and seizure memo. Search and seizure memo does not reveal that LC Meena Kumari had witnessed the recovery of contraband from the person of the respondent / accused. Had had LC Meena Kumari been present on the spot, her name, address and signatures would have certainly appeared on the search and seizure memo. Such aspect creates doubt about the correctness of the prosecution story regarding the recovery of contraband goods from the person of respondent / accused in the alleged manner.
10. From the scrutiny of testimonies of prosecution witnesses and material on record, the presence of LC Meena Kumari becomes doubtful on the spot. Independent witness Badri Prakash has not supported the prosecution case and second independent witness Vijay Kumar has not been examined on oath in the case. This aspect also creates doubt in the prosecution story about the involvement of the respondent / accused in the case. Hence, relying only on the testimonies of official witnesses, the respondent / accused cannot be held guilty for the offence u/s 20 of the NDPS Act.
11. Learned Sessions Judge has also arrived at the findings that the mandatory requirement of the provisions of Section 50 of the NDPS Act has not been complied with as before making the search, the respondent / accused has not been apprised of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer. Only indicating that whether he is consenting for being searched in presence of a Magistrate or a Gazetted Officer or by police party present on the spot is not the compliance of mandatory requirement of Section 50 of the NDPS Act. No document indicates that SI Lal Singh had ever apprised the respondent / accused about his legal right to be searched in presence of a Gazetted Officer or a Magistrate. As such, for non-compliance of mandatory requirement of the provisions of Section 50 of the NDPS Act makes the prosecution case fatal.
12. A Constitution Bench of the Hon''ble Supreme Court in
57. 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)
Similar view was also taken by this Court in Criminal Appeal No. 181 of 1997, titled State of Himachal Pradesh v. Vikas Sharma, decided on 18th June, 2010.
13. A three Judge Bench of the Supreme Court in Vijaysingh 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.
14. Thereafter, Hon''ble Supreme Court in Man Bahadur v. State of H.P. 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.
15. Following the above decision, the Division Bench of the High Court of Himachal Pradesh in State of H.P. v. Fateh Singh, Latest HLJ 2009 (H.P.) 684 has also taken the similar above view.
16. 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 before a Magistrate or a Gazetted Officer or by the 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 no such endeavour was made on the part of PW-9 SI Lal Singh 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).
17. Besides above, we also notice that the sample of contraband goods was sent to FSL Junga and report of FSL Junga Ext.PV has been tendered in evidence. Seals on the sample had been tallied with the specimen seals having been sent on form NCB-I in triplicate. The scrutiny of NCB-I in triplicate goes to show that facsimile of seals ''T'' and ''M'' do not stand affixed on this document in its proper perspective. Neither facsimile of seals ''T'' and ''M'' are legible or visible nor they stand properly affixed in order to facilitate its comparison with the seals on the sample. Therefore, it goes to show that necessary comparison of the seals on the sample with the specimen seals on NCB-I in triplicate could not have been possible. In this view of the matter, it can be said that there is lack of reliable link evidence on record showing that the sample in question belonged to the recovered stuff.
18. In view of the aforesaid circumstances, the learned Special Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also the prosecution has failed to bring home the guilt to the respondent / accused.
19. 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.
