Himachal Pradesh High Court
State Of Himachal Pradesh vs Som Nath @ Babi And Another on 25 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 4205 of 2013.
Reserved on: April 23, 2016.
Decided on: April 25, 2016.
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State of Himachal Pradesh ......Appellant.
Versus
Som Nath @ Babi and another .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
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Whether approved for reporting? 1 Yes.
For the appellant: Mr. V.S.Chauhan, Addl. AG.
For the respondents: Mr. Devinder K. Sharma, Advocate for respondent No.1.
Mr. Pawanish Shukla, Advocate, for respondent No. 2.
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Justice Rajiv Sharma, J.
This appeal is instituted at the instance of the State against the judgment dated 15.3.2013, rendered by the learned Special Judge P.O. (FTC), Mandi, H.P., in Sessions trial No. 29/2010, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted.
2. The case of the prosecution, in a nut shell, is that on 1.1.2010, Insp./SHO Madan Dhiman (PW-8) along with HC Girdhari Lal (PW-4), HC Rajinder Kumar, HHC Ranvir Singh, Const. Rakesh Kumar (PW-5) and Const. Shankar Kumar was on patrolling duty in their official vehicle bearing registration No. HP-31B-0190 vide rapat No. 5 Ext. PW-8/A at about 3:30 AM. The police party was on patrolling duty via Purana Bazar Handeti. At about 4:00 AM, when they reached at place called Tail Control, 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 2Sundernagar, in the meantime, two persons came on foot from Saini Filling Station towards bus stand, who on seeing the vehicle of the police started .
running back. They were apprehended. They disclosed their identity.
Both the accused were apprised of their legal right to be searched either before a Magistrate or before a Gazetted Officer vide memo Ext. PW-4/A in the presence of witnesses HC Rajender Kumar and Girdhari Lal. Both the accused gave their willingness to be searched by the police. Police officials of also gave their personal search to the accused vide memo Ext. PW-4/B. Thereafter, search of accused Som Nath was carried out. Two packets rt wrapped with yellow colour tape with the calf of both the legs were found.
Similarly, search of accused Narender Pal was carried out. Black coloured substance in the shape of sticks wrapped in a piece of newspaper kept around his vest with the help of yellow colour tape was found. It weighed 3 kg. 200 grams. NCB-I form in triplicate Ext. PW-8/B was filled in on the spot from column No. 1 to 8 and seal impression "A" was embossed over it.
IO prepared rukka Ext. PW-8/C and sent the same to the Police Station through Const. Rakesh Kumar at about 5:30 AM, on the basis of which, FIR Ext. PW-6/A was registered. The case property was deposited in the malkhana. The case property was sent to FSL, Junga through PW-3 Const.
Vyas Dev. The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as eight witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. The learned ::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 3 trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal.
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4. Mr. V.S.Chauhan, Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, M/S Devinder K. Sharma and Pawanish Shukla, Advocates for the respective accused have supported the judgment of the learned trial Court dated 15.3.2013.
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5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. rt PW-3 Const. Vyas Dev testified that he took the case property on 1.1.2010 and deposited the same at FSL, Junga on 2.1.2010.
7. PW-4 HC Girdhari Lal testified that he along with other police officials was on patrolling duty. At about 4:00 AM, when they reached near Tail Control, Sundernagar, in the meantime, two persons came on foot from Saini Filling Station towards bus stand, who on seeing the vehicle of the police started running back. They were apprehended. They disclosed their identity. No persons were available to be associated as witnesses in the investigation. Both the accused were apprised of their legal right to be searched either before a Magistrate or before a Gazetted Officer vide memo Ext. PW-4/A in the presence of witnesses HC Rajender Kumar and Girdhari Lal. Both the accused gave their willingness to be searched by the police. Police officials also gave their personal search to the accused vide memo Ext. PW-4/B. Thereafter, personal search of accused Som Nath was carried out. Two packets wrapped with yellow colour tape with the calf of both the legs were found. Similarly, personal search of accused Narender ::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 4 Pal was carried out. Black coloured substance in the shape of sticks wrapped in a piece of newspaper kept around his vest with the help of .
yellow colour tape was found. It was found to be charas. It weighed 3 kg.
200 grams. The recovered substance along with wrappers and newspaper pieces was kept in cloth parcels and sealed with seal impression "A" at 10 places. NCB-I form in triplicate Ext. PW-8/B was filled in on the spot from column No. 1 to 8 and seal impression "A" was embossed over it. Other of formalities were completed on the spot. IO prepared rukka and sent the same to the Police Station through Const. Rakesh Kumar. I.O. prepared the site plan.
rt The case property was produced before the Court while examining this witness. In his cross-examination, he admitted that the place where the accused have been allegedly intercepted was surrounded by many hotels and shops and a petrol pump also existed on the spot. The recovery was made from the National Highway. Nearby to the place, at a distance of 50 meters, there is a control gate of BBMB canal. He also admitted that there was a control room by the side of control gate where a guard remains on duty 24 hours. He also admitted that the petrol pump also remains open for 24 hours. He also admitted that there existed Dhabas at a distance of 100 meters from the spot. He admitted that in his statement under Section 161 Cr.P.C., he has not stated to the I.O. that while giving option to the accused, they were apprised that they have right to be searched either before the Magistrate or a Gazetted Officer. He also admitted that this fact was told by him in the Court in his statement only for the first time. He also admitted that no efforts were made to call for the witnesses from the bus stand Sundernagar.
::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 58. PW-5 Const. Rakesh Kumar also deposed the manner in which the accused were apprehended, their personal search was carried out, the .
contraband was recovered and the codal formalities were completed on the spot. Rukka was prepared and handed over to him to be delivered at Police Station BSL Colony, Sundernagar. He delivered the same at 6:00 AM. In his cross-examination, he admitted that the charas recovered from the accused persons was not weighed separately. He could not tell as to how of much charas was possessed by each accused. However, he admitted that the buses, trucks and other vehicles remain plying on the National rt Highway 24 hours.
9. PW-6 HC Durga Dass, deposed that he was posted as MHC, Police Station BSL Colony, Sundernagar. On 1.1.2010, rukka scribed by SHO Madan Dhiman was handed over to him by Const. Rakesh Kumar.
He made endorsement over the same. On 1.1.2010, SHO Madan Dhiman deposited with him the case property. It was sent to FSL, Junga through PW-3 Const. Vyas Dev vide RC No. 1/2010.
10. PW-8 SHO Madan Dhiman also deposed the manner in which the accused were apprehended, their personal search was carried out, the contraband was recovered and the codal formalities were completed on the spot. In his cross-examination, he deposed that he has written in the rukka that accused persons were apprised of their legal right to be searched before some Gazetted Officer or Magistrate. (Confronted with rukka Ext. PW-8/C wherein it is not so recorded.) He also admitted that there was Hotel Lake View near the alleged place of occurrence at about 50 meters. He had not called any person from the Lake View hotel to become ::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 6 a witness to the proceedings. Bus-stand Sundernagar is about 300 meters away from the spot. He admitted that the shops at bus stand remain open .
throughout the night, including the office of HRTC. He did not try to call any witness from the bus stand, Sundernagar. Petrol pump was also located near the spot. He had not weighed the recovered substance separately recovered from the accused. Sabji Mandi was also at a distance of about half a kilometer from the spot.
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11. The accused were apprehended at 4:00 AM near Tail Control, Sundernagar. The contraband was recovered from their person. The case rt of the prosecution is that the I.O. had sought the consent of the accused as to whether they wanted to be searched before the Gazetted Officer or Magistrate. The consent memo is Ext. PW-4/A. The I.O. was required to seek the individual consent from each of the accused. It was prepared in the presence of HC Rajinder Kumar and Const. Girdhari Lal. HC Rajinder Kumar has not put his signatures on consent memo Ext. PW-4/A.
12. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345, have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their lordships have held as under:
::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 7"15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have .
application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs,Section 50 of the NDPS Act will have application.
16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have of stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally rt communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand. Respondent No.1 Parmanand did not sign.
17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval.
18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed ::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 8 that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the .
respondents is, therefore, vitiated and resultantly their conviction is also vitiated.
19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS of Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before rt PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated.
20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed."
13. PW-4 HC Girdhari Lal, in his cross-examination, has admitted that the place where the accused have been allegedly intercepted was surrounded with many hotels and shops and petrol pump also exists on the spot. Nearby to the place of occurrence, at a distance of 50 meters, there was a control gate of BBMB canal. He also admitted that there was a control room by the side of control gate, where a guard remains on duty 24 ::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 9 hours. He also admitted that the petrol pump also remains open for 24 hours and Dhabas existed at the distance of 100 meters from the spot. He .
also admitted that no efforts were made to call for the witnesses from the bus stand Sundernagar, though it was at a distance of 500 metres from the spot. PW-8 SHO Madan Dhiman has also admitted that there was Hotel Lake View near the alleged place of occurrence at a distance of about 50 metres. He had not called any person from the Lake View hotel to become of a witness to the proceedings. Bus-stand Sundernagar was about 300 metres away from the spot. He admitted that the shops at bus stand rt remain open throughout the night, including the office of HRTC. He had not tried to call any witness from the bus stand, Sundernagar. Petrol pump was also located nearby the place where the accused were apprehended. The place of occurrence was neither isolated nor desolate.
The I.O. ought to have associated independent witnesses either by calling the persons from the bus stand or from the nearby locality in order to give credence to the search, seizure and sealing proceedings. The place where the accused were apprehended was on the National Highway. The police could always request the occupiers/passengers of the vehicles to be associated as witnesses. The non-joinder of the independent witnesses, though available, casts suspicion on the prosecution story.
14. Thus, the prosecution has failed to prove the case against the accused under Sections 20 & 29 of the ND & PS Act that the charas was recovered from the accused persons. This Court has no occasion to ::: Downloaded on - 15/04/2017 20:09:56 :::HCHP 10 interfere with the well reasoned judgment of the learned trial Court dated 15.3.2013. The bail bonds are discharged.
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15. Accordingly, there is no merit in this appeal and the same is dismissed.
( Rajiv Sharma ), Judge.
April 25, 2016, ( Ajay Mohan Goel ),
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(karan) Judge.
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