Himachal Pradesh High Court
State Of Himachal Pradesh vs Sardool Singh on 28 April, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 297/2011
Reserved on: April 27, 2016
Decided on: April 28, 2016
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State of Himachal Pradesh ...... Appellant
Versus
Sardool Singh ........Respondent
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Coram:
of
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge
Whether approved for reporting? 1 yes.
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For the appellant : Mr. Parmod Thakur, Additional
Advocate General.
For the respondent : Mr. Bhupinder Ahuja, Advocate.
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Per Rajiv Sharma, Judge:
State has come in appeal against Judgment dated 18.3.2011 rendered by the learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No. 40 of 2010, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake) who was charged with and tried for offence under Section 18(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake) has been acquitted by the learned trial Court.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 22. Case of the prosecution, in a nutshell, is that on 17.1.2010 at about 4.30 PM, ASI Chint Ram alongwith other police officials was present at Zero Point Dhaugi road in .
connection with patrolling duty. They saw a person coming on foot from Sainj side on the road. On seeing the police, said person became perplexed and tried to move towards Dhaugi road. On the basis of suspicion the person was nabbed by the of police party and his identity was ascertained. The place where accused was nabbed was an isolated place and no person was rt available to be joined as independent witness, so ASI Chint Ram associated HC Narian Chand and Sohan Lal as witnesses.
Consent of accused was taken for his personal search by the police officer or by Magistrate or a Gazetted officer. Accused consented to be searched by the police present on the spot.
Personal search of the accused was carried out. Police party found one polythene envelope inside the underwear of the accused. Contents of the polythene envelope were checked. IO found the same to be Opium. It weighed 1 kg. Recovered contraband was put in the polythene envelope and wrapped with white coloured cloth. 'Pullinda' was sealed with six seal impressions of 'H'. The IO filled up NCB form in triplicate. Seal after use and after taking specimen was entrusted to Constable Sohan Lal. 'Pullinda' was taken into possession.
Rukka was prepared and sent to the Police Station through ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 3 Constable Sohan Lal, on the basis of which FIR was registered.
Investigation was completed. Challan was put up in the Court after completing all codal formalities.
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3. Prosecution examined as many as nine witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the allegations.
Learned trial Court acquitted the accused. Hence, this appeal of by the State.
4. Mr. Parmod Thakur, Additional Advocate General, rt has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. Bhupinder Ahuja, Advocate, has supported the judgment rendered by the learned trial Court.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Constable Sohan Lal testified that he was present alongwith other police officials at Zero Point Dhaugi on 17.1.2010 at about 4 PM. Accused came from the side of Sainj.
On seeing the police, he got frightened. He tried to run away.
He was apprehended. No independent witness was available as it was a lonely place. Accused was apprised that the police suspected that he was carrying some contraband and asked the accused whether he wanted to be searched before a gazetted officer or a Magistrate or by the police. Accused ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 4 consented to give his search to the police. Consent memo Ext.
PW-1/A was prepared to this effect. ASI Chint Ram gave personal search to the accused in his presence and in the .
presence of Narian Chand. Accused was thereafter searched by the ASI Chint Ram. One polythene envelope was found inside his underwear. It was found to be containing Opium. It weighed 1 kg. It was put back in the same envelope and was of sealed in a parcel with six impressions of seal 'H'. Form NCB-I in triplicate was filed. Sample seal was taken separately on a piece of cloth.
rt Sealing proceedings were completed on the spot. In his cross-examination, he admitted that muck was being disposed/dumped at a site which was 150 metres from Zero Point. He also admitted that workers were available 24 hours. Vehicles also plied continuously.
8. PW-2 ASI Chint Ram deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. NCB form in triplicate was filled in. Rukka was prepared and handed over to Constable Sohan Lal with the direction to carry it to the Police Station. In his cross-examination, he has admitted that the dumping site was located at about 200-300 metres from Zero Point.
9. PW-4 HC Chaman Lal testified that Inspector/ SHO handed over one parcel sealed with six seal impressions ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 5 of 'H' and resealed with three impressions of seal 'S' alongwith sample seals 'S' and 'H' and NCB form on 17.1.2010. He entered the same at Sr. No. 118/10. Case property was sent .
on 19.1.2010 to FSL Junga vide RC No. 15/10 through HHC Bhag Chand.
10. PW-6 Bhag Chand deposed that he deposited the case property with the FSL Junga on 21.1.2010.
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11. PW-9 Prem Das (retired inspector), the then SHO deposed that Chint Ram handed over one parcel sealed with rt six seal impressions of 'H', NCB form in triplicate, sample seal 'H' and copy of FIR. He resealed the parcel with three impressions of seal 'S'. He filled in column Nos. 9 to 11 of NCB form Ext. PW-2/A. Sample seal was taken separately on a piece of cloth. He handed over articles to MHC Chaman Lal.
12. PW-1 Sohan Lal has deposed that workers used to work near the place of recovery, for 24 hours. Many vehicles also plied continuously there. Despite that, no independent witness has been associated to give credence to the search, seizure and sealing proceedings. The place, where accused was apprehended was neither a secluded place nor an isolated place.
13. Consent memo is Ext. PW-1/A. Accused has not been apprised that he had a legal right to be searched before a gazetted officer or a Magistrate. Accused has been asked ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 6 whether he wanted to be searched before a gazetted officer or a Magistrate or by the police. There are only two options which are required to be given by the police to the accused that .
whether he wants to be searched before a gazetted officer or a Magistrate. There is no third option. In the present case also, accused was given option to give search before the police officer besides a gazetted officer or a Magistrate. Thus, there is of non-compliance of Section 50 of the Act. Section 50 of the Act is mandatory in nature. Accused was required to be given only rt two options. There is no option to be searched by police officer.
14. 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:
"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 ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 7 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 stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer of 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 rt inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally 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.
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 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 ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP 8 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 of is vitiated.
20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. rt 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."
15. Thus, the prosecution has failed to prove its case against the accused beyond reasonable shadow of doubt.
There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court.
16. Accordingly, the appeal fails and is dismissed. Bail bonds of the accused are discharged.
(Rajiv Sharma) Judge (Chander Bhusan Barowalia) Judge April 28, 2016 (vikrant) ::: Downloaded on - 15/04/2017 20:12:30 :::HCHP