Himachal Pradesh High Court
State Of Himachal Pradesh vs Sadiq Mohd on 8 January, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 375/2010
Decided on: 8.1.2015
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State of Himachal Pradesh ...Appellant
Versus
Sadiq Mohd. ...Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1
For the Appellant: Mr. M.A. Khan, Additional Advocate
General.
For the Respondent: Mr. Devender Sharma, Advocate.
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Per Justice Rajiv Sharma, Judge (Oral)
This appeal is instituted against judgment dated 2.3.2010 rendered by learned Special Judge, Chamba, District Chamba, Himachal Pradesh in Sessions Trial No. 33 of 2009, whereby respondent-accused, who was charged with and tried for offences under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, has been acquitted.
2. Case of the prosecution, in a nutshell, is that on 10.7.2009, ASI Yudhbir Singh (PW-10) alongwith other police officials was present at Khairi Bridge, Banikhet. Accused came from Khairi side. He tried to turn back. He was apprehended. Option was given to 1 Whether reporters of the local papers may be allowed to see the judgment? yes. ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 2 the accused vide Ext. PW2/A. Personal search was also given to the accused by ASI Yudhbir Singh. Personal search of accused was thereafter conducted and a polythene envelope of blue colour was .
recovered from his possession. It was containing Charas in the shape of small balls and sticks, which was found to be 1.350 kg. Sealing process was completed at the spot. Contraband was taken into possession vide Seizure memo Ext. P-2/D. Specimen of the seal used was taken separately vide Ext PW-2/D. NCB form Ext. PW8/C was filled in triplicate and impression of seal was also affixed on the same. Site Plan Ext. PW-10/A was prepared and Ruka Ext. PW-10/B was sent to police station Dalhausie through Anuj Kumar (PW-3). FIR Ext. PW-8/A was registered. Case property alongwith NCB form and sample seals was produced before HC Bhajan Singh by ASI Yudhbir Singh. All the parcels were sealed with seal 'B'. Case property was deposited in the Malkhana registere vide Ext PW-8/D. Parcels alongwith NCB form and sample seals were sent to FSL Junga on 12.7.2009. Report of Chemical Examiner is Ext. PX. Special report Ext. PW-7/B was prepared and sent to Superintendent of Police, Chamba. Challan was put up in the Court after completing all codal formalities.
3. Prosecution examined as many as ten witnesses to prove its case against accused. Accused was examined under Section 313 of Criminal Procedure Code. He has denied the case of the prosecution. Accused was acquitted by the trial Court on 2.3.2010. ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 3
4. Mr. M.A. Khan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused.
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5. Mr. Devender Sharma, Advocate has supported the judgment passed by learned trial Court.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Sanjiv Bhatia has prepared challan. PW-2 Roop Singh has deposed that on 7.10.2009, he alongwith other police officials was present at Khairi Bridge Banikhet. Again stated that it was 10.7.2009 and the time was 1.00 AM. In the meantime, one person came from Khairi side. On seeing the police, he tried to turn back. He was apprehended. Person had concealed something inside his shirt because he was putting his hands on his stomach and he was trying to conceal something. He disclosed his identity. ASI Yudhbir Singh gave his personal search to the accused and asked the accused whether he wanted to give search to a Gazetted Officer or a Magistrate or police. Accused consented to be searched by the police. Search of accused was conducted. One polythene envelope was found concealed inside the shirt by accused. On opening the polythene envelope, Charas in the shape of balls and sticks was found. Recovered Charas was weighed and found to be 1.350 kg. Seizure and sampling process was completed at the spot. NCB form was filled in. Seizure memo Ext PW-2/D was prepared. He admitted in his cross examination that ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 4 towards Pathankot side there was a petrol pump which remains open during night hours also.
8. PW-3 Constable Anuj Kumar deposed the manner in .
which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. According to him also, accused has concealed something. It was found to be Charas. NCB form was filled. Ruka Mark 'A' was given at 2.10 AM, which was delivered by him in police station at 3 AM. In his cross-examination, he has admitted that in front of PP Banikhet there is a Cantonment barrier which remains open throughout night and 2-3 persons remain present there. There were 2-3 shops nearby the barrier but same were closed during night.
9. PW-4 Constable Rajesh Kumar deposed that on 10.7.2009, ASI Yudhbir Singh produced three parcels before MHC Bhajan Singh. Bhajan Singh resealed the same. .
10. PW-5 is a formal witness.
11. PW-6 Kamal Kumar deposed that Bhajan Singh handed over to him three sealed parcels of this case, specimen seal impression, one sealed envelope vide RC No. 106/2009 for taking to FSL Junga. He took the same to FSL Junga.
12. PW-7 is a formal witness.
13. PW-8 Bhajan Singh deposed that on 10.7.2009, Anuj Kumar brought a Ruka at 3.00 AM. He recorded FIR on the basis of Ruka vide Ex. PW-8/A. On 10.7.2009 at 10 AM, case property was produced before him by ASI Yudhbir Singh. He resealed the same. ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 5 Case property was entered in the Malkhana register on 12.7.2009. Three parcels were sent for chemical examination alongwith docket vide RC No. 106/2009 dated 12.7.2009 to FSL Junga.
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14. PW-9 is a formal witness.
15. PW-10 Yudhbir Singh deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. Accused was given option whether he wanted to give search to a Magistrate, Gazetted Officer or the police and that it was his legal right, vide memo Ext. PW-2/A. However, accused consented to be searched by police itself. Search of the accused was conducted. A polythene envelope of blue colour was taken out which was found containing Charas in the shape of small balls and sticks. It weighed 1.350 kgs. Charas was taken into possession vide memo Ext. PW-2/D. Sampling process was completed at the spot. Ruka was prepared and sent through Constable Anuj Kumar. In his cross-examination, he has admitted that in front of PP Banikhet, there is cantonment barrier, which remains functional throughout night. They went to the spot by taking lift from private vehicle. He admitted that there is a petrol pump on Pathankot road. It remains open during night hours also. He did not remember whether in Ext. PW-2/A, he has told the accused that it was his legal right to be searched before a Gazetted Officer or a Magistrate or police. Accused was apprehended at 1.00 AM on 10.7.2009. He was carrying polythene envelope. It was sealed at the spot. ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 6
16. It has come in the statement of PW-1 that from Khairi Bridge, one road goes to Pathankot, one to Chamba, one to Khairi and other to Banikhet Bazaar. He has admitted that towards Pathankot road, there .
was a petrol pump at five minutes walk, which remains open during night hours. PW-3 Anuj Kumar has also admitted that there was a petrol pump at a distance of five minutes walk towards Pathankot road from the spot. PW-10 Yudhbir Singh has also admitted that in front of police post Banikhet, there was cantonment barrier which remains functional throughout night. He also admitted that petrol pump is nearby Khairi Bridge. The police has not joined any independent witnesses though they were available at the barrier and also at petrol pump at the time when accused was apprehended and also at the time of search and seizure of contraband.
17. Charas was allegedly recovered from the person of accused. Thus, section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 was required to be followed scrupulously. We have gone through the option given by the accused vide Ext. PW-2/A. Accused was only to be asked whether he wanted to be searched before a Gazetted Officer or Magistrate. However, in Ext. PW-2/A, 'police' was also mentioned. In view of this, accused has given his option to be searched by police. Police was also liable to specifically apprise the accused of his legal right to be searched before a Gazetted Officer or magistrate. It is not so stated in Ext. PW-2/A. PW-10 Yudhbir Singh has tried to explain that he has asked the accused that he has a legal right to be searched before a Magistrate or a Gazetted Officer. However, his statement has ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 7 not been corroborated by PW-2 Roop Singh and PW-3 Anuj Kumar. They have not stated that accused was told that he has a legal right to be searched before a Gazetted Officer or a Magistrate. Police has .
neither associated independent witnesses nor have complied with the mandatory provisions of Section 50 of the Act.
18. Their lordships of the Hon'ble Supreme Court in the case of Man Bahadur vrs. State of Himachal Pradesh, reported in (2008) 16 SCC 398, have held that when the I.O. only giving option to appellant to be searched by the I.O. himself or in presence of Magistrate or Gazetted Officer, Section 50 was not substantially complied with. Their lordships have held as under:
"(5) In this case it is accepted at the Bar that the search memo or any other document do not show that the appellant was made aware of his right to be searched before a gazetted officer or a Magistrate.
(6) From the deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had merely given an option to the appellant to be searched either by himself or in presence of a Magistrate or a gazetted Officer.
(7) No evidence has been adduced to show that the appellant was communicated of his right either to be searched in presence of a Magistrate or a gazetted officer on the one hand and by an empowered officer on the other.
(8) In the instant case, there has been even no substantial compliance of Section 50 of the N.D.P.S. Act.
(9) For the reasons aforementioned, the impugned judgment of conviction and sentence cannot be upheld. It is set aside accordingly. The appeal is allowed."::: Downloaded on - 15/04/2017 17:31:41 :::HCHP 8
19. Their lordships of the Hon'ble Supreme Court in the case of Ashok Kumar Sharma vrs. State of Rajasthan, reported in (2013) 2 SCC 67, have held that the empowered officer is legally .
obliged to inform suspect/accused of his right under Section 50 to be searched before a Gazetted Officer or a Magistrate and it is only if suspect/accused does not choose to exercise his said right, then empowered officer can conduct search of person of suspect/accused himself. Their lordships have further held that Section 50 of the Act is mandatory and non-compliance with said mandatory procedure vitiates entire proceedings initiated against the accused and entitles him to acquittal.
20. Accordingly, prosecution has failed to prove case against accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. Consequently, appeal is dismissed. Bail bonds of accused are discharged.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge January 8, 2015 vikrant ::: Downloaded on - 15/04/2017 17:31:41 :::HCHP