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
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 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 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 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. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No.635/2015
Decided on: 1.1.2016
State of Himachal Pradesh …… Appellant
Versus
Kamal Kishore ……..Respondent
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Sureshwar Thakur, Judge
Citation;2016 CRLJ 1021
This appeal has been instituted against Judgment dated
3.7.2015 rendered by learned Special Judge (II), Mandi, District
Mandi, Himachal Pradesh in Session Trial No. 15/2011,
whereby respondent-accused (hereinafter referred to as
'accused' for convenience sake), who was charged with and tried
for offence under Section 20 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (hereinafter referred to as
'Act' for convenience sake) has been acquitted.
2. Case of the prosecution, in a nutshell, is that on
9.1.2010, ASI Chet Ram, C. Sanjeev Kumar, HHC Prabh Dayal,
C. Vipin Kumar, C. Sanjeev Kumar and HHG Narender Kumar
were present at Pulgharat where Naka was laid. At about 9.20
pm, one Yog Raj, councilor of MC Mandi came there. All of a
sudden, the accused came at the spot on foot. He tried to run
away. He was nabbed. He was told about his legal right to be
searched before a gazetted officer or a Magistrate and consent
was given by the accused to be searched by police officials.
Police officials gave their personal search to the accused and
thereafter personal search of the accused was conducted. In
right front pocket of accused, there was polythene bag. In the
polythene bag, there were grapes and Pappad shaped cannabis.
This cannabis was weighed and it was found to be 190 grams. It
was kept in same polythene envelope and sealed at the spot.
Sample seal was taken separately. Seal, after use, was given to
the independent witness Yog Raj. NCB form in triplicate was
filled at the spot. Rukka was sent to the Police Station. FIR was
registered. Investigation was completed and Challan was put up
in the Court after completing all codal formalities.
3. Prosecution has examined as many as 10 witnesses
to prove its case against the accused. Accused was also
examined under Section 313 CrPC. He pleaded innocence.
Learned trial Court acquitted the accused. Hence, this appeal.
4. Mr. P.M. Negi, Deputy Advocate General has
vehemently argued that the prosecution has proved its case
against the accused.
5. We have heard the learned counsel for the appellant
and also gone through the record carefully.
6. According to PW-8 HC Sanjeev Kumar, accused was
apprised by ASI regarding his legal right to be searched before a
gazetted officer or a Magistrate. However, as per memo Ext. PW-
8/A, option was also given to the accused to be searched before
the police officials. This fact is mentioned in Rukka Ext. PW-
10/A. We have seen Ext. PW-10/A with the assistance of record
produced before us by the State. It is specifically mentioned in
the Rukka that option was given to the accused to be searched
before a Gazetted Officer, Magistrate or Police. There are only
two options provided under Section 50 of the Narcotic Drugs &
Psychotropic Substances Act, 1985. There is no third option.
7. 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
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 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 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 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.”
8. Accused is only to be given option to be searched by
a Gazetted Officer or a Magistrate. Since Section 50 of the Act,
has been violated, as such entire trial was vitiated.
9. According to PW-8 HC Sanjeev Kumar, police
officials did not check the vehicles on the way from police
station upto Naka. PW-10 Chet Singh deposed that vehicles
were checked. According to PW-8 Sanjeev Kumar, Naka was laid
at about 4.00 pm whereas PW-9 Yog Raj deposed that Naka was
laid at 8.30 pm. PW-10 Chet Singh has deposed that PW-8
Sanjeev Kumar has taken Rukka to the Police Station from the
spot and he has not come back to the spot. PW-9 Yog Raj
deposed that HC Sanjeev Kumar was present at the time of
preparation of documents and after completion of investigation
he had gone with other police officials and accused to the Police
Station. Original seal was also not produced in this case to
verify the sample seal.
10. Thus, the prosecution has failed to prove its case
against the accused. There is no occasion for us to interfere
with the well reasoned judgment of the learned trial Court dated
3.7.2015.
11. There is no merit in the present appeal and the
same is dismissed, so also the pending applications, if any.
(Rajiv Sharma)
Judge
(Sureshwar Thakur)
Judge
January 1, 2016
No comments:
Post a Comment