STATE OF HIMACHAL PRADESH Vs. NAGINDER PAL

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 4.10.1999 passed by the learned Special Judge, Kullu, H.P. in Sessions Trial No. 42 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

(2.) THE prosecution story in brief is that Inspector Jagdish Chand (PW -11) at the relevant time was posted as S.H.O. in Police Station, Banjar. On 19.8.1998 he received secret information in the police station through telephone that two persons are coming in a bus from Bathahar side and it is suspected that these persons are carrying charas. PW -11 made entry in the daily diary (Ext. PA) and also sent the information to Superintendent of Police, Kullu vide Ext. PB. Thereafter he constituted a raiding party with other police officials and went to the bus stand at Banjar. Two independent witnesses Sh. Dyal Singh and Sh. Jhabe Ram were also associated during investigation. At about 3.30 p.m. one bus came from Bathahar side. Two persons came out of the bus out of whom one was empty handed. The accused present in the Court disclosed his name as Naginder Pal and the other person was Joginder Pal. He took both these persons to the rain shelter. There he told accused Naginder Pal vide memo (Ext. PW 8/A) that he suspected him of carrying charas and gave him an option whether the accused wanted to be searched before a Magistrate or a Gazetted Officer or police officials. The accused consented to be searched by the police officials. Thereafter the police officials gave their search to the accused. The accused was thereafter searched and on his personal search under his trousers one polythene bag was found tied to his leg. When this bag was opened it was found to be containing charas which on weighment was found to be one kilogram. Two samples of 25 grams each were drawn and were sealed separately and the remaining quantity of charas was also sealed separately. The seal was given to Dyal Singh witness. The accused was informed of the grounds of arrest and then arrested. Ruka was sent for the registration of the case. Site plan was prepared on the spot. After completing other codal formalities on the spot witness returned to the police station where he deposited the case property with the MHC. On the next day one of the samples was sent to C.T.L. Kandaghat and vide report (Ext. PW 11/D) it was found that the sample was of charas and resin content was 33.03%. On this basis the accused was charged with having committed the offence aforesaid and was tried.

(3.) ADMITTEDLY this is a case where the recovery is a result of the personal search of the accused. The provisions of Section 50 of the Act are therefore applicable. A perusal of the search memo (Ext. PW 8/A) shows that the accused was given a choice as to whether he wanted to get himself searched in the presence of a Magistrate or a Gazetted Officer or by police officials. This has also been stated by the Investigating Officer (PW -11). PW -10 however states that the option given was whether the accused wanted to be searched before the S.H.O. or a Magistrate and does not talk about a Gazetted Officer. Assuming that Ext. PW 8/A is the option given to the accused the question which arises is whether this is sufficient compliance with Section 50 of the Act or not.