For an offence, which is alleged to have been committed on 14.3.1998, accused was put trial. In terms of judgment dated 18.9.2000 passed by learned Sessions Judge, Bilaspur, in Sessions Trial No. 5 of 1998 titled as State of HP versus Kuldeep Singh, accused stands acquitted of the charged offence.
2. It is the case of the prosecution that Kashmiru Ram (PW9), SHO, Police Station Kot-Kehloor was on patrolling duty in village Majari along with Prakash Chand (PW1), Dhani Ram, Rajesh, Surjan Singh and driver Dila Ram. At about4.15 PM they were standing near the tube-well of Jasbir Singh (not examined). They saw the accused coming on motorcycle No. PB-09A-9253. Kashmiru Ram stopped the motorcycle and verified the documents of the vehicle. Accused disclosed his name to be Kuldeep Singh of village Sangojla, Kapurthala (Punjab). Suspecting that accused may be carrying some contraband substance, Kashmiru Ram (PW9) asked the accused to give his search. Accused was informed of his right that he could be searched before a Gazetted Officer or police official. Accused expressed his willingness, in writing (Ex. PA) of being searched by police official. Search was carried out. From the polythene bag found in the left pocket of the jacket worn by the accused, contraband substance which appeared to be opium was found. On weighing it was found to be 60 grams. One sample of 25 grams was taken and remaining opium was kept in a separate parcel. Sample and the parcel were sealed with seal impression A. Seal was handed over to an independent witness Natha Singh (PW2). Search was carried out in presence of another independent witness Banarasi Dass (PW3) who also was present at the spot. Accused was informed of his grounds of arrest. Rukka (Ex.PL) was sent through constable Surjan Singh (not examined) to the police station, on the basis of which FIR No. 36/98 (Ex. PM) dated 14.3.1998 was registered at Police Station Kot Kehloor under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Police sent special report (Ex. PK/1) to superior officer through Constable Kanshi Ram. Sealed parcels were deposited in the Malkhana and further sent to the concerned laboratory and report of the chemical examiner (Ex. PP) obtained by police. With the completion of the investigation, challan was presented in the court for trial.
3. Accused was charged for having committed an offence punishable under Section 18 of the Act to which he did not plead guilt and claimed trial.
4. In order to prove its case, prosecution examined as many as 9 witnesses and statement of accused under Section 313, Cr.P.C. was also recorded.
5. The trial Court acquitted the accused. Hence the present appeal.
6. Accused was acquitted on the grounds that prosecution had not complied with the mandatory provisions of Section 50 of the Act; independent witnesses did not support the prosecution and statements of the police officials do not inspire confidence. We have minutely perused the record. We are in total agreement with the findings returned by the Court below.
7. PW9 simply states that I suspected that the accused was carrying some contraband and as such I asked him that whether he wanted to be searched before a Gazetted Officer or he wanted to be searched by the police. He was himself the officer who carried out the search. According to him the accused had given his consent of being searched before the police official. Now importantly neither in his statement nor in the consent memo (Ex. PA), it is mentioned that accused was appraised of his legal right of being searched by police official or before a Gazetted Officer or a Magistrate.
8. The Apex Court in case State of Punjab versus Baldev Singh, AIR 1999, SC 2378, has held that provisions of Section 50 of the Act are mandatory. It obliges the official concerned to inform the person to be searched of his legal right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate.
9. In Saiyad Mohd. Saiyad Umar Saiyad and others versus State of Gujrat, (1995)3 SCC 610, the Apex Court further held that if no evidence to the effect is given by Officer concerned, Court would assume that the person to be searched was in fact not informed of the said protection and that provision of illicit contraband carried by the accused cannot be said to be established.
10. In Manohar Lal versus State of Rajasthan, (1996)11 SCC 391, and in Raghbir Singh versus State of Haryana, (1996)2 SCC 201, the Honble Apex Court has further held that the choice has to be made by the police officer making the search and not by the accused. This view has subsequently been reiterated by the Apex Court in Ajmer Singh versus State of Haryana, (2010)3 SCC 746 wherein it has been held that 14. The object, purpose and scope of Section 50 of the Act were the subject-matter of discussion in a number of decisions of this court. The Constitution Bench of five Judges of this Court in State of Punjab versus Baldev Singh after exhaustive consideration of the decisions of this court in Ali Mustaffa Abdul Rahman Moosa versus State of Kerala and Pooran Mal versus Director of Inspection ( Investigation), have concluded in para 57 ( Baldev Singh Case, SCC PP 208-09) :
(I) When search and seizure is to be conducted under the provisions of the Act, it is imperative for him to inform the person concerned of his right of being taken to the nearest gazetted officer or the nearest Magistrate for making search.
(II) Failure to inform the accused of such right would cause prejudice to an accused.
(III) That a search made by an empowered officer, on prior information, without informing the accused of such a right may not vitiate trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction is solely based on the possession of the illicit article recovered from his person, during such search.
(IV) The investigation agency must follow the procedure as envisaged by the statue scrupulously and failure to do so would lead to unfair trial contrary to the concept of justice.
(VII) That the question as to whether the safeguards provided in Section 50 of the Act have been duly observed would have to be determined by the court on the basis of the evidence at the trial and without giving an opportunity to the prosecution to establish the compliance of Section 50 of the Act would not be permissible as it would cut short a criminal trial.
(VI) That the non compliance of the procedure i.e. informing the accused of the right under sub-section (1) of Section 50 may render the recovery of contraband suspect the conviction and sentence of an accused bad and unsustainable in law.
(VII) The illicit article seized from the person of an accused during search conducted without complying with the procedure under Section 50, cannot be relied upon as evidence for proving the unlawful possession of the contraband. (Emphasis supplied)
11. Undisputedly the mandatory requirement of law has not been complied with in the instant case. Thus, no error is found in the judgment delivered by the trial court. In view of our aforesaid discussion we are not, in detail, going with the other grounds of acquittal.
12. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The Present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.