Punjab-Haryana High Court
Prempal vs State Of Haryana on 22 March, 2022
213
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M No. 11162 of 2022
Date of Decision: 22.03.2022
Prempal
.......... Petitioner
Versus
State of Haryana
.......... Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Present: Mr. Rakesh Gupta, Advocate,
for the petitioner.
Mr. Tanuj Sharma, Assistant Advocate General, Haryana
(Through Video Conferencing)
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SURESHWAR THAKUR, J. (ORAL)
1. The petitioner, by filing the present petition, cast under Section
439 Cr.P.C., seeks grant of regular bail in case FIR No. 461 of 23.11.2021,
which was registered against him, at Police Station Sadar Ballabgarh, District
Faridabad, constituting therein an offences under Section 22-C (Act No. 61)
of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The recovery, as, became effected from the alleged conscious,
and, exclusive possession of the bail applicant - petitioner, and, from the co-
accused, who was with him, at the crime site, rather was from a bag, kept on
the seat of the motor-cycle occupied at the relevant time by both the co-
accused. The weight of the seizure is of a commercial quantity, and,
thereupon the rigours cast under Section 37 of the NDPS Act, are applicable
thereon, and, hence prima facie, the prayer made in the petition, that the
petitioner be admitted to regular bail, cannot be accepted.
3. However, the learned counsel for the petitioner argues, that since
a joint consent carried in Annexure P-1, was conveyed to both the co-
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accused, thereupon, he argues that the asking for, by the Investigating
Officer, of a joint consent of both the accused, in purported compliance being
made to the mandate carried in Section 50 of the NDPS Act, is vitiated.
Consequently, he argues that the entire proceedings relating to preparation
and drawings of search / recovery memos concerned, at the crime site also
become vitiated, and, the bail petitioner is entitled to be admitted to bail.
4. In making the afore submission, the learned counsel for the
petitioner makes dependence upon a verdict, drawn on 28.02.2014, by the
Hon'ble Apex Court, in Criminal Appeal No. 78 of 2005, titled as "State of
Rajasthan Vs. Parmanand and another", especially to paragraphs-12 & 14
thereof, paras whereof are extracted hereinafter. However, the hereafter
extracted paragraph(s), as carried in judgment (supra), though makes a
striking conclusion, that the joint consent, as, become strived to be elicited
from the accused concerned, is completely void, and, is vitiated, as it does not
mete compliance to the mandate carried in Section 50 of the NDPS Act.
However, in paragraph-12 of the verdict (supra), a pivotal inference is
recorded, that in case the recovery is made not on any personal search, of the
accused concerned, rather being made by the IO concerned, thereupon the
mandate carried in Section 50 of the NDPS Act, would have no application,
and, nor would the seizure, as, made in consequence thereof become either
vitiated or void.
"12. 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
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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.
14. In our opinion, a joint communication of the right
available under Section 50(1) of the NDPS Act to the accused
would frustrate the very purport of Section 50.
Communication of the said right to the person who is about to
be searched is not an empty formality. It has a purpose. Most
of the offences under the NDPS Act carry stringent
punishment and, therefore, the prescribed procedure has to be
meticulously followed. These are minimum safeguards
available to an accused against the possibility of false
involvement. The communication of this right has to be clear,
unambiguous and individual. The accused must be made
aware of the existence of such a right. This right would be of
little significance if the beneficiary thereof is not able to
exercise it for want of knowledge about its existence. A joint
communication of the right may not be clear or unequivocal.
It may create confusion. It may result in diluting the right. We
are, therefore, of the view that the accused must be
individually informed that under Section 50(1) of the NDPS
Act, he has a right to be searched before a nearest gazetted
officer or before a nearest Magistrate. Similar view taken by
the Punjab & Haryana High Court in Paramjit Singh and the
Bombay High Court in Dharamveer Lekhram Sharma meets
with our approval. It bears repetition to state that on the
written communication of the right available under Section
50(1) of the NDPS Act, respondent No.2 Surajmal has signed
for himself and for respondent No.1 Parmanand. Respondent
No.1 Parmanand has not signed on it at all. He did not give
his independent consent. It is only to be presumed that he had
authorized respondent No.2 Surajmal to sign on his behalf
and convey his consent. Therefore, in our opinion, the right
has not been properly communicated to the respondents. The
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search of the bag of respondent No.1 Parnanand and search
of person of the respondents is, therefore, vitiated and
resultantly their conviction is also vitiated. "
5. Bearing in mind the above, and, also bearing in mind the factum,
that the apposite recovery did not become effected, from each of the accused,
upon, both keeping the seized contraband in their respective shirt pockets or
in each of their trouser pockets or from their respectively worn over clothes,
if any, and, nor when it is displayed in the FIR, that the seized contraband
was hidden or tethered onto body(ies) of the accused concerned,
whereas, thereupon only or when the afore incriminating circumstances
emerged, there would be a complete statutory necessity cast, upon the
Investigating Officer, to, serve upon each of the accused concerned, a separate
consent memo prior to his conducting the personal search of each of the
accused. However, since as afore stated, the seizure was not made upon the
personal search of each of the accused, being made by the IO concerned,
rather was made in a variant thereto manner, inasmuch as, it being made from
a bag kept on the seat of the motorcycle, occupied at the relevant time, hence
by both the accused. Therefore, in the wake of the afore manner of recovery
being effectuated, rather the mandate carried in paragraph-12, of the
judgment (supra) becomes aroused, and, its to be applied to the present
factual circumstances.
6. There is no merit in the petition, and, the same is dismissed.
7. Liberty is reserved to the petitioner to re-access the appropriate
Courts, in accordance with law.
8. Any observation made hereinabove is in respect of the disposal
of the instant petition(s), and, shall not be taken to be any observation on the
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merits of the case, and, nor the learned trial Judge concerned, shall be
influenced from the afore order, as and when the learned trial Judge
concerned, enters upon the trial, against the accused.
March 22, 2022 ( SURESHWAR THAKUR )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
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