Uttarakhand High Court

"State vs Bishan Ram" on 3 April, 2023

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                       03RD APRIL, 2023

             GOVERNMENT APPEAL NO. 417 of 2007


Between:

State of Uttarakhand                              .....Appellant

and

Bishan Ram                                      .....Respondent


Counsel for the Appellant     :     Mr. S.S. Adhikari,
                                    Deputy Advocate General
                                    with Mr. Balvinder Thind,
                                    Brief Holder.

Counsel for the Respondent    :    Mr. Rajat Mittal,
                                   Amicus Curiae.
Hon'ble Alok Kumar Verma, J.

Present Government Appeal has been filed against

the judgment dated 25.05.2004, passed by learned Sessions

Judge, Bageshwar in Special Sessions Trial No. 8 of 2002,

"State Vs. Bishan Ram", by which, the respondent - accused

has been acquitted of the charge under Section 20 (b) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (in

short " Act, 1985").

2. Briefly stated the prosecution case as it emerges

from re-appreciation of the evidence on record that on

21.02.2002, Inspector - Jagdish Pal (PW 2), SSI Harendra

Singh (PW 3) along with other police personnel were on

patrolling duty. When they reached the tri-junction leading to

the Chandika temple, they saw the accused coming from the

front. Seeing the police personnel, he ran away. On suspicion,

he was apprehended at 17:30 hrs. He was asked the reason

for running away. He told that he had 200 grams of Charas.

On enquiry, he told his name and address. He was asked

whether he wanted to be searched before a Magistrate or a

Gazetted Officer. He replied that he did not want to be

searched before the Magistrate or Gazetted Officer. He asked

them to search him. His personal search was conducted. On

search, Charas (Material Ext. 1) was recovered from the right

pocket of the pants he was wearing. On weighing, its weight

was found to be 200 grams. He was arrested. The recovered

article was sealed. The said recovered material was taken into

possession vide recovery memo (Ext Ka. 3). In spite of an

endeavour, no public witness could be secured. An FIR (Ext

Ka. 1) was lodged by Jagdish Pal (PW 2). Sample of recovered

material was sent to Forensic Science Laboratory, Agra.

Charge-sheet was filed after completion of investigation.

3. Charge under Section 20 (b) of the Act, 1985 was

framed. Accused pleaded not guilty and claimed to be tried.

4. Prosecution, in order to establish the charge,

examined four witnesses.

5. PW1 - Constable Amar Nath is the scribe of the First

Information Report.

6. PW 2 - Jagdish Pal and PW 3 - Harendra Singh Bisht

were members of the arresting party.

7. PW 4 - Constable Pyare Lal has proved the charge-

sheet (Ext. Ka-5) in the hand writing of the Investigating

Officer.

8. Statement of the respondent - accused was

recorded under Section 313 of the Code of Criminal Procedure,

1973. He denied all the incriminating evidence, produced by

the prosecution.

9. Respondent - accused did not adduce any defence

evidence.

10. Mr. S.S. Adhikari, learned Deputy Advocate General,

contended that the impugned judgment is wholly based on

conjectures and surmises. The judgment of the acquittal is not

justified in law and as such the same is liable to be set aside.

11. Mr. Rajat Mittal, learned amicus curiae, argued that

mandatory provision of Section 50 of the Act, 1985 had not

been complied. It is mandatory for the searching party to

inform the suspect of his right to be searched in the presence

of the Magistrate or Gazetted Officer.

12. The provisions of Section 50 of the Act, 1985 are as

under:-

"50. Conditions under which search of persons shall be conducted-- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior."

13. Section 50 of the Act, 1985, casts duty on

empowered officer to inform the suspect of his right to be

searched in the presence of the Gazetted Officer or Magistrate.

14. In "Vijaysinh Chandubha Jadeja vs. State of

Gujrat, (2011) 1 SCC 609", Constitutional Bench of the

Hon'ble Supreme Court has held as under:-

"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section

50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."

15. In Arif Khan vs. State of Uttarakhand, (2018)

18 SCC 380, the Hon'ble Supreme Court held that the

suspects may or may not choose to exercise the right provided

to them under Section 50 of the NDPS Act but as far as the

officer is concerned, an obligation is cast upon him under

Section 50 of the NDPS Act to apprise the suspect of his right

to be searched before a Gazetted Officer or a Magistrate.

16. It is well settled that when the law provides for

doing of an act in a particular manner, it necessarily prohibits

the doing of that act in any other manner.

17. In the present matter, respondent was not informed

of his said legal right. As per the recovery memo (Ext. ka 3),