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2019 Supreme(HP) 1790
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, CHANDER BHUSAN BAROWALIA, JJ.
State of Himachal Pradesh - Appellant
Versus
Deep Ram - Respondent
Cr. Appeal No. 139 of 2019
Decided On : 19-06-2019
For the Appellant :Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocates General, with Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Deputy Advocates General.
Headnote:
NDPS Act - Chance Recovery - Section 20 - [SUMMARY OF ACT SECTIONS REFERENCED: Section 50 of the NDPS Act] - The court discussed the chance recovery of charas and the non-compliance of Section 50 of the NDPS Act by the police. The judgment highlighted the mandatory nature of Section 50, emphasizing the importance of communicating the right to be searched by a magistrate or a gazetted officer to the accused. The court referred to previous judgments to support the mandatory nature of Section 50 and concluded that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt, leading to the acquittal of the accused.
Fact of the Case:
The police intercepted a bus and found charas in the possession of the accused during a chance recovery. The accused was acquitted for the offence punishable under Section 20 of the NDPS Act due to non-compliance with Section 50 of the NDPS Act by the police.
Finding of the Court:
The court found that the police did not comply with the mandatory provisions of Section 50 of the NDPS Act, leading to the failure of the prosecution to prove the guilt of the accused beyond a reasonable doubt.
Issues: Non-compliance with Section 50 of the NDPS Act by the police, chance recovery of charas, and the failure of the prosecution to prove the guilt of the accused.
Ratio Decidendi: The court emphasized the mandatory nature of Section 50 of the NDPS Act and the importance of communicating the right to be searched by a magistrate or a gazetted officer to the accused. The non-compliance of Section 50 by the police led to the acquittal of the accused.
Final Decision: The appeal was dismissed, and the findings of acquittal of the learned Trial Court were upheld.
Key Points: - The case concerns non-compliance with Section 50 NDPS Act in a chance recovery of charas, leading to acquittal (!) (!) (!) . - The court cites State of Rajasthan v. Parmanand and Vijaysinh Chandubha Jadeja to hold that compliance with Section 50 is mandatory and its non-compliance invalidates the prosecution's case (!) (!) (!) . - The prosecution case involved a bus interception, search of the accused, and recovery of 280 grams of charas, but investigators did not communicate the right to be searched by a Gazetted Officer or Magistrate (!) (!) (!) (!) . - The court found that the police did not comply with Section 50, which fatally undermined the prosecution’s case, resulting in acquittal of the accused by the Trial Court, and the High Court upheld the acquittal on appeal (!) (!) . - The judgment emphasizes the mandatory nature and purpose of Section 50 as a safeguard against false involvement, requiring clear communication of the right to be searched by a magistrate or gazetted officer (!) . - Prior case law cited: Arif Khan alias Agha Khan; State of Punjab v. Baldev Singh; Vijaysinh Chandubha Jadeja; State of Rajasthan v. Parmanand; State of Himachal Pradesh v. Desh Raj (cited for mandatory nature of Section 50) (!) (!) (!) (!) . - Final decision: The appeal is dismissed; findings of acquittal by the Trial Court are upheld (!) .
What is the mandatory nature of Section 50 NDPS Act in cases of chance recovery?
What are the consequences of non-compliance with Section 50 of the NDPS Act on proving guilt beyond reasonable doubt?
What is the court's ultimate decision regarding the acquittal and its affirmation on appeal?
JUDGMENT :
Chander Bhusan Barowalia, J.
The present appeal is maintained by the appellant/State, laying challenge to judgment dated 03.10.2018, passed by learned Special Judge-I, Sirmaur at Nahan, District Sirmaur, H.P., in Sessions Trial No. 3-ST/7 of 2015, whereby the accused/respondent (hereinafter referred to as “the accused”) was acquitted for the commission of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”).
2. The key facts necessary for adjudication of this appeal can tersely be summarized as under :
As per the prosecution story, on 17.01.2015, a police party of Police Station, Rajgarh, was on patrol duty in between Rajgarh and Neripul and a nakka was laid at place called Peripul. At about 08:55 a.m., a bus, having registration No. HP-71-3346, came from Neripul and it was en route Solan. The said bus was stopped for checking and the accused was found sitting on seat No. 26. Police conducted the personal search of the accused and recovered two polythene packets from his jacket. On checking, the said packets were found containing charas. The accused and the witnesses made to alight from the bus and the recovered contraband was weighed and it was found to be 280 grams. During the personal search of the accused police also recovered a mobile phone and two tickets of Rs. 10/- and Rs. 30/-. Thereafter, the police completed all the codal formalities and the polythene packets containing charas were put in a cloth parcel and the parcel was sealed with seals. The said parcel was taken into possession. Police also filled in NCB form, sample seal was drawn separately and seal after its use was handed over to witness Geeta Ram. Rukka was prepared by the police and sent to Police Station, Rajgarh, through Constable Rajesh Kumar, whereupon FIR was registered. The accused was arrested. Police prepared the spot map and photographs were also clicked. The accused alongwith the case property was brought to Police Station, where relevant columns of the NCB form were filled in. The parcel containing charas was resealed and the case property was deposited in the malkhana. The case property alongwith relevant documents was sent for scientific analysis to SFSL, Junga, and as per the report the sample was found to be the extract of cannabis. Police also seized the documents of the bus and special report was sent to SDPO, Rajgarh. After completion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as eleven witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The accused did not lead any evidence in his defence.
4. The learned Trial Court, vide impugned judgment dated 03.10.2018, acquitted the accused for the commission of the offence punishable under Section 20 of the NDPS Act, hence the present appeal is preferred by the State.
5. The learned Additional Advocate General has argued that the learned Trial Court did not correctly appreciate the material, which has come on record and the judgment, as rendered by the learned Trail Court, is based on surmises and conjectures. He has further argued that it was a chance recovery, so the provisions of Section 50 of the ND&PS Act were not required to be complied with. He argued that the appeal, which has merits, be allowed and the judgment of the learned Trial Court be set aside and the accused be convicted after appreciating the facts and law to their right and true perspective.
6. In order to appreciate the contentions of the learned Additional Advocate General for the appellant/State, we have gone through the record carefully. After going through the records, it was found apt not to issue notice to the accused/respondent and the appeal is required to be disposed of at the admission stage itself.
7. The case of the prosecution is of chance recovery. Precisely, as per the prosecution story, on 17.01.201
