Joint consent memo informing personal search right to multiple accused violates mandatory individual communication requirement, vitiating recovery despite resin presence confirming contraband.

Judgment :

Sushil Kukreja, J.

The present appeal has been preferred by the appellant- State under Section 378 of the Code of Criminal Procedure (Cr.PC) against the judgment of acquittal dated 30.04.2013 passed by the learned Special Judge, Chamba, District Chamba, HP, in Sessions Trial No.49/12, whereby the accused persons (respondents herein) were acquitted of the offences punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the ‘NDPS Act’).

2. Facts of the case, in brief, giving rise to instant appeal as per the prosecution story, are that on 08.05.2012, a police party headed by HC Devanand, while on patrolling duty towards Kapahdi Mod- Madhuwad- Seri-Kalhel, noticed two persons at around 2:40 AM, near Zero Point Jassourgarh, who were sitting on the left side of the high way and on seeing police, they tried to run away, but both of them were apprehended by the police. On suspicion, HC Devanand inquired their credentials, upon which, one of them disclosed his name as Soni (accused/respondent No.1 herein) and another as Ajay Kumar (accused/ respondent No.2 herein). As the aforesaid place was secluded and there was no habitation in the nearby, therefore, no independent witness was available and, as such, SPO Sanjeev Kumar and Constable Som Parkash were associated as witnesses. Thereafter, HC Devanand gave option to the accused persons as to whether they wanted to give their personal search to a Gazetted Officer or a Magistrate, however, both of them had given their consent in their own writing to be searched by the police party present on the spot. Then the police personnel gave their personal search to them, but nothing incriminating was found and after that, personal search of accused persons was carried out by HC Devanand and during personal search of accused Soni (respondent No.1), one cream coloured bag was found underneath his clothes tied with belly. On opening the said bag, a black coloured hard substance in the shape of slides was found, which on the basis of smelling as well as experience, was found to be charas and after weighing, charas was found to be 600 grams. Thereafter, charas was again put in the same bag, which was sealed in a cloth parcel with five seals of seal impression 'W'. Thereafter, during personal search of accused Ajay (respondent No.2), one red coloured bag was found underneath his vest and on opening the said bag, a black coloured hard substance was found, which was also charas and after weightment, it was found to be 400 grams. The recovered charas was put in the same red coloured bag, which was also sealed in a cloth parcel with five seals of impressions of seal 'W'. Sample of seal impression 'W' was separately taken on a piece of cloth and thereafter, the police completed other codal formalities and arrested both the accused persons.

3. On completion of the investigation and after receipt of SFSL report, the charge-sheet was prepared and presented before the learned Trial Court.

4. The learned trial Court, vide order dated 12.09.2012 framed charges against the accused persons under Section 20 of NDPS Act, to which they did not plead guilty and claimed trial.

5. The prosecution, in order to prove its case, examined eleven witnesses. Statements of accused persons under Sections 313, Cr.PC were recorded, wherein they denied all set of incriminating evidence led by the prosecution against them, besides pleaded to be innocent and that they were falsely implicated in th