Himachal Pradesh High Court
State Of H.P vs Dumanu Devi on 4 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 176 of 2014
.
Reserved on: 27.08.2024
Decided on: 04.09.2024
_________________________________________________________
State of H.P. …..Appellant
Versus
Dumanu Devi ……Respondent
_____________________________________________________
Coram
Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge
Hon’ble Mr. Justice Sushil Kukreja, Judge
1
Whether approved for reporting? No.
_____________________________________________________
For the appellant: Mr. I.N. Mehta, Senior Additional
Advocates General, with Ms. Sharmila
Patial, Additional Advocate General and
Mr. Raj Negi, Deputy Advocate General.
For the respondents: Mr. N.K. Thakur, Senior Advocate with Mr.
Divya Raj Singh Thakur, Advocate.
Sushil Kukreja, Judge
Aggrieved by the acquittal of the respondent under
Section 20 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short “NDPS Act”), the State has filed the instant
appeal with a prayer to set aside the impugned judgment dated
02.12.2013, passed by the learned Special Judge, Chamba,
District Chamba, H.P. in Sessions Trial No. 16/13.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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2. Briefly stating facts giving rise to the present appeal,
as per the prosecution story are that on 30.03.2013 the police
party had laid a Nakka at place Bonkhari Mod. Around 11:05 A.M.,
.
an HRTC bus bearing registration No. HP-38B-5313 came there
with passengers on board enroute from Sanwal to Pathankot,
which was signaled to stop. ASI Madan Lal alongwith HC Bhagwan
Dass, LHC Indu Bala, HHC Sanjay Kumar and one lady constable
entered the bus. On reaching near seat No. 37, LHC Indu Bala,
noticed that the lady sitting on it was nervous and arranging her
shawl time and again. On suspicion, the passenger sitting on seat
No. 37 was brought out of the bus by the lady constable. The
Driver and Conductor of the bus were also called outside in whose
presence the lady sitting on seat No. 37 of the bus disclosed her
name as Dumanu Devi. She also disclosed that she bought the
bus ticket from Brangal to Banikhet. Her tickets were verified by
Conductor Milap Chand (PW-3). ASI Madan Lal apprised Dumanu
Devi that she was suspected of carrying some contraband, as
such, she was required to be searched personally. He also
apprised her that she had a legal right to have her personal search
either in presence of Gazetted Officer or Magistrate. Respondent
Dumanu Devi had opted to give her personal search to some
higher officer and she was again taken inside the bus, where her
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consent memo, Ext. PW-18/A was prepared in presence of
Conductor Milap Chand, Driver Tilak Raj and one Mohd. Irshad,
who was sitting on the adjacent seat with the respondent. All the
.
aforesaid persons had signed the consent memo. On consent
memo, the respondent herself had given in writing that she would
give her personal search in presence of some higher officer. On
receiving such information, Dy. S.P. Raman Sharma reached the
spot at 12:20 P.M. On reaching the spot, he interrogated the
respondent and then proceeded to Dhaba. He directed LHC Indu
Bala in writing to conduct personal search of the respondent with
the help of two lady constables. LHC Indu Bala alongwith two lady
constables offered their personal search to the respondent and in
this respect memo, Ext. PW-5/A was prepared, which was handed
over to ASI Madan Lal. Thereafter, LHC Indu Bala and two other
lady constables took the respondent inside room No. 2 of the
Dhaba and searched her and during her personal search, they
recovered three polythene packets concealed inside her bra.
Dy. SP Raman Sharma in the presence of Dhaba Owner Manoj
Kumar, one Surjeet Singh and other police officials had directed
ASI Madan Lal to open those three polythene packets. On opening
the same, a black coloured substance in the shape of slides and
rolls was found. On smelling as well as on the basis of experience,
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the recovered contraband was found to be charas/cannabis, which
on weighment was found to be 1 kg and 500 gms. Thereafter, the
police completed all the codal formalities, viz., recovered
.
contraband was put back in the same polythene packets, then all
the three packets were sealed in a cloth parcel. Sample of seal “K”
was taken separately on a piece of plain cloth. Seal impression
was taken on NCB form in triplicate. Parcel, seals and NCB form in
triplicate were taken into possession vide memo, Ext. PW-5/D in
the presence of witnesses Manoj Kumar, Surjeet Singh and LHC
Indu Bala, which bears the signatures of the respondent. Rukka,
Ext. PW-18/B was prepared and was sent to Police Station through
HC Madan Lal and copy thereof was given to HHC Sanjay Kumar
for handing over the same to S.P. Chamba, on the basis of which,
FIR was registered against the respondent. Spot map, Ext. PW-
18/C was prepared as per the spot and statements of witnesses
were recorded as per their versions. Thereafter, the
respondent was arrested and arrest information memo, Ext. PW-
18/F was prepared in presence of LC Kuko Kumari by LHC Indu
Bala.
3. On the completion of the investigation and after receipt
of the SFSL report, the charge-sheet was prepared and presented
before the learned Trial Court.
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4. The learned trial Court, vide order dated 26.06.2013
framed charge against the respondent under Section 20 of NDPS
Act, to which she did not plead guilty and claimed to be tried.
.
5. In order to prove its case, the prosecution examined as
many as nineteen witnesses and thereafter statement of the
respondent was recorded under Section 313 Cr.P.C., wherein she
denied the prosecution story as a whole, besides pleaded to be
innocent and being falsely implicated. However, the respondent did
not examine any witness in her defence.
6. The learned trial Court, after evaluating the oral as well
documentary evidence, acquitted the respondent, hence the
present appeal.
7. The learned Additional Advocate General contended
that the trial Court has based its findings merely on surmises,
conjectures and hypothesis and has arrived at a wrong decision
without appreciating the evidence on record properly, hence, the
judgment of acquittal is liable to be set aside and the respondent is
liable to be convicted as per law.
8. On the other hand, the learned Senior counsel for the
respondent contended that the judgment passed by the learned
trial Court is the result of proper appreciation of the material on
record and the same was passed after appreciating the evidence
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and law in its right and true perspective. He further contended that
the Investigating Agency has failed to comply with the mandatory
provisions of Section 50 of the NDPS Act, hence, the instant
.
appeal deserves to be dismissed.
9. We have heard the learned Additional Advocate
General for the appellant as well as the learned Senior counsel for
the respondent and also carefully examined the entire records.
10. It is well settled by the Hon’ble Apex Court in a catena
of decisions that an Appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of
acquittal is founded. However, Appellate Court must bear in mind
that in case of acquittal there is double presumption in favour of
the accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is
proved guilty by a competent Court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial Court.
Further, if two reasonable views are possible on the basis of the
evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the trial Court.
11. The scope of power of Appellate Court in case of
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appeal against acquittal has been dealt with by the Hon’ble Apex
Court in Muralidhar alias Gidda & another Vs. State of
Karnatka reported in (2014) 5 SCC 730, which reads as under :-
.
“10. Lord Russell in Sheo Swarup[1], highlighted the
approach of the High Court as an appellate court hearing the
appeal against acquittal. Lord Russell said,
“… the High Court should and will always give properweight and consideration to such matters as (1) the
views of the trial Judge as to the credibility of the
witnesses; (2) the presumption of innocence in favour
of the accused, a presumption certainly not weakened
by the fact that he has been acquitted at his trial; (3)the right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate court in disturbing a
finding of fact arrived at by a Judge who had the
advantage of seeing the witnesses.” The opinion of theLord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while
dealing with the powers of the High Court in an appeal
against acquittal under Section 417 of the Criminal
Procedure Code observed:
“7………..the High Court has full power to review the
evidence upon which the order of acquittal was
founded, but it is equally well settled that the
presumption of innocence of the accused is further
reinforced by his acquittal by the trial court, and thefindings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence canbe reversed only for very substantial and compelling
reasons.”
12. The approach of the appellate court in the appeal
against acquittal has been dealt with by this Court in
Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher
Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor
Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade [11],
Lekha Yadav [12], Khem Karan [13], Bishan Singh [14],
Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota Singh
[17], Ram Kumar [18], Madan Lal [19], Sambasivan [20],
Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23],
K. Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa
[26]. It is not necessary to deal with these cases individually.
Suffice it to say that this Court has consistently held that in
dealing with appeals against acquittal, the appellate court
must bear in mind the following:
(i) There is presumption of innocence in favour of an
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accused person and such presumption is
strengthened by the order of acquittal passed in his
favour by the trial court,
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal,.
(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against
convictions but the appellate court is generally loathin disturbing the finding of fact recorded by the trial
court. It is so because the trial court had an
advantage of seeing the demeanor of the witnesses.
If the trial court takes a reasonable view of the facts
of the case, interference by the appellate court with
the judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably
wrong or based on erroneous view of the law or if
such conclusions are allowed to stand, they are likely
to result in grave injustice, the reluctance on the part
of the appellate court in interfering with such
conclusions is fully justified, and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is
inclined to take a different view, interference with the
judgment of acquittal is not justified if the view taken
by the trial court is a possible view. The evenly
balanced views of the evidence must not result in the
interference by the appellate court in the judgment of
the trial court.”
12. The Hon’ble Supreme Court in Rajesh Prasad vs.
State of Bihar & another, (2022) 3 SCC 471, observed as under:-
“31.The circumstances under which an appeal would be
entertained by this Court from an order of acquittal passed
by a High Court may be summarized as follows:
31.1.Ordinarily, this Court is cautious in interfering with
an order of acquittal, especially when the order of
acquittal has been confirmed up to the High Court. It is
only in rarest of rare cases, where the High Court, on
an absolutely wrong process of reasoning and a legally
erroneous and perverse approach to the facts of the
case, ignoring some of the most vital facts, has
acquitted the accused, that the same may be reversed
by this Court, exercising jurisdiction under Article 136 of
the Constitution. [State of U.P. v. Sahai (1982) 1 SCC
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prompted by the reluctance to expose a person, who
has been acquitted by a competent court of a criminal
charge, to the anxiety and tension of a further
examination of the case, even though it is held by a
superior court. [Arunchalam v. P.S.R. Sadhanantham
(1979) 2 SCC 297] An appeal cannot be entertained.
against an order of acquittal which has, after recording
valid and weighty reasons, has arrived at an
unassailable, logical conclusion which justifies
acquittal. [State of Haryana vs. Lakhbir]
31.2.However, this Court has on certain occasions, set
aside the order of acquittal passed by a High Court.
The circumstances under which this Court may
entertain an appeal against an order of acquittal and
pass an order of conviction, may be summarized as
follows:
31.2.1.Where the approach or reasoning of the High
Court is perverse;
(a)Where incontrovertible evidence has been rejected
by the High Court based on suspicion and surmises,
which are rather unrealistic. [State of Rajasthan v.
Sukhpal Singh (1983) 1 SCC 393] For example,
where direct, unanimous accounts of the
eyewitnesses, were discounted without cogent
reasoning. [State of U.P. vs. Shanker 1980 Supp SCC
489]
(b) Where the intrinsic merits of the testimony of
relatives, living in the same house as the victim, were
discounted on the ground that they were “interested”
witnesses. [State of U.P. v. Hakim Singh (1980)
(c)Where testimony of witnesses had been
disbelieved by the High Court, on an unrealistic
conjecture of personal motive on the part of
witnesses to implicate the accused, when in fact, the
witnesses had no axe to grind in the said matter.
[State of Rajasthan v. Sukhpal Singh (1983) 1 SCC
393]
(d) Where dying declaration of the deceased victim
was rejected by the High Court on an irrelevant
ground that they did not explain the injury found on
one of the persons present at the site of occurrence
of the crime. [Arunachalam vs. P.S.R.
Sadhanantham (1979) 2 SCC 297]
(e) Where the High Court applied an unrealistic
standard of “implicit proof” rather than that of “proof
beyond reasonable doubt” and therefore evaluated
the evidence in a flawed manner. [State of U.P. v.
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Ranjha Ram (1986) 4 SCC 99]
(f) Where the High Court rejected circumstantial
evidence, based on an exaggerated and capricious
theory, which were beyond the plea of the accused;
[State of Maharashtra v. Champalal Punjaji Shah
(1981) 3 SCC 610]
.
(g) Where the High Court acquitted the accused on
the ground that he had no adequate motive to commit
the offence, although, in the said case, there was
strong direct evidence establishing the guilt of the
accused, thereby making it necessary on the part of
the prosecution to establish “motive”. [State of A.P. v.
Bogam Chandraiah (1990) 1 SCC 445]
31.2.2.Where acquittal would result is gross miscarriage of
justice;
(a) Where the findings of the High Court,
disconnecting the accused persons with the crime,
were based on a perfunctory consideration of
evidence, [State of U.P. v. Pheru Singh 1989 Supp (1)
SCC] or based on extenuating circumstances which
were purely based in imagination and fantasy [State
of U.P. v. Pussu (1983) 3 SCC 502]
(b) Where the accused had been acquitted on ground
of delay in conducting trial, which delay was
attributable not to the tardiness or indifference of the
prosecuting agencies, but to the conduct of the
accused himself; or where accused had been
acquitted on ground of delay in conducting trial
relating to an offence which is not of a trivial nature.
[State of Maharashtra v. Champalal Punjaji Shah
(1981) 3 SCC 610].”
13. In H.D. Sundara & others vs. State of Karnataka,
(2023) 9 SCC 581, the Hon’ble Supreme Court has observed that
the appellate court cannot overturn acquittal only on the ground
that after re-appreciating evidence, it is of the view that the guilt of
the accused was established beyond a reasonable doubt. The
relevant portion of the above judgment is as under:-
“8. In this appeal, were are called upon to consider the
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legality and validity of the impugned judgment rendered by
the High Court while deciding an appeal against acquittal
under Section 378 of the Code of Criminal Procedure, 1973
(for short “CrPC”). The principles which govern the exercise
of appellate jurisdiction while dealing with an appeal against
acquittal under Section 378 CrPC can be summarized as.
follows:
8.1.The acquittal of the accused further strengthens the
presumption of innocence;
8.2.The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral anddocumentary evidence;
8.3.The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence, is
required to consider whether the view taken by the trial
court is possible view which could have been taken onthe basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on the
ground that another view was also possible; and8.5.The appellate court can interfere with the order of
acquittal only if it comes to a finding that the onlyconclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible.
9.Normally, when an appellate court exercises appellate
jurisdiction, the duty of the appellate court is to find out
whether the verdict which is under challenge is correct
or incorrect in law and on facts. The appellate courtnormally ascertains whether the decision under
challenge is legal or illegal. But while dealing with anappeal against acquittal, the appellate court cannot
examine the impugned judgment only to find out
whether the view taken was correct or incorrect. Afterre-appreciating the oral and documentary evidence, the
appellate court must first decide whether the trial court’s
view was a possible view. The appellate court cannot
overturn acquittal only on the ground that after re-
appreciating evidence, it is of the view that the guilt of
the accused was established beyond a reasonable
doubt. Only recording such a conclusion an order of
acquittal cannot be reversed unless the appellate court
also concludes that it was the only possible conclusion.
Thus, the appellate court must see whether the view
taken by the trial court while acquitting an accused can
be reasonably taken on the basis of the evidence on
record. If the view taken by the trial court is a possible
view, the appellate court cannot interfere with the order
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of acquittal on the ground that another view could have
been taken.”
14. Thus, the law on the issue can be summarized to the
.
effect that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. Further, if two views were possible on the basis of the
evidence on record, the Appellate Court should not disturb the
finding of acquittal recorded by the Trial Court, merely, because the
Appellate Court could have arrived at a different conclusion than
that of the Trial Court.
15. Reverting back to the case on hand, even though, the
prosecution has examined as many as nineteen witnesses, but,
the case of the prosecution mainly rests upon the statements of
PW-1 Manoj Kumar i.e. the Dhaba owner,PW-2 Surjeet Singh, who
was sitting on the adjacent seat with the respondent in the bus in
question, PW-3 Milap Chand, PW-4 Tilak Raj, Conductor and
Driver of the bus in question respectively, PW-5 LHC Indu Bala,
PW-6 HC Madan Lal, PW-12 HHC Sanjay Kumar, PW-16 Dy. SP
Raman Sharma and PW-18 ASI Madan Lal.
16. PW-5 LHC Indu Bala, deposed that on 30.03.2013 on
the direction of SHO, Police Station Dalhousie, she proceeded to
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Police Post Banikhet alongwith lady constables Kiran and Kuko.
After reaching there, she alongwith the aforesaid lady constables,
HC Bhagwan Chand, HC Madan, HHC Budhi Prakash and
.
Constable Sanjay Kumar proceeded for traffic checking towards
Banikhet Chowk on Chamba highway. Thereafter, all of them
boarded private vehicle and proceeded to Bonkheri Mod for traffic
checking. They checked one scooter and in the meanwhile an
HRTC bus bearing registration No. HP-38B-5313 enroute from
Sanwal to Pathankot arrived there, which was signaled to stop. HC
Bhagwan Chand and ASI Madan Lal entered the bus from the front
door and she alongwith Constable Sanjay and lady Constable
Kiran entered the bus from the rear door. ASI Madan Lal and HC
Bhagwan Chand were checking the bus while she alongwith lady
Constable Kiran and Constable Sanjay were checking the luggage
in the rear side. One lady was noticed covering and arranging her
shawl time and again and when she was normally asking that lady
about her destination, ASI Madan Lal came there. The lady got
nervous and when she asked her as to what kind of luggage she
was carrying, the lady said nothing. She got suspicious on seeing
that lady and she told this to ASI Madan Lal. The lady was time
and again asked as to what she was carrying, but she did not
relent, though, she disclosed her name as Dumanu Devi, resident
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of Churah. In the meanwhile, ASI Madan Lal had a talk with Dy. SP
Dalhousie on phone, who advised ASI Madan Lal to proceed
further in the matter and told him to go ahead, as lady constables
.
were available there. ASI Madan Lal asked the lady whether she
would like to get herself searched in presence of Gazetted Officer
or Magistrate, but she opted to have her personal search by lady
constables in presence of the Gazetted Police Officer. Consent
memo of the respondent in this regard was prepared inside the
vehicle. The respondent was asked to alight from the vehicle and
she was taken to nearby Dhaba for search. In the meantime,
Dy. SP Dalhousie Raman Sharma also came there and advised
her to prepare memo of personal search. She alongwith lady
Constables Kiran and Kuko offered their personal search and in
this behalf memo, Ext. PW-5/A was prepared, which was signed by
lady Constables Kuko and Kiran. The respondent had also
appended her signatures on the same. Thereafter, she conducted
personal search of the respondent in presence of lady Constables
Kuko and Kiran, while Dy. SP. Raman Sharma stayed outside.
During personal search of the respondent, three polythene packets
were found concealed by her underneath her shirt above her
breast. She took those polythene packets to Dy. SP Raman
Sharma and when the said packets were opened, ASI Madan Lal
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concluded that those three packets were containing cannabis. On
weighment, the recovered contraband was found to be 1 kg and
500 gms.
.
17. PW-6 HC Madan Lal, PW-12 HHC Sanjay Kumar and
PW-18, ASI Madan Lal, Investigating Officer of the case deposed
in one voice that on 30.03.2013, ASI Madan Lal, HC Bhagwan
Dass, HHC Budhi Singh, HC Madan Lal, Constable Sanjay Kumar,
LHC Indu Bala, Lady Constables Kuko Kumari and Kiran Pathania
had laid a nakka at place Bonkhari Mod. Around 11:05 A.M. an
HRTC bus bearing registration No. HP-38B-5313 came there with
passengers on board enroute from Sanwal to Pathankot, which
was signaled to stop. The police party entered the bus. While
checking the bus, ASI Madan Lal reached near seat No. 37 and
LHC Indu Bala told him that she had suspicion that the respondent
might be carrying some contraband, as according to her, the
respondent appeared nervous and had been noticed arranging her
shawl time and again. Thereafter, the respondent was brought out
of the vehicle and driver and conductor of the bus in question were
also called. In their presence the respondent disclosed her name
and address. She also disclosed that she bought bus ticket from
Brangal to Banikhet. The bus ticket of the respondent was verified
from conductor. The respondent was apprised that she was
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suspected of carrying some contraband, as such, she was
required to be searched personally. She was also apprised that
she had a legal right to have her personal search either in
.
presence of Gazetted Officer or Magistrate and she opted to give
her personal search to some higher officer. Thereafter, the
respondent was again taken inside the bus, where her consent
memo, Ext. PW-18/A was prepared in presence of conductor and
driver. Mohd. Irshad who was sitting on the adjacent seat with the
respondent was also present there. All the aforesaid three persons
had signed the memo. On consent memo, the respondent herself
had given in writing that she would give her personal search in
presence of some higher officer or to the lady police official.
Thereafter HRTC bus was let off with the passengers on board and
information was given to Dy. S.P. Raman Sharma on phone, who
reached the spot at 12:20 P.M. Dy. S.P. Raman Sharma on
reaching the spot, interrogated the respondent and then
proceeded to Dhaba. He directed LHC Indu Bala in writing to
conduct personal search of the respondent with the help of two
lady constables. He also directed Manoj, owner of the Dhaba and
one more person namely Surjeet to sit outside the bench there.
LHC Indu Bala alongwith two other lady constables offered their
personal search to the respondent and in this regard, memo Ext.
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PW-5/A was prepared. After ten minutes LHC Indu Bala alongwith
lady constables and respondent came out and disclosed that
during personal search of the respondent, three polythene packets
.
were found concealed by her underneath her bra which were
found containing black coloured solid substance. On smelling as
well as on the basis of experience, the recovered contraband was
found to be charas/cannabis. On weighment, the recovered
charas was found to be 1 kg and 500 gms.
18. Dy. SP Raman Sharma, while appearing in the witness
box as PW-16 deposed that on 30.03.2013, around 11:35 A.M., he
received a telephonic call from ASI Madan Lal that one lady
passenger, suspected to be carrying some contraband, had been
nabbed during checking of an HRTC bus enroute from Sanwal to
Pathankot. He was also informed that lady passenger on being
apprised of her legal right had opted to give her personal search in
presence of some superior police officer through some female. In
response to the telephonic information, he reached the spot at
12:20 P.M. and on reaching there, the respondent was produced
before him by ASI Madan Lal, LHC Indu Bala and two lady
constables on the highway outside a Dhaba, owned by one Manoj
Kumar. He had gone through consent memo and on his asking,
she disclosed her name as Dumanu Devi. He also disclosed his
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identity and designation to the respondent. Thereafter, he directed
LHC Indu Bala in writing to conduct personal search of the
respondent in his presence strictly adhering her modesty and to
.
this effect, memo Ext. PW-16/A was prepared. The respondent
was taken aside for her personal search by LHC Indu Bala and two
lady constables Kiran and Kuko. Before personal search, he
visited and checked the place inside the Dhaba. The respondent
was taken inside a vacant room for her personal search by LHC
Indu Bala and the aforesaid lady constables. After search, the
respondent was brought out and LHC Indu Bala produced three
polythene packets before him and he was informed that those
packets were found tied on the chest of the respondent. On
opening of the polythene packets, the same were found containing
a black coloured substance, which was cannabis. On weighment,
the recovered contraband was found to be 1 kg and 500 gms.
19. We have scrutinized the entire evidence on record
minutely. The perusal of the evidence on record reveals that
independent witnesses, i.e. PW-1 Manoj Kumar i.e.the Dhaba
owner, PW-2 Surjeet Singh, who was sitting on the adjacent seat
with the respondent in the bus in question, PW-3 Milap Chand,
PW-4 Tilak Raj, Conductor and Driver of the bus in question
respectively, did not support the case of the prosecution and had
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turned hostile.
20. The evidence on record suggests that PW-3 and PW-4,
who were employed as Conductor and Driver, respectively in
.
HRTC bus bearing registration No. HP38-5313 enroute from
Sanwal to Pathankot, in which, the respondent was on board
alongwith other passengers and independent witness Mohd.
Irshad sitting on the adjacent seat were associated at the time of
preparation of consent memo Ext. PW-18/A at the spot, i.e.
Bonkhari Mod, where Nakka was laid by PW-18 ASI Madan Lal.,
So far as independent witness Mohd. Irshad is concerned, he has
not been examined by the prosecution. While closely scrutinizing
the statements of PW-3 Milap Chand and PW-4 Tilak Raj, who are
witnesses to consent memo, Ext. PW-18/A, it appears that there
are many contradictions in their statements, which do not reconcile
with the prosecution story as well as the statement of PW-18 ASI
Madan Lal, who is the Investigating Officer of the case and who
had scribed the aforesaid memo.
21. As per the version of PW-18 ASI Madan Lal, while
checking HRTC bus in question, on being informed by PW-5 LHC
Indu Bala, he asked the respondent to disclose her name and
address. As per this witness, he apprised the respondent that she
was a suspect of carrying some contraband and she was required
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to be searched personally. He also apprised the respondent that
she had a legal right to have her personal search either in
presence of Gazetted Officer or Magistrate and to this effect,
.
memo Ext. PW-18/A was prepared. It has specifically come in the
statement of PW-18 ASI Madan Lal that the respondent had opted
to give her personal search to some higher officer and she was
taken inside the bus by the lady constable.
22. PW-3 Milap Chand, Conductor of the bus in question,
deposed that the respondent had purchased bus ticket, Ext. PW-
3/A. He identified his signatures on reverse of ticket in red circle
‘A’. He also deposed that the police had stopped the bus in
question for about half an hour and then the bus was allowed to
go, but he feigned ignorance as to whether the respondent was
interrogated by the police. He denied that the police had asked the
respondent to conduct her personal search of being suspect of
having some contraband in her possession. This witness had
turned hostile and was cross-examined at length by the learned
Public Prosecutor, however, nothing favourable could be elicited
from his lengthy cross-examination. In cross-examination, he
specifically denied the suggestion that ASI Madan Lal had
apprised the respondent in his presence about her legal right to
opt for personal search either by Gazetted Officer or Magistrate.
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23. PW-4 Tilak Raj, Driver of the bus in question, who was
another witness to consent memo, Ext. PW-18/A, enroute from
Sanwal to Pathankot deposed that the police had laid a nakka at
.
Bonkhari Mod. As per this witness, one lady was asked to alight
from the bus by the police representing that she was a suspect of
having something and was taken by the police. He further deposed
that he could not say whether the lady present in the Court was the
same. He also deposed that his statement was recorded by the
police on 06.04.2013 and on that day, it was disclosed to him by
the police that lady was found in possession of 1 kg and 500 gms
of charas. His signatures were obtained by the police at Bonkhari
Mod. He had not seen the face of the lady, who had been taken
along by the police, but he stated that the lady was apprised by the
police in his presence that she had a right to give her personal
search before the Magistrate or Gazetted Officer. This witness had
also turned hostile and was cross-examined at length by the
learned Public Prosecutor, however, nothing favourable could be
elicited from his lengthy cross-examination. In cross-examination,
he specifically denied that the lady who was apprised of her right
to have her personal search by a superior officer was the
respondent. He also denied that police had apprised the
respondent of her right to give personal search either in the
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presence of Gazetted Officer or Magistrate.
24. Therefore, the statements of PW-3 and PW-4, who are
the witnesses to consent memo, Ext. PW-18/A, demolishes the
.
story of the prosecution to a great extent. The statements of both
these witnesses also do not find any corroboration from the
version of PW-5 LHC Indu Bala, PW-6 HC Madan Lal,PW-12 HHC
Sanjay Kumar and PW-18 ASI Madan Lal,
25. The perusal of consent memo, Ext. PW-18/A shows
that there is no reference of Gazetted Officer in the aforesaid
memo. Its perusal also reveals that PW-18 ASI Madan Lal had
apprised the respondent that she had a legal right to be searched
in presence of some Magistrate or some higher officer. The writing
in red circle ‘A’, on consent memo, Ext. PW-18/A which as per the
prosecution story is of the respondent suggests that the
respondent had opted to be searched in presence of some higher
officer. As per the statement of PW-3 Milap Chand, who is a
witness to consent memo, Ext. PW-18/A, portion covered in red
circle ‘A’ was blank when he appended his signatures thereupon at
point ‘A’. Thus this writing covered in red circle ‘A’ stated to be that
of the respondent has not been proved by the prosecution beyond
the shadow of reasonable doubt.
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26. The statement of PW-16 Dy. SP Raman Sharma
suggests that he had directed PW-5 LHC Indu Bala in writing to
conduct personal search of the respondent in his presence and to
.
this effect he made writing, Ext. PW-16/A in his own hand. There is
no reference of the fact either in rukka Ext. PW-18/B or in special
report,Ext. PW-14/B that at the time of alleged personal search of
the respondent by PW-5 LHC Indu Bala and two other lady
constables, PW-16 Dy. SP Raman Sharma had introduced himself
about his designation and of his being Gazetted Officer. There is
nothing on record to suggest that PW-16 had apprised respondent
of his being Gazetted Officer and that he apprised the respondent
of her legal right to give her personal search before him being a
Gazetted Officer.
27. To comply with the provisions of Section 50 of the
NDPS Act, the accused has to be very categorically and
specifically informed about his/her legal right to be searched. Mere
asking the accused whether he/she is interested to giver his/her
personal search before a Magistrate or a Gazetted officer, is not
the compliance of Section 50 of the NDPS Act, but the accused
must be informed that he/she has a legal right to be searched.
28. PW-18 ASI Madan Lal has nowhere deposed that
PW-16 Dy. SP Raman Sharma on reaching the spot had disclosed
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his identity and designation to the respondent. Rather, the
statement of this witness suggests that PW-16 on reaching the
spot, had interrogated the respondent and then proceeded to
.
Dhaba, where he directed PW-5 LHC Indu Bala in writing, Ext.
PW-16/A to conduct personal search of the respondent with the
help of two lady constables. Therefore, the statement of this
witness do not reconcile with the statement of PW-16 with regard
to disclosure of his identity and designation to the respondent and
with special report, Ext. PW-14/B and rukka, Ext. PW-18/B. It was
mandatory on the part of PW-16 Dy. SP Raman Sharma to have
made the respondent aware of his being Gazzetted Officer. Even
though, as per seizure memo, Ext. PW-5/D and as per the
prosecution story, during personal search of the respondent by
PW-5 and two lady constables, 1 kg and 500 gms of charas was
found, but the statement of PW-16 suggests that search was
carried out inside the room having door while he stood outside. As
per his version, he had not gone inside the room since it was
search of a lady. He came to know about polythene packets
containing charas on being informed by PW-5 LHC Indu Bala. The
statement of PW-5, who claims to have conducted personal search
of the respondent also suggests that PW-16 Dy. SP Raman
Sharma stayed outside at the time of search.
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29. PW-1 Manoj Kumar and PW-2 Surjeet Singh, who are
the witnesses to seizure memo, Ext. PW-5/D have turned hostile
and did not support the case of the prosecution. Though PW-1
.
identified his signatures on seizure memo Ext. PW-5/D, but denied
that the respondent was searched in his presence and that during
her search, three packets containing cannabis/charas were
recovered from her possession. PW-2 also denied that the
respondent was searched in his presence and that during her
search, she was found in possession of cannabis/charas
containing three packets of polythene, which she had kept
underneath her clothes near her chest. He denied the prosecution
story as a whole. Thus the evidence on record shows that the
respondent was not apprised of her right under Section 50 of the
NDPS Act to be searched either before a Magistrate or Gazetted
Officer and that search was carried out inside the room having
door by PW-5 LHC Indu Bala while PW-16 Dy. SP Raman Sharma
stayed outside at the time of search.
30. The Constitution Bench of the Hon’ble Supreme Court in
“VijaysinhChandubha Jadeja Vs. State of Gujarat”, (2011) 1
SCC 609, observed as under:
“24. Although the Constitution Bench in Baldev Singh case
[(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] did not decide in
absolute terms the question whether or not Section 50 of the
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provisions of sub-section (1) of Section 50 make it imperative forthe empowered officer to “inform” the person concerned
(suspect) about the existence of his right that if he so
requires, he shall be searched before a gazetted officer or
a Magistrate; failure to “inform” the suspect about the.
existence of his said right would cause prejudice to him,
and in case he so opts, failure to conduct his search before
a gazetted officer or a Magistrate, may not vitiate the trial
but would render the recovery of the illicit article suspectand vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the basis
of the possession of the illicit article, recovered from the
person during a search conducted in violation of the
provisions of Section 50 of the NDPS Act. The Court alsonoted that it was not necessary that the information
required to be given under Section 50 should be in a
prescribed form or in writing but it was mandatory that the
suspect was made aware of the existence of his right to besearched before a gazetted officer or a Magistrate, if so
required by him. We respectfully concur with these
conclusions. Any other interpretation of the provision would
make the valuable right conferred on the suspect illusory
and a farce.
29. In view of the foregoing discussion, we are of the firm
opinion that the object with which the right under Section
50(1) of the NDPS Act, by way of a safeguard, has beenconferred on the suspect viz. to check the misuse of power,
to avoid harm to innocent persons and to minimise theallegations 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 besearched of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation in holding
that insofar 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 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.”
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31. In State of Rajasthan Vs. Parmanand and another,
(2014) 5 SCC 345, after making referrals to the conclusions drawn
.
by the Constitution Bench of the Hon’ble Supreme Court in
Baldev Singh’s case(1999) 6 SCC 172, State of H.P. Vs. Pawan
Kumar (2005) 4 SCC 350, Dilip Vs. State of M.P., Union of India
Vs. Shah Alam (2009) 16 SCC 644, observed vide paragraph 10
to the effect:-
“10. The conclusions drawn by the Constitution Bench, which
are relevant for this case could be quoted: (Baldev Singh
case [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 )“(1) That when an empowered officer or a duly
authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the
person concerned of his right under sub-section (1) of
Section 50 of being taken to the nearest gazetted officeror the nearest Magistrate for making the search.
However, such information may not necessarily be in
writing.
(2) That failure to inform the person concerned about
the existence of his right to be searched before a
gazetted officer or a Magistrate would cause prejudice
to an accused.
(3) That a search made by an empowered officer, on
prior information, without informing the person of his
right that if he so requires, he shall be taken before a
gazetted officer or a Magistrate for search and in case
he so opts, failure to conduct his search before a
gazetted officer or a Magistrate, may not vitiate the trial
but would render the recovery of the illicit article suspect
and vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the
basis of the possession of the illicit article, recovered
from his person, during a search conducted in violation
of the provisions of Section 50 of the Act.”
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32. The Hon’ble Supreme Court in Arif Khan @ Agha
Khan Vs. State of Uttarakhand, AIR 2018 SC 2123, held that
.
compliance of Section 50 of the NDPS Act, 1985 of the accused
being searched in the presence of either a Magistrate or a
Gazetted Officer, is mandatory. It was further held that the suspect
person may or may not choose to exercise the right provided to
him Under Section 50 of the NDPS Act but so 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. It was observed as under:
“23. Their Lordships have held in Vijay sinh Chandubha Jadeja
(supra) that the requirements of Section 50 of the NDPS Act aremandatory and, therefore, the provisions of Section 50 must be
strictly complied with. It is held that it is imperative on the part of
the Police Officer to apprise the person intended to be searched
of his right Under Section 50 to be searched only before aGazetted officer or a Magistrate. It is held that it is equally
mandatory on the part of the authorized officer to make thesuspect aware of the existence of his right to be searched
before a Gazetted Officer or a Magistrate, if so required by him
and this requires a strict compliance. It is ruled that the suspect
person may or may not choose to exercise the right provided tohim Under Section 50 of the NDPS Act but so 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. (See also
Ashok Kumar Sharma v. State of Rajasthan: 2013 (2) SCC 67
and Narcotics Control Bureau v. Sukh Dev Raj Sodhi, 2011 (6)
SCC 392)”
33. Thus, from a conspectus of the aforesaid decisions, it
will be clear that the very object of Section 50 of the NDPS Act is
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to provide a safeguard which has been given to a suspect and to
keep a check on misuse of power and to avoid harm to innocent
persons and to minimize the allegations of planting or foisting a
.
false case by the law and enforcement agencies. So far as the
obligation of the authorized officer under sub-section (1) of Section
50 of the Narcotic Drugs And Psychotropic Substances 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 trial. In the instant case, it is
found that the prosecution has failed to prove the said mandatory
compliance of Section 50 of NDPS Act, 1985. It is a case where
the provisions of Section 50 of the NDPS Act have been totally
ignored and no offer was made to the respondent to be searched e
before the Gazetted Officer as per the mandatory provisions of
Section 50 of the NDPS Act. In fact her personal search was
conducted by PW-5 LHC Indu Bala inside the room having door
while PW-16 Dy. SP Raman Sharma stayed outside at the time of
search in complete violation of the mandatory provisions of Section
50 of the NDPS Act. Therefore, the respondent is entitled to claim
benefit on this ground to seek acquittal.
34. There is another aspect of the matter as the specific
case of the prosecution is that on 30.03.2013, a raiding party
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headed by ASI Madan Lal proceeded towards Sukdain Bain and
Bonkhari Mod for traffic checking and Nakabandi and at about
11:05 A.M., an HRTC bus bearing registration No. HP-38B-5313
.
arrived there with passengers on board enroute from Sanwal to
Pathankot, which was signaled to stop. During checking of the said
bus, suspicion was raised on the respondent, who was sitting on
seat No. 37 that she might be carrying some contraband.
Accordingly, the respondent with the help of lady constables was
brought out of the bus and after apprising her that she had a legal
right to have her personal search either in presence of the
Gazetted Officer or Magistrate, had opted to give her personal
search to some higher officer and in this respect, consent memo,
Ext. PW-18/A was prepared.
35. The perusal of consent memo, Ext. PW-18/A reveals
that number of FIR in this document is missing and the heading
thereof reads as “Fard Sehmati Patra under Section 50 of NDPS
Act”. According to the prosecution this memo was prepared on the
spot before conducting personal search of the respondent. Since
the specific case of the prosecution is that the raiding party had
proceeded for traffic checking and nakabandi with a view to
prevent the crime, then how this specific notice under Section 50
of the NDPS Act was given to the respondent and not for the
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possession of any other illegal thing like liquor, gold, forest
produce, wild animal body parts etc.etc.
36. Therefore, in such background of the matter since the
.
consent memo Ext. PW-18/A mentions only NDPS Act, as such, it
only leads to an inference that either the police had prior
information regarding the respondent being in possession of a
contraband punishable under the NDPS Act or that this document
was prepared not before the search of the respondent but after the
recovery of the charas.
37. In a similar situation, this Court in Criminal appeal No.
260 of 2014, titled State of H.P. Vs. Rajeev Kumar @ Rinku,
decided on 23.08.2024 acquitted the accused while holding that
since the police had prior information regarding the respondent
being in possession of charas but have not complied with the
requirement of Section 42(2) of the NDPS Act, which has vitiated
the trial. The relevant extract of the aforesaid judgment is
reproduced as under:-
“36. In this background, the fact that the document makes a
mention of only the NDPS Act can only lead to an inference that
the police had prior information regarding the respondent being
in possession of a contraband punishable under the NDPS Act
or that this document was prepared not before the search of the
respondent but after the recovery of the charas.
37. In either of the eventualities both these possibilities are
fatal to the case of the prosecution. If the police had information
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charas with him and it was a definitive information, then the
police was bound to comply with the requirement of Section 42
of the NDPS Act. The police had to reduce the information into
writing and send a copy thereof to his superior officer.
38. It was held by the Hon’ble Supreme Court in Smt.
.
Najmunisha vs. The State of Gujarat (2024) 4 SCC 411,that the
officer receiving the information regarding the narcotic is bound
to record the same and send it to the superior officer and failure
to do so will vitiate the trial.
xxxx
39. Thus, it would be evidently clear from the aforesaid
exposition of law that the provisions of Section 42 of the NDPS
Act are mandatory and its violation will vitiate the trial. 40.Here
the police had prior information regarding the respondent beingin possession or carrying charas but have not complied with the
requirement of Section 42(2) of the NDPS Act and this hasvitiated the trial and thus the respondent is entitled to be
acquitted on this ground alone. Moreover, the memo Ext.
PW4/A, does not even contain the number of the FIR which
again makes the entire prosecution case doubtful, especially
with regard to the so-called recovery alleged to have been
effected from the micron bag of the respondent.
38. In the instant case also since there is mention of
Section 50 of the NDPS Act in the consent memo, Ext. PW-18/A, it
can be reasonably inferred that the police had prior information
regarding the respondent’s being in possession of charas, but the
police had not complied with the requirement of Section 42(2) of
the NDPS Act, as such, the same had vitiated the trial and the
respondent is entitled to be acquitted on this ground also.
39. Thus, in view of what has been discussed hereinabove,
we are of the considered view that the prosecution has failed to
prove its case beyond the shadow of reasonable doubt and the
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learned trial Court has rightly acquitted the respondent and thejudgment of acquittal needs no interference as the same is the
result of appreciating the evidence correctly and to its true
.
perspective.
40. Accordingly, the appeal, which sans merits, deserves
dismissal and is accordingly dismissed. Pending application(s), if
any, stands disposed of. Bail bonds are discharged.
41. In view of the provisions of Section 437-A Code of
Criminal Procedure, 1973, the respondent is directed to furnish
personal bond in the sum of Rs. 50,000/- and a surety in the like
amount each, before the Registrar (Judicial) of this Court, which
shall be effective for a period of six months, with stipulation that in
the event of Special Leave Petition being filed against this
judgment or on grant of leave, the respondent, on receipt of notice
thereof, shall appear before the Hon’ble Supreme Court.
( Tarlok Singh Chauhan )
Judge( Sushil Kukreja )
Judge
September 04, 2024
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