PRADESH SHIMLA v. Prem Singh

The Hon(cid:146)ble Mr. Justice Surjit Singh, J. The Hon(cid:146)ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Ramesh Thakur Assistant Advocate General. For the respondent : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. Surjit Singh (Oral) State has appealed against the judgment dated 21.8.1995 of learned Additional Sessions Judge, Shimla, whereby respondent Prem Singh, who was charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. Case of the prosecution is that on

26.12.1994 when PW5 A.S.I. Kishan Singh 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - along with Head Constable Karanjeet Singh was present in the area of New Shimla, he spotted the respondent, who on seeing the police tried to withdraw and run away. He was overpowered on suspicion that he might be carrying some narcotic drugs or psychotropic substance. His consent was obtained for effecting his personal search. During the course of his search, charas, which he had concealed inside the sweater worn by him, was recovered which weighed 1.250 Kgs. Two samples weighing 10 grams each were separated. Samples and recovered stuff was made into separate parcels and the same were sealed with a seal which produced the impression of letter (cid:147)H(cid:148) of English alphabet. One sample was sent to the Chemical Examiner, who opined that the sample was of charas as it contained cannabis resin to the extent of

35.36%. Trial Court acquitted respondent mainly on the ground that the provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, which is mandatory in nature, had not been complied with. Reliance has been placed - 3 - by the trial Court on Supreme Court judgment in the case of State of Punjab versus Balbir Singh 1994 (1) Crimes

We learned Assistant Advocate General as also the learned counsel for the respondent and gone through the record. From the statement of PW5 A.S.I. Kishan Singh, it is clear that he wanted to carry out the search of the person of respondent because he felt that he might be carrying some narcotic drugs or psychotropic substance. This fact is borne out from the admission of a suggestion put to him in the cross-examination that he and other police official wanted to search the respondent, under the provisions of Narcotic Drugs and Psychotropic Substances Act. Section 50 of the Narcotic Drugs and Psychotropic Substances Act provides that when the search of a person is to be carried out on suspicion that he might be carrying on his person some narcotic drugs or psychotropic substance, such search is to be carried out in the presence of a - 4 - Gazetted Officer of a Department, notified under Section 41 of the Narcotic Drugs and Psychotropic Substances Act a Magistrate, if the person sought to be searched, so desires. In State of Punjab versus Balbir Singh (supra) it has been held that the person sought to be searched is required to be informed of his right to be searched before a Gazetted Officer of one of the notified Departments or a Magistrate, to enable him to opt for being searched in presence of such Gazetted Officer or Magistrate. In the present case, no option was given to the respondent that in case he so desires, search of his person could be carried out in the presence of a Magistrate or a Gazetted Officer. In view of the above stated position, we see no merit in the appeal. The same is therefore, dismissed. (Surjit Singh),J. November 13, 2009 (Surinder Singh),J (cm)