Sanjay Karol, JAssailing the judgment dated 18.1.2008, passed by learned Addl. Sessions Judge, Fast Track Court Solan, Distt. Solan, H.P., in Case No. 23-FTC/7 of 2007, titled as State of Himachal Pradesh vs. Prem Singh, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

2. It is the case of prosecution that on 3.12.2006, police party comprising of SI Madan Lal (PW-7), HC Rajbinder (PW-9), constables Parminder (PW-1) and Nanak Chand were on routine patrol duty at Saproon Chowk. At about 5.30 a.m., on suspicion, accused was apprehended and after associating independent witnesses Sunil Kumar (PW-2) and Rakesh Chauhan (not examined), searched. His consent vide memo (Ext. PW-1/A) was obtained. From the pocket of the jacket worn by the accused, charas wrapped in a polythene packet, which upon weighment was found to be 530 grams was recovered. Two samples of 25 grams each were drawn from the recovered contraband. The bulk parcel as well as the sample parcels were sealed with seal impression-N and seized vide memo (Ext. PW-1/C). NCB form (Ext. PW-4/B), in triplicate, was filled up on the spot. Ruka (Ext. PW-1/D) sent through Constable Parminder (PW-1), led to registration of F.I.R. No. 327 of 2006, dated 3.12.2006, (Ext. PW-4/A), at Police Station Sadar, Distt. Solan, against the accused under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Accused was arrested. With the completion of proceedings on the spot, police party returned to the police station where case property was resealed by S.H.O. Ramesh Sharma (PW-4) with his seal impression-C and deposited in the maalkhana under the charge of MHC Sunit Kumar (PW-3). Special report (Ext. PW-1/E) was sent to the superior officer through Constable Parminder (PW-1). Report of the Central Forensic Science Laboratory, Chandigarh (Ext. PX) revealed the contraband substance to be charas. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

3. Accused was charged for having committed an offence punishable under the provisions of Section 20(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he did not plead guilty and claimed trial.

4. In order to prove its case, in all, prosecution examined nine witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.

5. Court below acquitted the accused for the reason that prosecution could not prove its case, beyond reasonable doubt. Hence the present appeal.

6. We have heard Mr. Ashok Chaudhary, learned Addl. Advocate General ably assisted by Mr. V.S. Chauhan, learned Addl. A.G. and Mr. J.S. Guleria, Asstt. A.G., on behalf of the State as also Mr. Vishal Panwar, learned counsel for the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

8. In Prandas Vs. The State, AIR 1954 SC 36 , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight 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. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

9. In the instant case, as has emerged from the testimonies of SI Madan Lal (PW-7), HC Rajbinder (PW-9), constable Parminder (PW-1) and Sunil Kumar (PW-2), accused was apprehended and searched on suspicion of carrying some psychotropic substance. Ext. PW-1/A is the memo issued under Section 50 of the Act. Perusal thereof only shows infraction of mandatory provisions of law. The option is not at all in accordance with the statutory requirement mandating the police official of informing the accused of his right of being searched by a Gazetted Officer or a Magistrate.

10. A Constitution Bench of the Apex Court in State of Punjab Vs. Baldev Singh, etc. etc., AIR 1999 SC 2378 : (1999) CriLJ 3672 : (1999) 157 CTR 3 : (1999) 65 ECC 695 : (1999) ECR 545 : (1999) 81 FLR 303 : (1999) 4 JT 595 : (1999) 1 LLJ 254 : (1994) 4 SCALE 144 : (1999) AIRSCW 2494 : (1999) 6 Supreme 159 , has clearly held that the accused has a right to be made aware of his right to get searched before a Magistrate or a Gazetted Officer. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda vs. Arizona, 384 US 436, in Navjot Sandhu (supra) , the Constitution Bench held that, although, such communication itself may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable persons witnessing the arrest and search.

It was thereafter held as follows:

"57. On the basis of the reasoning and discussion above, the following conclusions arise:

(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 officer or 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 Magistrate would cause prejudice to an accused."

(emphasis supplied)

11. A three-Judge Bench of Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2005) 12 SCC 574 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh (Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate.

12. Thereafter, the Apex Court in Man Bahadur Vs. State of H.P., AIR 2009 SC 369 : (2009) CriLJ 391 : (2008) 10 JT 518 : (2008) 12 SCALE 801 again followed the aforesaid judgments and held that not only consent of the accused should be taken but the accused must also be informed of his right to get himself searched in the presence of the Magistrate.

13. This Court in Ashok Kumar versus State of H.P. Latest HLJ 2009 (HP) 557 has clearly held that if the consent memo does not show that the accused was informed that he had a right to be searched before a Magistrate or a Gazetted Officer the search is not in conformity with Section 50 of the Act.

14. In view of the law laid down, the accused must be informed about his right also, and since this was admittedly not done, there is violation of Section 50 of the Act.

15. That apart, we find there is material contradiction in the testimonies of witnesses who carried out search and seizure operations. According to constable Parminder (PW-1), accused was apprehended on the main road. However, according to SI Madan Lal (PW-7) and HC Rajbinder (PW-9) it was inside the gully. Thus the place where accused was apprehended is itself in doubt. This renders the story of prosecution, emanating through the evidence of constable Parminder (PW-1), Sunil Kumar (PW-2), SI Madan Lal (PW-7) and HC Rajbinder (PW-9), of the accused fleeing away and having been apprehended on the spot to be doubtful.

16. Further there is contradiction as to who carried out the search of the accused. Constable Parminder states that it was ASI Madan Lal which version stands contradicted by HC Rajbinder who claims to have done so himself. Also how many seals were embossed on the sealed parcels remains in doubt. It is not certain as to whether it was one or more than that which was embossed. Also what totally knocks down the prosecution case is contradiction in the version of spot witnesses with regard to the pocket from which recovery was affected. SI Madan Lal states it was from the right pocket of the jacket worn by the accused whereas according to other witness it was from the left pocket. All the contradictions being germane to the matter, renders the prosecution case to be extremely doubtful.

17. We further find that even by way of link evidence, prosecution has not been able to establish its case. In the maalkhana register (Ext. PW-3/A) there is no reference of either NCB form or seals having been deposited with the MHC (PW-3). This acquires significance in view of the fact that Road Certificate (Ext. PW-3/B) also does not record the samples of seals - N and C having been sent to the laboratory. The lacuna stands amplified in view of non examination of HHC Krishan Kumar who carried the sample to the laboratory for chemical analysis. No doubt MHC Sunit Kumar (PW-3) states that the sample, kept in a safe custody, was deposited by Krishan Kumar but then during the course of transit whether it was kept safe and not tampered with, remains unexplained and unestablished on record. Recovery itself being in doubt required corroboration.

18. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

19. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., AIR 2010 SC 566 : (2010) CLT 222 : (2010) CriLJ 861 : (2009) 14 JT 6 : (2009) 13 SCALE 584 : (2010) 1 SCC 94 : (2009) 15 SCR 616 : (2009) 10 UJ 4781 , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.