Criminal Appeal where the State appealed against the acquittal of the accused on charges of carrying charas. The High Court examined whether there was a violation or prejudice under Section 50 of the NDPS Act during the search.
The criminal appeal by the State is dismissed. The order of acquittal passed by the Court below is upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No. 323 of 1999
Judgment reserved on : 14.6.2010
Date of Decision : July 9 , 2010
State of Himachal Pradesh Appellant Versus Ved Parkash Respondent
Coram:
The Hon’ble Mr. Justice Deepak Gupta, Judge
The Hon’ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting?1 No.
For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant/State. For the respondent : Mr. Hoshiyar Kaushal, Advocate, vice Mr. Karan Singh Kanwar, Advocate, for the respondent/accused.
Sanjay Karol, J.
For an offence, which is alleged to have been committed on 27.12.1997, accused was put to trial. In terms of judgment dated 3.4.1999 passed by the learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 21-N/7 of 1998, titled as State of H.P. versus Ved Parkash, the accused stands acquitted of the charged offence.
Whether reports of Local Papers may be allowed to see the judgment?
2
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the case property was taken to the Dy. S.P. where it was again resealed with seal impression-M. On 27.1.1998, Constable Sanjay Kumar (PW-6) was deputed to deposit the sample parcel of charas with C. T. L. Kandaghat for chemical examination. The same was duly deposited and report (Ext. PN) obtained there from.
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“50. Conditions under which search of persons shall be conducted. –
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the
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person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.]”
It was thereafter held as follows:
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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 )
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(Deepak Gupta), Judge.
(Sanjay Karol), Judge.
July 9 , 2010 (PK)
2 issues framed by the court
Whether the High Court can interfere with the acquittal of an accused where the search was conducted without informing him of his right to opt for a Magistrate or Gazetted Officer.
Whether the lack of support from independent witnesses renders the prosecution case fatal.
Colour shows how this judgement treated each authority
State of Punjab versus Baldev SinghExplained¶10
State of Punjab versus Baldev Singh, 1999(6) SCC 172 · Who else cites this
Vijaysinh Chandubha Jadeja v. State of GujaratExplained¶11
Vijaysinh Chandubha Jadeja v. State of Gujarat, 2007 (1) SCC 433 · Who else cites this
Man Bahadur versus State of H.P.Explained¶12
Man Bahadur versus State of H.P. JT 2008 (10) SC 518 · Who else cites this
Mohammed Ankoos and others versus Public ProsecutorRelied on¶15
Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 · Who else cites this
1 provisions across 1 enactments
State of Himachal Pradesh
Ved Parkash
Deepak Gupta
Sanjay Karol
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
