Himachal Pradesh High Court
State Of Himachal Pradesh vs Sher Singh on 1 April, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2025:HHC:8920-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. A. No.360/2015
Decided on : 01.04.2025
State of Himachal Pradesh …..Appellant
Versus
Sher Singh ….Respondent
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1NoFor the Appellant: Mr. Anup Rattan, A.G. with
Mr.Y.W.Chauhan, Mr. I.N.Mehta, Sr.
Addl. A.Gs., Mr. Ramakant Sharma, Ms.
Sharmila Patial, Addl. A.Gs. and Mr. Raj
Negi, Dy.A.G.
.
For the Respondent: Ms. Manjeet Banga, Advocate vice
Mr. Naveen K. Bhardwaj, Advocate.
____________________________________________________________
Justice Tarlok Singh Chauhan, Judge
Aggrieved by the acquittal of the respondent for the
commission of offence punishable under Section 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 ( in
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
2
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short, “the Act”), the appellant-State has filed the instant
appeal.
2 Briefly stated, case of the prosecution is that on
3.3.2010, in the evening, a police party, headed by PW9 Head
Constable Chaman Lal (Investigating Officer) comprising of PW1
Head Constable Paras Ram and HHC Chet Ram was present at
Check Post Bajaura where Head Constable Purshotam (PW-2),
HHC Bahadur Singh, HHC Tek and Head Constable Rakesh
Kumar were already present for patrolling duty and a dog squad
was also with them. At around 8:30 P.M. a bus bearing
registration No. PB-02-BF 9841 came from Bhuntar side, which
was signalled for stoppage by PW-9 and other police officials
and accordingly the said bus was stopped there. The rear door
of the bus was found locked from inside and thereafter PW9
Head Constable Chaman Lal alongwith PW1 Head Constable
Paras Ram and PW2 Head Constable Purshotam Ram boarded
the bus from the front door and asked the names of driver and
conductor of the bus, who, in turn, disclosed their names to be
PW11 Baldev Singh driver and PW10 Anup Singh conductor.
The police party associated PW10 and PW11 as witnesses and
3
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started searching the bus from driver side. On seeing the police
party, the respondent, who was found sitting on seat No. 27 in
the bus, got perplexed. The Investigating Officer suspected the
respondent to have some contraband in his possession and
accordingly, the respondent was asked about his name, who
disclosed his name to be Sher Singh. Thereafter the respondent
was given option to be searched either before a Gazetted Officer
or a Magistrate vide memo Ex.PW-2/A and the respondent
consented to be searched by the police officials. Thereafter PW9
Head Constable Chaman Lal gave his personal search to the
respondent inside the bus vide memo Ex.PW-2/B. At the time of
personal search of the respondent and his luggage, a polythene
bag was recovered from right pocket of the jeans of the
respondent. On being opened, polythene bag was found to be
containing black colour substance (charas). The recovered
charas was weighed with electronic scale outside the bus and
its weight was found to be 100 grams. The recovered
contraband was again put inside the said polythene bag and
other codal formalities qua sealing and seizure of the case
property were done.
4
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3 The investigating Officer also filled-in relevant
columns of NCB-1 form on the spot and sample seal was
obtained on piece of cloth, Ex.PW-2/C as well as on NCB-1
form Ex.PW-3/C and the case property was taken into
possession vide memo Ex.PW-2/D. Thereafter the Investigating
Officer prepared rukka Ex.PW-1/A and sent the same to Police
Station through PW1 Head Constable Paras Ram for
registration of case. The respondent was arrested vide memo
Ex.PW-2/F and his personal search was conducted vide memo
Ex.PW-2/E.
4 The case was further investigated by PW9 Head
Constable Chaman Lal, who prepared spot map Ex.PW-9/A and
recorded statements of witnesses under Section 161 Cr.P.C.
Formal FIR Ex.PW-7/B, on the basis of rukka, came to be
registered by PW7 Sub-Inspector Krishan Chand and on
reaching the Police Station the Investigating Officer produced
the case property, i.e., sealed parcel Ex.PA containing
polythene bag Ext. PB and contraband, Ex. PC. before the then
Station House Officer PW7 Sub-Inspector Krishan Chand. He
resealed the parcel with four seals of ‘T’ and after obtaining
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sample of seal on separate piece of cloth Ex.PW-7/C as well as
NCB-1 form handed over the case property alongwith samples
of seals, NCB-1 form and other relevant papers to the then
MHC PW3 Kartar Singh with the direction to deposit the same
in the Malkhana and to send the same to SFSL Junga for
chemical analysis. PW3, after making entry in the relevant
register, Ex.PW-3/A, sent the case property alongwith NCB-1
form, sample of seals ‘K’ and ‘T’ and other relevant papers
including docket Ex. PW-7/D through PW8 HHC Padam Singh
for depositing the same at SFSL Junga vide RC No. 28/2010,
vide Ex.PW-3/B. PW8 HHC Padam Singh, after depositing the
case property at SFSL Junga, handed over the receipt to the
MHC. The investigating Officer handed over special report Ex.
PW-5/A to the then Dy. S.P. Nihal Chand, who after making
endorsement thereon, Ex.PW-5/B handed over the same to his
Reader PW-5 ASI Harbans Kumar, who, in turn, made entry in
the relevant register, Ex.PW-5/C.
5 After obtaining SFSL report Ex.PW-6/A and on
completion of investigation, the challan was prepared and
6
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presented in the court and the respondent was produced to face
trial.
6 Upon consideration of the challan and other
documents annexed therewith, the court found prima facie case
against the respondent and accordingly, charge for the
commission of offence punishable under Section 20 of the Act
was framed against him, to which he pleaded not guilty and
claimed trial.
7 In order to prove its case, the prosecution examined
as many as 11 witnesses and closed its evidence.
8 Thereafter, the respondent was examined under
Section 313 Cr.P.C. in which he denied all set of incriminating
evidence led by the prosecution against him and claimed
himself to be innocent and falsely implicated. However, the
respondent did not lead any evidence.
9 The learned Special Judge after recording the
evidence and evaluating the same acquitted the respondent as
aforesaid, constraining the State to file the instant appeal.
10 It is vehemently argued by learned Advocate
General that the findings recorded by the learned court below
7
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are totally perverse, especially with regard to non-compliance of
Section 50 of the Act, which in the given facts and
circumstances was neither applicable nor attracted.
11 On the other hand, Ms. Manjeet Banga, learned vice
counsel for the respondent would support the impugned
judgment.
12 At this stage, it needs to be observed that even
though the prosecution would claim that it is a case of chance
recovery, but the documents speak otherwise and prove on
record that it was a case of prior information.
13 It is the case of the prosecution that prior to
conducting search of the respondent, PW9 Investigating Officer
had given his personal search to the respondent, but strangely
enough, the memo of search clearly mentions Section 20 of the
Act.
14 What makes things worse for the prosecution is that
in the memo issued to the respondent in purported compliance
to Section 50 of the Act not only the memo was served upon
him for offence punishable under Section 20 of the Act, but also
memo of consent was in fact issued under Section 50 of the Act
8
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and the memo further discloses that the consent had been
obtained only because Investigating Officer suspected the
respondent to be in possession of some narcotic substance.
15 Thus, it is clearly established that the Investigating
Officer had prior information regarding the respondent to be in
alleged possession of a substance punishable under Section 20
of the Act or else he would not have resorted to the action, as
stated above.
16 Once it is a case of prior information, then the
prosecution was required to comply with the mandatory
provisions of the Act in its letter and spirit, more especially
Section 42 of the Act.
17 It would be pertinent to refer to Section 42 of the
Act, which reads as under:-
“42. Power of entry, search, seizure and arrest without
warrant or authorisation.–
(1) Any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any
other department of the Central Government including
para-military forces or armed forces as is empowered in
this behalf by general or special order by the Central
Government, or any such officer (being an officer superior
9
( 2025:HHC:8920-DB )in rank to a peon, sepoy or constable) of the revenue,
drugs control, excise, police or any other department of a
State Government as is empowered in this behalf by
general or special order of the State Government, if he has
reason to believe from persons knowledge or information
given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled
substance in respect of which an offence punishable
under this Act has been committed or any document or
other article which may furnish evidence of the
commission of such offence or any illegally acquired
property or any document or other article which may
furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any
building, conveyance or enclosed place, may between
sunrise and sunset,—
(a) enter into and search any such building,
conveyance or place;
(b) in case of resistance, break open any door and
remove any obstacle to such entry;
(c) seize such drug or substance and all materials used
in the manufacture thereof and any other article and any
animal or conveyance which he has reason to believe to
be liable to confiscation under this Act and any document
or other article which he has reason to believe may
furnish evidence of the commission of any offence
punishable under this Act or furnish evidence of holding
10
( 2025:HHC:8920-DB )any illegally acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest
any person whom he has reason to believe to have
committed any offence punishable under this Act:
Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances, granted under this
Act or any rule or order made there under, such power
shall be exercised by an officer not below the rank of sub-
inspector:
Provided further that if such officer has reason to
believe that a search warrant or authorisation cannot be
obtained without affording opportunity for the
concealment of evidence or facility for the escape of an
offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset
and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in
writing under sub-section (1) or records grounds for his
belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official
superior.]
18 Thus, a close perusal of Section 42 of the NDPS Act
would reveal that if any such officer has reason to believe from
personal knowledge or information given by any person and
taken down in writing that any narcotic drug, or psychotropic
11
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substance, or controlled substance in respect of which an
offence punishable under this Act has been committed is kept
or concealed in any building, conveyance or enclosed place, he
may enter into and search any such building, conveyance or
place between sunrise and sunset and shall within seventy-two
hours send a copy of the information/ grounds of his belief to
his immediate superior officer. Further if such officer has
reason to believe that search warrant or authorization cannot
be obtained without affording opportunity for the concealment
of evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed place
at any time between sunset and sunrise after recording the
grounds of his belief and he shall within seventy-two hours
send a copy thereof to his immediate superior official.
19 Hon’ble Supreme Court in a catena of decisions held
that violation of Section 42 of the Act vitiates the entire trial. In
the case of Karnail Singh v. State of Haryana (2009) 8 SCC
539, a Constitution Bench of the Hon’ble Supreme Court
considered Sections 42 and 50 of the Act. Paragraphs 1, 2 and
35 of the above judgment read as under:
12
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“1. In Abdul Rahsid Ibrahim Mansuri v. State of Gujarat,
(2000) 2 SCC 513, a three-Judge Bench of this Court held
that compliance with Section 42 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to
as “NDPS Act“) is mandatory and failure to take down the
information in writing and forthwith send a report to his
immediate official superior would cause prejudice to the
accused. In the case of Sajan Abraham vs. State of
Kerala, (2001) 6 SCC 692, which was also decided by a
three-Judge Bench, it was held that Section 42 was not
mandatory and substantial compliance was sufficient.
2 In view of the conflicting opinions regarding the
scope and applicability of Section 42 of the Act in the
matter of conducting search, seizure and arrest without
warrant or authorization, these appeals were placed
before the Constitution Bench to resolve the issue.
35. In conclusion, what is to be noticed is that Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the requirements of Sections 42(1) and
42(2) need not be fulfilled at all. The effect of the two
decisions was as follows:
[a] The Officer on receiving the information [of the nature
referred to in sub-section (1) of Section 42] from any
person had to record it in writing in the register concerned
and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of
clauses (a) to (d) of Section 42(1).
13
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[b] But if the information was received when the officer
was not in the police station, but while he was on the
move either on patrol duty or otherwise, either by mobile
phone, or other means, and the information calls for
immediate action and any delay would have resulted in
the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing
the information given to him, in such a situation, he could
take action as per clauses (a) to (d) of Section 42 (1) and
thereafter, as soon as it is practical, record the information
in writing and forthwith inform the same to the official
superior.
[c] In other words, the compliance with the
requirements of Sections 42(1) and 42(2) in regard to
writing down the information received and sending a copy
thereof to the superior officer, should normally precede the
entry, search and seizure by the officer. But in special
circumstances involving emergent situations, the recording
of the information in writing and sending a copy thereof to
the official superior may get postponed by a reasonable
period, that is, after the search, entry and seizure. The
question is one of urgency and expediency.
[d] While total non-compliance with requirements of
subsections (1) and (2) of Section 42 is impermissible,
delayed compliance with satisfactory explanation about
the delay will be acceptable compliance with Section 42.
To illustrate, if any delay may result in the accused
escaping or the goods or evidence being destroyed or
removed, not recording in writing the information received,
14
( 2025:HHC:8920-DB )before initiating action, or non sending of a copy of such
information to the official superior forthwith, may not be
treated as violation of Section 42. But if the information
was received when the police officer was in the police
station with sufficient time to take action, and if the police
officer fails to record in writing the information received, or
fails to send a copy thereof, to the official superior, then it
will be a suspicious circumstance being a clear violation of
Section 42 of the Act. Similarly, where the police officer
does not record the information at all, and does not inform
the official superior at all, then also it will be a clear
violation of Section 42 of the Act. Whether there is
adequate or substantial compliance with Section 42 or not
is a question of fact to be decided in each case. The above
position got strengthened with the amendment to Section
42 by Act 9 of 2001.”
20 In Boota Singh & others vs. State of Haryana,
(2021) 19 Supreme Court Cases 606, the Hon’ble Supreme
Court has held as under:
“15. It is an admitted position that there was total non-
compliance of the requirements of Section 42 of the NDPS
Act.
16. The decision of this Court in Karnail Singh (Karnail
Singh v. State of Haryana, (2009) 8 SCC 539) as followed
in Jagraj Singh (State of Rajasthan v. Jagraj Singh, (2016)
11 SCC 687), is absolutely clear. Total non-compliance of
Section 42 is impermissible. The rigors of Section 42 may
15
( 2025:HHC:8920-DB )get lessened in situations dealt with in the conclusion
drawn by this Court in Karnail Singh but in no case, total
non-compliance of Section 42 can be accepted.”
21 In Najmunisha vs. State of Gujarat, AIR 2024
Supreme Court 2778, the Hon’ble Supreme Court held 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. The relevant paras of the
aforesaid judgments are as under:
31. From the perusal of provision of Section 42(1) of the
NDPS Act 1985, it is evident that the provision obligates
an officer empowered by virtue of Section 41(2) of the
NDPS Act 1985 to record the information received from
any person regarding an alleged offence under Chapter IV
of the NDPS Act 1985 or record the grounds of his belief
as per the Proviso to Section 42(1) of the NDPS Act 1985 in
case an empowered officer proceeds on his personal
knowledge. While the same is to be conveyed to the
immediate official superior prior to the said search or raid,
in case of any inability to do so, the Section 42(2) of the
NDPS Act provides that a copy of the same shall be sent to
the concerned immediate official superior along with
grounds of his belief as per the proviso hereto. This
relaxation contemplated by virtue of Section 42(2) of the
NDPS Act 1985 was brought about through the
Amendment Act of 2001 to the NDPS Act of 1985 wherein
16
( 2025:HHC:8920-DB )prior to this position, the Section 42(2) mandated the copy
of the said writing to be sent to the immediate official
superior “forthwith”.
32. The decision in Karnail Singh (supra) has been
extensively referred by the learned Counsel for the
Appellants and at the cost of repetition, it is observed that
absolute non-compliance of the statutory requirements
under the Section 42(1) and (2) of the NDPS Act 1985 is
verboten. However, any delay in the said compliance may
be allowed considering the same is supported by well-
reasoned explanations for such delay. This position
adopted by the instant 5-Judges’ Bench of this Court is
derived from the ratio in the decision in Balbir Singh
(supra) which is a decision by a 3-Judges’ Bench of this
Court.
33. Another 3-Judges’ Bench while dealing with
compliance of Section 42 of the NDPS Act 1985 in
Chhunna alias Mehtab v. State of Madhya Pradesh (2002)
9 SCC 363 dealt with criminal trial wherein there was an
explicit non-compliance of the statutory requirements
under the NDPS Act 1985. It was held that the trial of the
Petitioner-Appellant therein stood vitiated. For a better
reference, the judgment is quoted below as:
“1. The case of the prosecution was that at 3.00 a.m. a
police party saw opium being prepared inside a room and
they entered the premises and apprehended the accused
who was stated to be making opium and mixing it with
chocolate.
17
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2. It is not in dispute that the entry in search of the
premises in question took place between sunset and
sunrise at 3.00 a.m. This being the position, the proviso to
Section 42 of the Narcotic Drugs and Psychotropic
Substances Act was applicable and it is admitted that
before the entry for effecting search of the building neither
any search warrant or authorisation was obtained nor
were the grounds for possible plea that if opportunity for
obtaining search warrant or authorisation is accorded the
evidence will escape indicated. In other words, there has
been a noncompliance with the provisions of the proviso to
Section 42 and therefore, the trial stood vitiated.”
22 Thus, in the aforesaid decisions of the Hon’ble
Supreme Court, it has clearly been held that where the
empowered officer does not record the information at all and
does not inform the official superior at all, then, it is a clear
violation of Section 42 of the Act. The punishments provided
under the Act are deterrent in nature. The Legislature in its
wisdom imposed several safeguards so as to see that the penal
provisions of the Act may not be abused. In the instant case,
the Investigation Officers did not record the information and
also did not inform the official superior(s) at all as such it is a
clear violation of Section 42 of the Act.
18
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23 In addition to above, it was the specific case of the
prosecution that the contraband was recovered from the right
pocket of the jeans of the respondent and was contained in a
polythene bag.
24 In such circumstances, the prosecution was
mandatorily required to follow the provisions of Section 50 of
the Act.
25 Even though the learned Advocate General would
claim that the provisions of Section 50 of the Act have been
complied with by affording an opportunity to the respondent
to be searched either before a gazetted officer or a gazetted
police officer and the respondent had consented to be searched
before the police, however, from the entire evidence, which has
been placed on record by the prosecution, even taken on its
face value, would reveal that the investigating agency has failed
to comply with the mandatory provisions of the Act.
26 In the case of Arif Khan @ Agha Khan Vs. State of
Uttarakhand (2018) 18 SCC (380), Hon’ble Supreme Court
has held that it is mandatory on the part of the authorized
19
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officer to make the suspect 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. Further
that the suspect person may or may not choose to exercise the
right provided to him under Section 50 of the Act but so far as
the officer is concerned, an obligation is cast upon him under
Section 50 of the Act to apprise the suspect of his right to be
searched before a Gazetted Officer or a Magistrate. Para Nos.18
to 20 of the aforesaid judgment read as follows:
“18. What is the true scope and object of Section 50 of the
NDPS Act, what are the duties, obligation and the powers
conferred on the authorities under Section 50 and whether
the compliance of requirements of Section 50 are
mandatory or directory, remains no more res integra and
are now settled by the two decisions of the Constitution
Bench of this Court in State of Punjab vs. Baldev Singh
(1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja
(supra).
19. Indeed, the latter Constitution Bench decision
rendered in the case of Vijaysinh Chandubha Jadeja
(supra) has settled the aforementioned questions after
taking into considerations all previous case law on the
subject.
20. Their Lordships have held in Vijaysinh Chandubha
Jadeja (supra) that the requirements of Section 50 of the
20
( 2025:HHC:8920-DB )NDPS Act are mandatory 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 a Gazetted officer or a
Magistrate. It is held that it is equally mandatory on the
part of the authorized officer to make the suspect 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 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. (See also Ashok Kumar Sharma
vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics
Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC
392).”
27 In a recent judgment Ranjan Kumar Chadha vs.
State of Himachal Pradesh, AIR 2023 Supreme Court
5164, the Hon’ble Supreme Court has extensively addressed
the scope and object of Section 50 of the Act and laid down the
guidelines by holding that search, seizure and recovery of
contraband not made in the presence of any Magistrate or
Gazetted Officer and non-compliance with the mandatory
21
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procedure under Section 50 of NDPS Act,1985 is fatal to the
prosecution case. It has been held as under:
“33. Ordinarily, it could be said or argued that “to search
any person” would mean, to search the articles on the
person or body of the person to be searched and would
normally not include the articles which are not on the
body of the person to be searched. When we are
deliberating on the scope and true purport of Section 50 of
the NDPS Act, we should bear in mind that the main
object of Section 50 of the NDPS Act is to avoid the
allegation of planting something or fabricating evidence by
the prosecution or the authorized officer. … … … … … …
………
36. Considering the aforesaid provisions, the inference
which can be drawn is that “to search any person” would
mean only search of the body or wearing apparels of such
person and in that case the procedure which is required to
be followed would be the one prescribed under Section 50
of the NDPS Act. In contrast, if search of any building,
conveyance or place, including a public place, is to be
carried out, then there is no question of following the
procedure prescribed under Section 50. However, when a
suspected or arrested person is to be searched, then the
procedure prescribed under Section 50 comes into
operation and the procedure thereunder is required to be
followed. This can be seen by referring to Section 100(3) of
the CrPC 1973 which provides that where any person is
reasonably suspected of concealing about his person any
22
( 2025:HHC:8920-DB )article for which search should be made, such person may
be searched and if such person is a woman, the search
shall be made by another woman with strict regard to
decency. The concealment which is suspected is on the
person or about his person.
64. From the aforesaid discussion, the requirements
envisaged by Section 50 can be summarised as follows:-
(i) Section 50 provides both a right as well as an
obligation. The person about to be searched has the right
to have his search conducted in the presence of a
Gazetted Officer or Magistrate if he so desires, and it is
the obligation of the police officer to inform such person of
this right before proceeding to search the person of the
suspect.
(ii) Where, the person to be searched declines to exercise
this right, the police officer shall be free to proceed with
the search. However, if the suspect declines to exercise
his right of being searched before a Gazetted Officer or
Magistrate, the empowered officer should take it in writing
from the suspect that he would not like to exercise his
right of being searched before a Gazetted Officer or
Magistrate and he may be searched by the empowered
officer.
(iii) Before conducting a search, it must be communicated
in clear terms though it need not be in writing and is
permissible to convey orally, that the suspect has a right
of being searched by a Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of either
being searched in presence of a Gazetted Officer or
23
( 2025:HHC:8920-DB )Magistrate must be given, who also must be independent
and in no way connected to the raiding party.
(v) In case of multiple persons to be searched, each of
them has to be individually communicated of their right,
and each must exercise or waive the same in their own
capacity. Any joint or common communication of this right
would be in violation of Section 50.
(vi) Where the right under Section 50 has been exercised,
it is the choice of the police officer to decide whether to
take the suspect before a Gazetted Officer or Magistrate
but an endeavour should be made to take him before the
nearest Magistrate.
(vii) Section 50 is applicable only in case of search of
person of the suspect under the provisions of the NDPS
Act, and would have no application where a search was
conducted under any other statute in respect of any
offence.
(viii) Where during a search under any statute other than
the NDPS Act, a contraband under the NDPS Act also
happens to be recovered, the provisions relating to the
NDPS Act shall forthwith start applying, although in such
a situation Section 50 may not be required to be complied
for the reason that search had already been conducted.
(ix) The burden is on the prosecution to establish that the
obligation imposed by Section 50 was duly complied with
before the search was conducted.
(x) Any incriminating contraband, possession of which is
punishable under the NDPS Act and recovered in violation
of Section 50 would be inadmissible and cannot be relied
24
( 2025:HHC:8920-DB )upon in the trial by the prosecution, however, it will not
vitiate the trial in respect of the same. Any other article
that has been recovered may be relied upon in any other
independent proceedings.”
28 By applying the aforesaid principles in the case at
hand, since there is total violation of mandatory provisions of
Section 50 of the Act, the recovery of the alleged contraband
stands vitiated. Therefore, we are of the considered view that
the view taken by the learned Special Judge while acquitting
the respondent is reasonable based on the evidence and the
same cannot be said to be either perverse or contrary to the
material available on record.
29 In view of the aforesaid discussions and for the
reasons stated above, we find no merit in the instant appeal
and the same is accordingly dismissed so also the pending
application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
1.4.2025 Judge
(pankaj)
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