Himachal Pradesh High Court
Charanjit Singh vs State Of H.P on 5 May, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 362 of 2023
Reserved on: 09.04.2025
Date of Decision: 05.5.2025
Charanjit Singh
…Appellant
Versus
State of H.P.
…Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Appellant : Ms. Shikha Chauhan, Advocate.
For the Respondent/State : Mr. Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
of conviction and order of sentence dated 13.04.2023, passed
by learned Special Judge, Sundernagar, District Mandi, H.P.,
vide which the appellant (accused before learned Trial Court)
was convicted of the commission of an offence punishable
under Section 20 of Narcotic Drugs and Psychotropic
Substances Act (hereinafter to be referred as ‘the ND&PS Act‘)
and was sentenced to undergo rigorous imprisonment for four
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
years, pay a fine of ₹20,000/- and in default of payment of fine
to undergo further rigorous imprisonment for six months for the
commission of the aforesaid offence. (Parties shall hereinafter
be referred to in the same manner as they were arrayed before
the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the
accused for the commission of an offence punishable under
Section 20 of the ND&PS Act. It was asserted that HC Ram Lal
(PW9), H.C. Sanjeev Kumar (PW6), HHC Kishori Lal, Constable
Chet Ram, and LHC Deena Nath had set up the nakka at
Naulakha to check vehicles on 19.06.2014. They stopped a bus
bearing registration number PB-12Q-9952, which was coming
from Manali and going to Chandigarh. The police began
checking the luggage of the passengers. The passenger
occupying the last seat became frightened. H.C. Ram Lal, along
with conductor Pavitar Singh (PW1), inquired about the name of
the passenger, who revealed his name as Charanjit Singh (the
accused). H.C. Ram Lal informed the accused that he (H.C. Ram
Lal) suspected that the accused was carrying narcotics, and
that the accused had the right to be searched before a
Magistrate or Gazetted Officer. The accused consented to a
search by the police. A memo (Ex. PW1/B) was prepared. The
3
police party gave their personal search to the accused, and
nothing incriminating was found in their possession. Memo
(Ex.PW1/A) was prepared. H.C. Ram Lal conducted the personal
search of the accused and recovered one polythene packet
(Ex.P2) from the right pocket of the accused’s pants.The packet
was checked, and it was found to contain black sticks (Ex. P3).
These were identified as cannabis. H.C. Ram Lal weighed the
cannabis along with the polythene packet, finding its total
weight to be 202 grams. He weighed the cannabis without the
packet, which weighed 195 grams. He placed the cannabis
back into the polythene packet in the same manner as it was
recovered. He then placed the polythene packet into a cloth
parcel and sealed it with six seals marked ‘H’. He filled out the
relevant sections of the NCB-1 form (PW4/E) in triplicate and
applied the seal impression ‘H’ on the form. He obtained a
specimen seal impression (Ex. PW1/C) on a separate piece of
cloth and handed over the seal to H.C. Sanjeev Kumar (PW6)
after its use. He took photographs (Ex.PW9/A/1 to
Ex.PW9/A/4). He seized the parcel, NCB-1 form in triplicate, and
sample seal vide memo (Ex. PW1/D). He prepared a rukka
(Ex.PW9/B) and handed it over to LHC Deena Nath (PW7) with
instructions to take it to the police station at BSNL Colony,
Sundernagar. LHC Deena Nath delivered the rukka to Rattan
4
Singh (PW4), who registered the FIR (Ex. PW4/A) and returned
the case file to LHC Deena Nath with instructions to take it to
the spot. ASI Ram Lal prepared a site plan (Ex.PW9/C) and
recorded statements of the witnesses as per their accounts. He
arrested the accused vide memo (Ex. PW9/D) and conducted
his personal search vide memo (Ex. PW6/A). He presented the
accused and the case file before Rattan Singh (PW4). Rattan
Singh checked the seals of the parcel and resealed it with six
seals marked ‘T’, and obtained the sample seal on a separate
cloth (Ex. PW4/D). He prepared a memo of resealing (PW4/C),
filled columns 9 to 11 of the NCB-1 form, and applied seal ‘T’ on
the form. He handed over the case property, documents, and
sample seals to LHC Nand Lal (PW8), who made an entry in the
malkhana register at serial No. 306 (Ex.PW8/A) and stored the
case property in the malkhana. He transported the parcel,
sample seals, and documents to FSL Junga vide R.C No. 35 of
2014 (Ex.PW8/B) dated 20.06.2014 and safely handed them
over to the officials at FSL Junga. H.C. Ram Lal prepared a
special report (Ex.PW2/A) and delivered it to
Addl. Superintendent of Police Kulbhushan Verma (PW3) on
20.06.2014. Kulbhushan Verma made the endorsement
(Ex.PW3/A) on the special report and handed it to HHC Sant
Ram, his Reader, who entered it in the concerned register and
5
retained the report on record. The chemical analysis result
(Ex.PW9/E) stated that the exhibit was an extract of cannabis
and a sample of charas, which contained 26.22 per cent w/w
resin. The statements of the remaining witnesses were
recorded as per their accounts. After completing the
investigation, the challan was prepared and presented before
the learned Trial Court.
3. The learned Trial Court charged the accused with
the commission of an offence punishable under Section 20 of
the ND&PS Act, to which he pleaded not guilty and claimed to
be tried.
4. The prosecution examined nine witnesses to prove
its case. Pavitar Singh (PW1) is the conductor of the bus. HHC
Sant Ram (PW2) was working as a Reader to Addl.
Superintendent of Police Kulbhushan Verma (PW3). Rattan
Singh (PW4) signed the FIR and re-sealed the case property.
HHC Nand Lal (PW5) proved the entries in the daily diary. ASI
Sanjeev Kumar (PW6) and HHC Deena Nath (PW7) are the
witnesses to recovery. Nand Lal (PW8) was the additional
malkhana In-charge, to whom the case property was handed
over and who carried it to FSL Junga. ASI Ram Lal (PW9)
conducted the investigation.
6
5. The accused in his statement recorded under
Section 313 of CrPC admitted that the police party was on
patrolling duty and they spotted the bus bearing registration
number PB-12Q-9952. He admitted that he was occupying seat
no. 48, but he denied that he was carrying any objectionable
material. He admitted that he disclosed his name to the police.
He denied the rest of the prosecution’s case. He stated that
witnesses deposed falsely against him, and he was innocent.
He did not produce any defence evidence.
6. The learned Trial Court held that the testimonies of
the prosecution witnesses corroborated each other. Minor
contradictions in the statements were not sufficient to doubt
the prosecution’s case. The accused was informed of his right
to be searched before a Gazetted Officer or Magistrate, and
there was sufficient compliance with regard to the requirement
of Section 50 of the NDPS Act. The testimonies of the police
officials cannot be discarded on the ground that they are the
official witnesses. The failure to join an independent witness is
not fatal to the prosecution’s case. Minor contradictions are
bound to come in the testimonies of the witnesses when they
are examined after a long time, and these are not sufficient to
discard the prosecution’s case. Hence, the accused was
7
convicted of the commission of an offence punishable under
Section 20 of the ND&PS Act and sentenced as aforesaid.
7. Being aggrieved by the judgment and order passed
by the learned Trial Court, the accused has filed the present
appeal, asserting that the learned Trial Court erred in
appreciating the evidence on record. Pavitar Singh (PW1) has
not supported the prosecution’s case. There was non-
compliance with Section 50 of the NDPS Act. The seal was
never produced before the Court, and non-production of the
seal is fatal to the prosecution’s case. Therefore, it was prayed
that the present be appeal be allowed and the judgment and
order passed by the learned Trial Court be set aside.
8. I have heard Ms. Shikha Chauhan, learned counsel
for the appellant/accused, and Mr. Jitender Sharma, learned
Additional Advocate General for the respondent/State.
9. Ms. Shikha Chauhan, learned counsel for the
appellant/accused, submitted that the learned Trial Court erred
in convicting and sentencing the accused. There were various
contradictions in the testimonies, which made the prosecution’s
case suspect. There was non-compliance with Section 50 of the
NDPS Act. The seal was not produced before the Court, and the
same is fatal to the prosecution’s case. Therefore, she prayed
8
that the present appeal be allowed and the judgment and order
passed by the learned Trial Court be set aside.
10. Mr Jitender Sharma, learned Additional Advocate
General, for the respondent/State, supported the judgment and
order passed by the learned Trial Court and submitted that no
interference is required with it.
11. I have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
12. It was specifically mentioned in the rukka and was
also stated on oath by Ram Lal (PW9), Deena Nath (PW7) and
Sanjeev Kumar (PW6) that the personal search of the accused
was conducted during which a polythene packet was recovered
from right pocket of the pants of the accused which he was
wearing. It was laid down by the Hon’ble Supreme Court in
State of H.P. Versus Pawan Kumar (2005) 4 SCC 350 that
the word person includes the body of a human being as
presented to public view, usually with its appropriate coverings
and clothing. It was observed: –
“10. We are not concerned here with the wide definition
of the word “person”, which in the legal world includes
corporations, associations or bodies of individuals, as
factually, in these types of cases, a search of their
premises can be done and not of their person. Having
regard to the scheme of the Act and the context in which
9it has been used in the section, it naturally means a
human being or a living individual unit and not an
artificial person. The word has to be understood in a
broad, common-sense manner and, therefore, not the
naked or nude body of a human being but the manner in
which a normal human being will move about in a
civilised society. Therefore, the most appropriate
meaning of the word “person” appears to be – “the body
of a human being as presented to public view, usually
with its appropriate coverings and clothing”. In a civilised
society, appropriate coverings and clothing are
considered absolutely essential, and no sane human
being comes into the gaze of others without appropriate
coverings and clothing. The appropriate coverings will
include footwear also, as normally it is considered an
essential article to be worn while moving outside one’s
home. Such appropriate coverings or clothing, or
footwear, after being worn, move along with the human
body without any appreciable or extra effort. Once worn,
they would not normally get detached from the body of
the human being unless some specific effort in that
direction is made. For interpreting the provision, rare
cases of some religious monks and sages, who,
according to the tenets of their religious belief, do not
cover their body with clothing, are not to be taken notice
of. Therefore, the word “person” would mean a human
being with appropriate coverings and clothing and also
footwear.
13. Therefore, clothes are included in the definition of a
person as per the judgment of the Hon’ble Supreme Court.
14. In the present case, the recovery was made from the
right pocket of the jeans worn by the accused. Thus, the
recovery was made from the person of the accused. Section 50
of the ND&PS Act deals with the search of a person. It reads as
under: –
“50. Conditions under which the search of persons shall
10be conducted.
(1) When any officer duly authorised under Section 42 is
about to search any person under the provisions of
Section 42 or Section 43, he shall, if such person as
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.
(2) If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer
or the Magistrate referred to in sub-section (1).
(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.
(4) No female shall be searched by anyone except a
female.
(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the
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.
15. Thus, the police were required to comply with
Section 50 of the NDPS Act and to inform the accused of his
right to be searched before a Magistrate or Gazetted Officer.
16. The consent memo (Ex. PW1/B) mentions that the
accused was told that he could give his search to the Gazetted
Officer or the Magistrate, which was his right. The accused wrote
11
in Punjabi that he wanted to give his search to the police. There
is no explanation of how the accused opted to be searched by
the police. He was only given an option to be searched before a
Magistrate or a Gazetted Officer. Therefore, he could have only
chosen to be searched before a Magistrate or a Gazetted Officer.
If no option to be searched by the police was given to the
accused, he could not have opted to be searched by the police.
He could have declined to be searched by the Magistrate or the
Gazetted Officer, but without being informed that he could be
searched before the police, he could not have mentioned
specifically that he wanted to be searched before the police.
This shows that the accused was given an option to be searched
by the police as well, and that is why he opted to be searched
by the police. It was laid down by the Hon’ble Supreme Court in
the State of Rajasthan Vs. Parmanand & another (2014) 5
SCC 345, that Section 50 only provides an option to be
searched before a Magistrate or a Gazetted Officer, and it does
not provide for a third option to be searched before the police. It
was observed:
“19. We also notice that PW-10 SI Qureshi informed the
respondents that they could be searched before the
nearest Magistrate, before the nearest gazetted officer
or before PW-5 J.S. Negi, the Superintendent, who was a
part of the raiding party. It is the prosecution’s case that
the respondents informed the officers that they would
like to be searched before PW-5 J.S. Negi by PW-10 SI
12Qureshi. This, in our opinion, is again a breach of Section
50(1) of the NDPS Act. The idea behind taking an
accused to the nearest Magistrate or a nearest gazetted
officer, if he so requires, is to give him a chance of being
searched in the presence of an independent officer.
Therefore, it was improper for PW-10 SI Qureshi to tell
the respondents that a third alternative was available
and that they could be searched before PW-5 J.S. Negi,
the Superintendent, who was part of the raiding party.
PW-5 J.S. Negi cannot be called an independent officer.
We are not expressing any opinion on the question of
whether, if the respondents had voluntarily expressed
that they wanted to be searched before PW-5 J.S. Negi,
the search would have been vitiated or not. But PW-10 SI
Qureshi could not have given a third option to the
respondents when Section 50(1) of the NDPS Act does
not provide for it, and when such an option would
frustrate the provisions of Section 50(1) of the NDPS Act.
On this ground also, in our opinion, the search conducted
by PW-10 SI Qureshi is vitiated.”
17. The law regarding the third option given to the
accused was exhaustively considered by this Court in Pradeep
Singh alias Rocky vs State of Himachal Pradesh, 2020(1)
Him. L.R. 133, and it was held that giving the third option to
the accused is fatal. It was observed:
“3(iii)(c). Under the provisions of Section 50 of the Act,
the accused has to be informed about his legal rights
regarding search before a Magistrate or Gazetted Officer.
3(iii)(d). In the instant case, the consent memo
(Ext.PW-1/A), obtained from the accused, shows that in
addition to the two statutory options of search before the
Magistrate or the Gazetted Officer, a 3rd option was also
given to the accused for getting himself searched before
any other police officer. It is in such circumstances that
the accused gave his search to the police party. Giving
3rd option to the accused was clearly contrary to the
mandatory provisions of Section 50 of the Act. In the
case titled State of Rajasthan versus Parmanand
13and Another, (2014) 5 SCC 345, it has been held by
the Hon’ble Apex Court that such a 3 rd option could not
be given when there was no provision under Section
50(1) of the Act. Relevant para of the said judgment is
reproduced as under: –
“19. We also notice that PW-10 SI Qureshi informed
the respondents that they could be searched
before the nearest Magistrate, or before the
nearest gazetted officer or before PW-5 J.S. Negi,
the Superintendent, who was a part of the raiding
party. It is the prosecution’s case that the
respondents informed the officers that they would
like to be searched before PW-5 J.S. Negi by PW-10
SI Qureshi. This, in our opinion, is again a breach of
Section 50(1) of the NDPS Act. The idea behind
taking an accused to the nearest Magistrate or a
nearest gazetted officer, if he so requires, is to give
him a chance of being searched in the presence of
an independent officer. Therefore, it was improper
for PW-10 SI Qureshi to tell the respondents that a
third alternative was available and that they could
be searched before PW-5 J.S. Negi, the
Superintendent, who was part of the raiding party.
PW-5 J.S. Negi cannot be called an independent
officer. We are not expressing any opinion on the
question whether, if the respondents had
voluntarily expressed that they wanted to be
searched before PW-5 J.S. Negi, the search would
have been vitiated or not. But PW-10 SI Qureshi
could not have given a third option to the
respondents when Section 50(1) of the NDPS Act
does not provide for it, and when such an option
would frustrate the provisions of Section 50(1) of
the NDPS Act. On this ground also, in our opinion,
the search conducted by PW-10 SI Qureshi is
vitiated.”
Relying upon the above judgment, in a case titled SK.
Raju alias Abdul Haque alias Jagga versus State of
West Bengal, (2018) 9 SCC 708 Hon’ble Apex Court
further observed thus: –
“18. In Parmanand, on a search of the person of
the respondent, no substance was found. However,
14
subsequently, opium was recovered from the bag
of the respondent. A two-judge Bench of this Court
considered whether compliance with Section 50(1)
was required. This Court held that the empowered
officer was required to comply with the
requirements of Section 50(1) as the person of the
respondent was also searched. [Reference may
also be made to the decision of a two-judge Bench
of this Court in Dilip v State of M.P.] It was held
thus: (Parmanand, SCC p.351, para 15).
“15. Thus, if merely a bag carried by a
person is searched without there being any
search of his person, Section 50 of the NDPS
Act will have no application. But if the bag
carried by him is searched and his person is
also searched, Section 50 of the NDPS Act
will have an application.
19. Moreover, in the above case, the empowered
officer at the time of conducting the search
informed the respondent that he could be searched
before the nearest Magistrate, before the nearest
gazetted officer or before the Superintendent, who
was also a part of the raiding party. The Court held
that the search of the respondent was not in
consonance with the requirements of Section 50(1)
as the empowered officer erred in giving the
respondent an option of being searched before the
Superintendent, who was not an independent
officer.”
Effect of giving the 3rd option:
3(iii)(e). The effect of illegality committed during the
course of the search of the accused has been considered
by the Hon’ble Apex Court in titled State of H.P. versus
Pawan Kumar, (2005) 4 SCC 350, wherein, after
considering various judgements on the question, it was
observed thus: –
“26. The Constitution Bench decision in Pooran
Mal v. The Director of Inspection, (1974) 1
SCC 345 was considered in State of Punjab v.
Baldev Singh and having regard to the scheme of
the Act and especially the provisions of Section 50
15thereof, it was held that it was not possible to hold
that the judgment in the said case can be said to
have laid down that the “recovered illicit article”
can be used as “proof of unlawful possession” of
the contraband seized from the suspect as a result
of illegal search and seizure. Otherwise, there
would be no distinction between the recovery of
illicit drugs, etc., seized during a search conducted
after following the provisions of Section 50 of the
Act and a seizure made during a search conducted
in breach of the provisions of Section 50. Having
regard to the scheme and the language used, a
very strict view of Section 50 of the Act was taken,
and it was held that failure to inform the person
concerned of his right as emanating from sub-
Section (1) of Section 50 may render the recovery
of the contraband suspect and sentence of an
accused bad and unsustainable in law. As a
corollary, there is no warrant or justification for
giving an extended meaning to the word “person”
occurring in the same provision so as to include
even some bag, article or container or some other
baggage being carried by him.”
In a case titled State of H.P. versus Rakesh 2018
LHLJ 214 (HP), this Court observed as under: –
“18. ……………………………………………………………..
Now, in view of the above, this Court has to
examine whether the provisions of Section 50 of
the NDPS Act are applicable to the present case
and, if applicable, then whether those have been
breached or not. Admittedly, as per the version of
PW-3, HC Chaman Lal, he has conducted the
personal search of both the accused persons and
also prepared search memos, Ex. PW-3/P and Ex.
PW-3/Q. If only the bag of the accused persons
would have been searched, then Section 50 of the
NDPS Act has no application, but as the personal
search of the accused persons was also conducted,
certainly Section 50 of the NDPS Act is applicable.
In fact, Section 50 of the NDPS Act has a purpose
and communication of the said right, which is
ingrained in Section 50, to the person who is about
16to be searched, is not an empty formality. Offences
under the NDPS Act carry severe punishment, so
the mandatory procedure, as laid down under the
Act, has to be followed meticulously. Section 50 of
the Act is just a safeguard available to an accused
against the possibility of false involvement. Thus,
communication of this right to the accused has to
be clear, unambiguous and to the individual
concerned. The purpose of this Section is to make
aware the accused of his right, and the whole
purpose behind creating this right is effaced if the
accused is not able to exercise the same for want
of knowledge about its existence. This right cannot
be ignored, as the same is of utmost importance to
the accused. In the present case, certainly, the
provisions of Section 50 of the NDPS Act have not
been complied with; therefore, the judgment
(supra) is fully applicable to the facts of the
present case.
19. In State of Himachal Pradesh vs. Desh Raj &
another,2016 Supp HimLR 3088 (DB), this Court has
relied upon the law laid down in Parmanand‘s case
(supra). Relevant paras of the judgment of this Court are
extracted hereunder:
“18. Their Lordships of the Hon’ble Supreme Court
in State of Rajasthan v. Parmanand, (2014) 5
SCC 345, have held that there is a need for
individual communication to each accused and
individual consent by each accused under Section
50 of the Act. Their lordships have also held that
Section 50 does not provide for the third option.
Their lordships have also held that if a bag carried
by the accused is searched and his personal search
is also started, Section 50 would be
applicable. ……”
Again, in the present set of facts and circumstances, the
judgment (supra) is fully applicable to the present case,
as the right provided under Section 50 of the NDPS Act in
no way can be diluted, and its compliance is mandatory
in nature.”
Therefore, the combined effect of the law laid
down by the Hon’ble Apex Court, as applied to
17
the facts of the case in hand, is that non-
compliance to the mandatory provisions of
Section 50 of the Act has vitiated the
proceedings related to search and recovery.
Point is, therefore, answered in favour of
appellant.”
18. This position was reiterated in Dayalu Kashyap v.
State of Chhattisgarh, (2022) 12 SCC 398: 2022 SCC
OnLine SC 334, wherein it was observed at page 400:
“4. The learned counsel submits that the option given to
the appellant to take a third choice other than what is
prescribed as the two choices under sub-section (1) of
Section 50 of the Act is something which goes contrary
to the mandate of the law and in a way affects the
protection provided by the said section to the accused.
To support his contention, he has relied upon the
judgment of State of Rajasthan v. Parmanand [State
of Rajasthan v. Parmanand, (2014) 5 SCC 345:
(2014) 2 SCC (Cri) 563], more specifically, SCC para
19. The judgment, in turn, relied upon a Constitution
Bench judgment of this Court in State of Punjab v.
Baldev Singh [State of Punjab v. Baldev Singh,
(1999) 6 SCC 172: 1999 SCC (Cri) 1080] to conclude
that if a search is made by an empowered officer on prior
information without informing the person of his right that
he has to be taken before a Gazetted Officer or a
Magistrate for search and in case he so opts, failure to
take his search accordingly would render the recovery of
the illicit article suspicious and vitiate the conviction and
sentence of the accused where the conviction has been
recorded only on the basis of possession of illicit articles
recovered from his person. The third option stated to be
given to the accused to get himself searched from the
Officer concerned, not being part of the statute, the
same could not have been offered to the appellant, and
thus, the recovery from him is vitiated.”
19. A similar view was taken in Ranjan Kumar Chadha
v. State of H.P., 2023 SCC OnLine SC 1262: AIR 2023 SC
18
5164, wherein it was observed:
“27. We have no hesitation in recording a finding that
Section 50 of the NDPS Act was not complied with, as the
appellant could not have been offered the third option of
a search to be conducted before the ASI. Section 50 of
the NDPS Act only talks about a Gazetted Officer or
Magistrate. What is the legal effect if an accused of the
offence under the NDPS Act is being told whether he
would like to be searched before a police officer or a
Gazetted Officer, or a Magistrate?
28. This Court in State of Rajasthan v. Parmanand,
(2014) 5 SCC 345, held that it is improper for a police
officer to tell the accused that a third alternative is also
available, i.e. the search before any independent police
officer. This Court also took the view that a joint
communication of the right available under Section 50 of
the NDPS Act to the accused would frustrate the very
purport of Section 50…..
29. Thus, from the oral evidence on the record as
discussed above, it is evident that Section 50 of the
NDPS Act stood violated for giving a third option of being
searched before a police officer.”
20. It was further held in Ranjan Kumar Chadha
(supra) that the investigating officer should give an option to the
accused to be searched before the Magistrate or the Gazetted
Officer; the accused can decline to avail of such option, and the
investigating officer can search the accused himself. It was
observed:
“62. Section 50 of the NDPS Act only goes so far as to
prescribe an obligation to the police officer to inform the
suspect of his right to have his search conducted either
in the presence of a Gazetted Officer or Magistrate.
Whether or not the search should be conducted in the
presence of a Gazetted Officer or Magistrate ultimately
depends on the exercise of such right as provided under
19Section 50. In the event the suspect declines this right,
there is no further obligation to have his search
conducted in the presence of a Gazetted Officer or
Magistrate, and in such a situation, the empowered
police officer can proceed to conduct the search of the
person himself. To read Section 50 otherwise would
render the very purpose of informing the suspect of his
right a redundant exercise. We are of the view that the
decision of this Court in Arif Khan (supra) cannot be
said to be an authority for the proposition that
notwithstanding the person proposed to be searched
has, after being duly apprised of his right to be searched
before a Gazetted Officer or Magistrate, but has
expressly waived this right in clear and unequivocal
terms; it is still mandatory that his search be conducted
only before a Gazetted Officer or Magistrate.
63. A plain reading of the extracted paragraphs of Arif
Khan (supra) referred to above would indicate that this
Court while following the ratio of the decision of the
Constitution Bench in Vijaysinh Chandubha Jadeja
(supra) held that the same has settled the position of law
in this behalf to the effect that, whilst it is imperative on
the part of the empowered officer to apprise the person
of his right to be searched only before a Gazetted Officer
or Magistrate; and this requires strict compliance; this
Court simultaneously proceeded to reiterate that in
Vijaysinh Chandubha Jadeja (supra) “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”.
64. There is no requirement to conduct the search of the
person suspected to be in possession of a narcotic drug
or a psychotropic substance, only in the presence of a
Gazetted Officer or Magistrate if the person proposed to
be searched after being apprised by the empowered
officer of his right under Section 50 of the NDPS Act to be
searched before a Gazetted Officer or Magistrate
categorically waives such right by electing to be
searched by the empowered officer. The words “if such
person so requires”, as used in Section 50(1) of the NDPS
Act, would be rendered otiose if the person proposed to
be searched would still be required to be searched only
20
before a Gazetted Officer or Magistrate despite having
expressly waived “such requisition”, as mentioned in the
opening sentence of sub-Section (2) of Section 50 of
the NDPS Act. In other words, the person to be searched
is mandatorily required to be taken by the empowered
officer for the conduct of the proposed search before a
Gazetted Officer or Magistrate only “if he so requires”
upon being informed of the existence of his right to be
searched before a Gazetted Officer or Magistrate and not
if he waives his right to be so searched voluntarily, and
chooses not to exercise the right provided to him under
Section 50 of the NDPS Act.
65. However, we propose to put an end to all
speculations and debate on this issue of the suspect
being apprised by the empowered officer of his right
under Section 50 of the NDPS Act to be searched before
a Gazetted Officer or Magistrate. We are of the view that
even in cases wherein the suspect waives such right by
electing to be searched by the empowered officer, such
waiver on the part of the suspect should be reduced into
writing by the empowered officer. To put it in other
words, even if the suspect says that he would not like to
be searched before a Gazetted Officer or Magistrate, and
he would be fine if his search is undertaken by the
empowered officer, the matter should not rest with just
an oral statement of the suspect. The suspect should be
asked to give it in writing duly signed by him in presence
of the empowered officer as well as the other officials of
the squad that “I was apprised of my right to be
searched before a Gazetted Officer or Magistrate in
accordance with Section 50 of the NDPS Act, however, I
declare on my own free will and volition that I would not
like to exercise my right of being searched before a
Gazetted Officer or Magistrate and I may be searched by
the empowered officer.” This would lend more credence
to the compliance of Section 50 of the NDPS Act. In other
words, it would impart authenticity, transparency and
creditworthiness to the entire proceedings. We clarify
that this compliance shall henceforth apply
prospectively.
21
66. 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 it is permissible to convey orally
that the suspect has a right to be searched by a
Gazetted Officer or Magistrate.
(iv) While informing the right, only two options of
either being searched in the presence of a
Gazetted Officer or 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 rights, 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
22should be made to take him before the nearest
Magistrate.
(vii) Section 50 is applicable only in case of search
of the 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, 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 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.”
21. Pavitar Singh (PW1) stated that the police asked
the accused, Charan Jeet, whether he wanted to be searched
before the senior officer, but he replied that he wanted to be
searched before the police present on the spot. He was not
declared hostile by the prosecution, which means that his
testimony was accepted as correct. The prosecution’s case that
the accused was told about his right to be searched before a
Magistrate or a Gazetted Officer is not corroborated by him.
23
22. Pavitar Singh (PW1) stated that the police party had
not given any notice to the accused before his search. The
police party and the accused person got off the bus and then
prepared the documents by sitting on the road side. Memos
(Ex. PW1/A and Ex. PW1/B) were prepared on the road. H.C.
Ram Lal (PW9) also stated in his cross-examination that the
consent memo (Ex. PW1/B) was prepared outside the bus. This
corroborates the statement of Pavitar Singh that documents
were prepared outside the bus on the road. This shows that the
option to be searched before the Magistrate or Gazetted Officer
was not given to the accused before the search.
23. Therefore, there was non-compliance with the
provisions of Section 50 of the NDPS Act. It was laid down by
the Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja
vs State of Gujarat (2011) 1 SCC 609 that violation of
Section 50 of the NDPS Act is fatal, and the police cannot rely
upon the recovery effected in violation of Section 50 of the
NDPS Act. It was observed: –
“29. …… We have no hesitation to hold that in so far 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
illicit articles suspect and vitiate the conviction if the
same is recorded only on the basis of recovery of an
illicit article from the person of the accused during such
search.”
24
24. This position was reiterated in Arif Khan @ Agha
Khan versus State of Uttarakhand AIR 2018 SC 2123,
wherein it was observed: –
“28. First, it is an admitted fact emerging from the
record of the case that the appellant was not produced
before any Magistrate or Gazetted Officer. Second, it is
also an admitted fact that due to the aforementioned
first reason, the search and recovery of the contraband
“Charas” was not made from the appellant in the
presence of any Magistrate or Gazetted Officer. Third, it
is also an admitted fact that none of the police officials of
the raiding party who recovered the contraband
“Charas” from him was the Gazetted Officer, nor they
could be and, therefore, they were not empowered to
make search and recovery from the appellant of the
contraband “Charas” as provided under Section 50 of the
NDPS Act except in the presence of either a Magistrate
or a Gazetted Officer; Fourth, in order to make the
search and recovery of the contraband articles from the
body of the suspect, the search and recovery has to be
in conformity with the requirements of Section 50 of the
NDPS Act. It is, therefore, mandatory for the prosecution
to prove that the search and recovery was made from
the appellant in the presence of a Magistrate or a
Gazetted Officer.
29. Though the prosecution examined as many as five
police officials (PW-1 to PW-5) of the raiding police party,
none of them deposed that the search/recovery was
made in the presence of any Magistrate or a Gazetted
Officer.
30. For the aforementioned reasons, we are of the
considered opinion that the prosecution was not able to
prove that the search and recovery of the contraband
(Charas) made from the appellant was in accordance
with the procedure prescribed under Section 50 of the
NDPS Act. Since the non-compliance of the mandatory
procedure prescribed under Section 50 of the NDPS Act
is fatal to the prosecution case and, in this case, we have
found that the prosecution has failed to prove
25compliance as required in law, the appellant is entitled to
claim its benefit to seek his acquittal.”
25. Thus, the conclusion of the learned Trial Court that
there was sufficient compliance with Section 50 of the NDPS Act
is not correct. The prosecution has failed to prove the
compliance of Section 50 of the NDPS Act, and it cannot rely
upon the recovery effected as a result of a search conducted in
violation of Section 50 of the NDPS Act.
26. Pavitar Singh (PW1) stated in his cross-examination
that the police party had asked the accused for their personal
search, but the accused said that he could not check the police.
He admitted that the accused had not searched the police. This
part of his testimony makes the prosecution’s case highly
doubtful that the police had given their search to the accused
before his search.
27. The consent memo (Ex.PW1/B) specifically mentions
that the Investigating Officer had a reason to believe that the
accused possessed narcotics with him; hence, his search was to
be conducted. It was laid down by the Hon’ble Division Bench of
this Court in State of H.P. Vs. Vikram @ Vicky,
2025:HHC:4601, that when the Investigating Officer had
mentioned about the possession of the narcotic by the accused,
it was a case of prior information which required compliance
with the various provisions of the NDPS Act. It was observed:-
26
“9. It is shocking to note that the Investigating Officer,
admittedly, even without conducting a search of the
person of the respondent, very well knew that he was
carrying the contraband, as is evident from the reading
of the consent memo (supra).
10. Therefore, clearly it is a case of prior information and
not that of chance recovery, which requires strict
compliance with the provisions of the Act.”
28. Learned Trial Court did not advert to these
infirmities and relied upon the statements of police officials.
Therefore, the judgment and order passed by the learned Trial
Court are not sustainable.
29. In view of the above, the present appeal is allowed
and the judgment and order passed by the learned Trial Court
are set aside and the accused is acquitted of the charged
offence. The accused be released from custody if not required
in any other case. The fine amount, if deposited by the
accused/appellant, be refunded to him after the expiry of the
statutory period of limitation in case no appeal is preferred, and
in case of appeal, the same be dealt with as per orders of the
Hon’ble Apex Court.
30. In view of the provisions of Section 437-A of the
Code of Criminal Procedure [Section 481 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS)], the appellant/accused is
directed to furnish his personal bond in the sum of ₹25,000/-
with one surety in the like amount to the satisfaction of the
27
learned Registrar (Judicial) of this Court/learned Trial Court,
within four weeks, which shall be effective for six months with
stipulation that in the event of Special Leave Petition being filed
against this judgment, or on grant of the leave, the
appellant/accused, on receipt of notice thereof, shall appear
before the Hon’ble Supreme Court.
31. A copy of this judgment, along with the records of
the learned Trial Court, be sent back forthwith. Pending
miscellaneous application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla)
Judge
05 May 2025 (G.M)
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