Himachal Pradesh High Court
State Of Himachal Pradesh vs Vikram Alias Vicky on 4 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2025:HHC:4601-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. A. No. 141/2015
Reserved on: 01.03.2025
Decided on : 04.03.2025
State of Himachal Pradesh …..Appellant
Versus
Vikram alias Vicky ….Respondent
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1No
For the Appellant: Mr. Yashwardhan Chauhan, Senior
Additional Advocate General with
Mr. Navlesh Verma, Additional
Advocate General and Mr. Raj Negi,
Deputy Advocate General.
.
For the Respondent: Mr. Yudhvir Singh Thakur,
Advocate.
____________________________________________________________________
Justice Tarlok Singh Chauhan, JudgeAggrieved by the acquittal of the respondent under
Section 20 of the Narcotic Drugs and Psychotropic Substances
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
2
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Act, 1985 ( in short, “the Act”), the appellant-State has filed the
instant appeal.
2 Briefly stated, the case of the prosecution is that on
31.3.2010 at about 7.30 P.M., when the police party headed by
ASI Bodh Raj was present on the public road near Kainchi Mod
Bhava bifurcation, they noticed the accused/respondent
coming from Bagipul side and on seeing the police party, he got
perplexed and tried to run away from the spot. On suspicion,
the respondent was nabbed by the police party and thereafter
he was informed by the Investigating Officer that police
intended to carry out his personal search. The respondent was
apprised about his right to be searched either before a Gazetted
Officer or a Magistrate. However, the respondent consented to
give his personal search to the police party. Consequently, the
Investigating Officer gave his personal search. Thereafter the
personal search of respondent was conducted and one white
colour cloth was found tied around his waist. The police party
opened the said cloth, in which 500 grams charas was alleged
to have been found. The charas was weighed on the spot and
thereafter it was put in the same white cloth and sealed in
another cloth parcel with impression ‘A’. The contraband was
3
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taken into possession vide separate recovery memo. The sample
of seal was drawn by the Investigating Officer. The NCB form in
triplicate was filled in. Rukka was prepared by the Investigating
Officer and sent it to Police Station, Nirmand through HHC
Diwan Chand. MHC registered the FIR and the case file was
handed over to HHC Diwan Chand on the spot. Investigating
Officer prepared the site plan and thereafter he along with the
respondent came to the Police Station and deposited the case
property along with relevant documents with the MHC who
incorporated the entry of the same in his register.
3 During investigation, the case property was sent to
chemical examination and Chemical Examiner’s report was
received. The Investigating Officer prepared special report and
submitted the same to the SDPO. On the conclusion of
investigation, the challan was prepared and presented in the
court and the respondent was produced to face trial.
4 Upon consideration of the challan and other
documents annexed therewith, the court finds prima facie case
and accordingly, charges were framed against the respondent,
to which he pleaded not guilty and claimed trial.
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5 In order to prove its case, the prosecution examined
as many as 8 witnesses and closed its evidence.
6 On the basis of evidence adduced by the
prosecution, 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 stated that he was innocent
and falsely implicated. However, the respondent despite
opportunity did not choose to lead evidence in his defence.
7 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.
8 At the outset, it needs to be noticed that one of the
main grounds which weighed with the learned Special Judge
for acquitting the respondent is non-compliance of Section 50
of the Act.
8 It is not in dispute that before carrying on with the
search of the respondent, the prosecution chose to obtain the
consent of the respondent vide Ex. PW6/A which is in
vernacular and reads as under:-
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फद सहमि प
िन िल ख गबाहान के सामने ईमरोज िदनांक 31.3.2010 को व
मुकाम सड़क कै ी मोड़ बाहवा गांव सड़क रिव ा रामपुर ता
बागीपुल के पास शाम समय करीब 7.30 बजे मजकूरा िव म @
िवकी पु सोम िसह जात िसख (मजहबी) गांव रामपुरा गली न . 6
ब ी डा. रामपुरा तहसील फूला थाना रामपुरा िजला भिट ा पंजाब
के पास शक मादक भाँ ग िम ण (चरस) होने पर मजकूरा से
तलाशी लेने की सहमती के बारे पूछा गया की आपके पास अवैध ब ु
भांग िम ण चरस है ा आप अपनी जमा तलाशी िकसी मिज े ट
राजपि त अिधकारी को या हाजरीन पुिलस को दे ना चाहता है फद
सहमित प मौका पर मुराव ईI
9 It is shocking to note that the Investigating Officer
admittedly even without conducting search of the person of
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 of provisions of the Act.
11 A perusal of consent memo would further go to
indicate that the option has been sought from the respondent
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to be searched before the Magistrate or a Gazetted Officer or the
police party and according to the prosecution, the respondent
has opted to be searched before the police party present at the
spot.
12 It has been held by the Hon’ble Supreme Court in
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
shall be apt to reproduce relevant observations as contained in
para 19 thereof, which reads as under:
“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 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
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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.”
13 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, wherein it was observed as under:-
“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 circumstance that the accused
gave his search to the police party. Giving 3rd option to the
accused was clearly contrary to the mandatory provisions
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of Section 50 of the Act. In the case titled State of
Rajasthan versus Parmanand and Another, (2014) 5
SCC 345, it has been held by the Hon’ble Apex Court that
such a 3rd 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 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.”
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Relying upon the above judgment, in 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,
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:
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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 thereof,
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: –
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“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 to 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
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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 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.”
14 The legal position was thereafter reiterated by
the Hon’ble Supreme Court in Dayalu Kashyap v. State
of Chhattisgarh, (2022) 12 SCC 398, wherein it was
observed as under:
13
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“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.”
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15 Similar reiteration of law can yet again be
found in a fairly recent judgment of the Hon’ble Supreme
Court in Ranjan Kumar Chadha v. State of H.P., 2023
SCC OnLine SC 1262:AIR 2023 SC 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 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 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
15( 2025:HHC:4601-DB )
NDPS Act stood violated for giving a third option of
being searched before a police officer.”
16 In Ranjan Kumar Chadha‘s case (supra),
the Hon’ble Supreme Court further held 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 carry out the search himself. It is
apt to reproduce relevant observations as contained in
paras 62 to 66 thereof, which read as under:-
“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 Section 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
16( 2025:HHC:4601-DB )
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
VijaysinhChandubha 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 VijaysinhChandubha 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
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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 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
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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.
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
19( 2025:HHC:4601-DB )
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 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
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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, 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.
17 Adverting to the facts of the present case, the
empowered officer has not taken in writing from the suspect
i.e. respondent herein that he would not like to exercise his
right of being searched before the Magistrate or a Gazetted
21
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Officer and he would be searched by the empowered officer and
therefore, this vitiates compliance of provisions of Section 50 of
the Act.
18 It is no longer res integra that the violation of
Section 50 of the Act is fatal and the police cannot rely upon
the recovery so effected in violation of this Section.
19 We may with profit refer to the judgment of
Constitution Bench of the Hon’ble Supreme Court in
VijaysinhChandubha Jadeja vs State of Gujarat (2011) 1
SCC 609, wherein it was observed as under:-
“29. In view of the foregoing discussion, we are of the firm
opinion that the object with which right under Section
50(1) of the NDPS Act, by way of a safeguard, has been
conferred on the suspect, viz. to check the misuse of
power, to avoid harm to innocent persons and to minimise
the allegations of planting or foisting of false cases by the
law enforcement agencies, it would be imperative on the
part of the empowered officer to apprise the person
intended to be searched of his right to be searched before
a gazetted officer or a Magistrate. 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
22( 2025:HHC:4601-DB )
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. Thereafter, the suspect may or may
not choose to exercise the right provided to him under the
said provision.”
20 Similar reiteration of law can be found in Arif
Khan @ Agha Khan versus State of Uttarakhand AIR 2018
SC 2123, wherein it was observed as under: –
“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
23( 2025:HHC:4601-DB )
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 compliance as required in
law, the appellant is entitled to claim its benefit to seek
his acquittal.”
21 As observed above, the record reveals that the
respondent was also told that he could be searched before the
police and only then he opted to be searched by the police,
which is insufficient compliance with Section 50 of the Act and
the prosecution cannot rely upon the recovery effected as a
result of search conducted in violation of Section 50 of the Act.
22 Apart from the above, it would be noticed that the
recovery in the instant case has been effected from the person
24
( 2025:HHC:4601-DB )
of the respondent because the witnesses have stated that the
respondent had tied one piece of cloth around his waist from
which 500 grams of charas was recovered, yet none of them
has specifically stated that how the Investigating Officer came
to know that the substance found in the cloth tied by the
respondent around his waist was charas.
23 There is nothing in the testimony of the
Investigating Officer or the other officials witnesses that he or
any one of them had tested the aforesaid substance and on the
basis of experience they came to the conclusion that the
substance was charas.
24 Further none of the prosecution witnesses has
stated that the substance recovered from the respondent was
weighed and then it was found to be 500 grams.
25 Lastly and more importantly, the prosecution has
failed to comply with the provisions of Section 42 (2) of the Act.
As held in para-10 (supra) that the instant case is one of prior
information and not of chance recovery as is evident from the
consent memo Ex. PW6/A, therefore, provisions of Section 42(2)
of the Act were scrupulously required to be followed.
25
( 2025:HHC:4601-DB )
26 In a similar situation, this Court in Criminal
appeal No. 260 of 2014, titled State of H.P. Vs. Rajeev
Kumar @ Rinku, decided on 23.08.2024 acquitted the
accused while holding that since the police had prior
information regarding the respondent being in possession of
charas but have not complied with the requirement of Section
42(2) of the Act, which has vitiated the trial. The relevant
extract of the aforesaid judgment is reproduced as under:-
“36. In this background, the fact that the document makes
a mention of only the NDPS Act can only lead to an
inference that the police had prior information regarding
the respondent being in possession of a contraband
punishable under the NDPS Act or that this document was
prepared not before the search of the respondent but after
the recovery of the charas.
37. In either of the eventualities both these possibilities
are fatal to the case of the prosecution. If the police had
information that the respondent might be carrying or in
possession of charas with him and it was a definitive
information, then the police was bound to comply with the
requirement of Section 42 of the NDPS Act. The police had
to reduce the information into writing and send a copy
thereof to his superior officer.
38. It was held by the Hon’ble Supreme Court in Smt.
Najmunisha vs. The State of Gujarat (2024) 4 SCC 411,
that the officer receiving the information regarding the
26( 2025:HHC:4601-DB )
narcotic is bound to record the same and send it to the
superior officer and failure to do so will vitiate the trial.
xxxx
39. Thus, it would be evidently clear from the aforesaid
exposition of law that the provisions of Section 42 of the
NDPS Act are mandatory and its violation will vitiate the
trial. 40. Here the police had prior information regarding
the respondent being in possession or carrying charas but
have not complied with the requirement of Section 42(2) of
the NDPS Act and this has vitiated the trial and thus the
respondent is entitled to be acquitted on this ground
alone. Moreover, the memo Ext.PW4/A, does not even
contain the number of the FIR which again makes the
entire prosecution case doubtful, especially with regard to
the so-called recovery alleged to have been effected from
the micron bag of the respondent.
27 Since the prosecution has failed to prove mandatory
compliance of sections 42(2) and 50 of the Act, which itself is
fatal to the prosecution, the other grounds, on which the
respondent has been acquitted by the learned Special Judge
need not be gone into. The view taken by the learned Special
Judge is possible and plausible one and the same warrants for
no interference.
27
( 2025:HHC:4601-DB )
28 In view of aforesaid discussions and for the reasons
stated hereinabove, we find no merit in the instant petition and
the same is accordingly dismissed so also the pending
application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
4.3.2025 Judge
(pankaj/yogesh)
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