Dismissed

State of Hp v. Raj Kumar Alias Raju

Himachal Pradesh HC10 Dec 2024CR.A/216/2014

Case brief

AI extract

What is this about?

State appeal against acquittal under Section 20 NDPS Act for recovery of 475 grams charas from a bag tied to the accused's stomach. The High Court found non-compliance with Section 50 due to an impermissible third option to be searched by police, plus material contradictions in official witnesses' testimony, and dismissed the appeal.

What did the court decide?

Appeal dismissed; respondent directed to furnish bail bonds of Rs.25,000 with one surety within four weeks under S.437-A CrPC/S.481 BNSS, effective six months.

State of Hp Vs Raj Kumar Alias Raju — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:13853-DB )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 216 of 2014 Reserved on: 02.12.2024 Date of Decision: 10.12.2024

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State of H.P. ...Appellant Versus Raj Kumar @ Raju ...Respondent Coram Hon’ble Mr Justice Vivek Singh Thakur, Judge. Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes : For the Appellant/State Ms. Seema Sharma, Deputy Advocate General. For the Respondent : Mr. Varun Chauhan and Mr. Bhairav Gupta, Advocates.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment dated 12.11.2013, passed by learned Special Judge, Kullu, District Kullu, H.P. (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances (NDPS) Act. (Parties

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shall be referred to in the same manner as they were arrayed before

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the learned Trial Court for convenience).

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that ASI-Gambhir Chand (PW6), HC-Gian Chand, Constable-Khub Ram (PW2), and Constable-Sangat Ram (PW5) were present at Trakda on National Highway-21 on 21.06.2012 in an official vehicle bearing registration No. HP-34A-9986, which was being driven by Constable Karam Chand. They saw the accused coming from Talogi towards Kullu. He returned after seeing the police vehicle and started running away. ASI-Gambhir Chand (PW6) apprehended the accused. The accused revealed his name as Raj Kumar on inquiry. The place was lonely and deserted and no independent person was available. ASI-Gambhir Chand sent Constable Khub Ram (PW2) towards Talogi to search for an independent person. Khub Ram returned after 15 minutes and revealed that no independent witness was available. ASIGambhir Chand associated HC-Gian Chand and Constable-Khub Ram as witnesses. He informed the accused that he had a legal right to be searched before a Magistrate or a Gazetted Officer. The accused opted to be searched by the police vide memo (Ext.

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PW2/A). ASI-Gambhir Chand gave his personal search to the accused. Nothing incriminating was found in his possession. Memo (Ext. PW6/B) was prepared. ASI-Gambhir Chand searched the accused and found one red carry bag (Ext. P2) tied to his stomach behind the belt. He checked the carry bag and found one polythene envelope (Ext. P3) containing black sticks (Ext. P4). ASI-Gambhir Chand checked the sticks and found them to be charas after smelling and burning them. He weighed the charas and found its weight to be 475 grams. He put the charas in the polythene envelope and put the polythene envelope in the red carry bag in the same manner in which it was recovered. He put the red carry bag in a cloth parcel and sealed the parcel with six impressions of seal ‘K’. He filled the NCB-I form (Ext. PW3/C) and put the seal impression on the form. He obtained the sample seal (Ext. PW6/C) on a separate piece of cloth and handed it over to Constable-Khub Ram after the use. He seized the parcel vide seizure memo (Ext. PW2/B). He prepared rukka (Ext. PW3/A) and handed it over to Constable Sangat Ram (PW5) with directions to take it to the police station. Constable-Sangat Ram handed over the rukka to SI/SHO Sher Singh (PW3), who got the FIR (Ext. PW3/B) registered in the police station and handed over the case

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file to Constable-Sangat Ram with a direction to carry it to the spot. SI-Gambhir Chand conducted the investigation. He prepared the site plan (Ext. PW6/D). He took the photographs (Ext. PW6/A1 to Ext. PW6/A5) of the proceedings. He also videorecorded the proceedings and transferred them to CD (Ext. PW6/A6). He arrested the accused vide memo (Ext. PW6/E). He recorded the statements of the witnesses as per their version. He produced the accused and the case property before Inspector Sher Singh (PW3), who re-sealed the parcel with three impressions of seal ‘T’ and filled the relevant columns of the NCB-I form. He put the seal impression ‘T’ on the NCB-I form and obtained the seal impression ‘T’ on a separate piece of cloth (Ext. PW3/D). He handed over the case property, relevant documents and sample seals to HC-Ram Kishan (PW4) at 11:55 pm. HC-Ram Kishan made an entry in the register of malkhana at serial No.107 (Ext. PW4/A) and deposited the case property in malkhana. He handed over the case property, documents and sample seals to Constable Sangat Ram on 22.06.2012 with a direction to take them to FSL Junga vide RC No.145/12 (Ext. PW4/B). Constable Sangat Ram deposited all the articles at FSL Junga and handed over the receipt to MHC Ram Kishan on

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his return. ASI-Gambhir Chand prepared the special report (Ext. PW1/A) and handed it over to Additional Superintendent of Police Sandeep Dhawal on 23.06.2012. Additional Superintendent of Police Sandeep Dhawal made the endorsement on the special report and handed it over to his Reader HC-Balbir Singh (PW1), who made an entry at Serial No.55 (Ext. PW1/B) and retained the special report on record. The result of the analysis (Ext. PW3/F) was issued in which it was shown that the exhibit was an extract of cannabis and a sample of charas, which contained 8.89% w/w resin in it. The statements of the remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the Court.

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The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act, to which the accused pleaded not guilty and claimed to be tried.

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The prosecution examined six witnesses to prove its case. HC-Balbir Singh (PW1) was working as a Reader to the Additional Superintendent of Police to whom the special report was handed over. Constable-Khub Ram (PW2) and Constable

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Sangat Ram (PW5) are the official witnesses to recovery. Inspector-Sher Singh (PW3) was working as SHO, who re-sealed the parcel and signed the FIR. HC-Ram Kishan (PW4) was working as MHC, with whom the case property was deposited. ASI-Gambhir Chand (PW6) effected the recovery and conducted the investigation.

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The accused, in his statement recorded under Section 313 Cr.P.C., denied the prosecution case in its entirety. He claimed that he was present in Sarvari Bazaar near the bus stand Kullu, from where he was arrested by the police. He was waiting for a bus. He initially stated that he wanted to lead defence evidence but did not lead any evidence subsequently.

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The learned Trial Court held that the prosecution version that no independent witness was available at the spot was not believable, as the recovery was effected on the National Highway where the traffic was moving. There were contradictions in the statements of official witnesses. The witnesses stated that the investigation was conducted with the help of a searchlight, but no explanation was given from where the searchlight was brought. The compliance with Section 50 of NDPS Act was not proved; therefore, the accused was acquitted.

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Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. Learned Trial Court failed to view the prosecution evidence in its proper perspective, and it had set unrealistic standards to evaluate the direct and cogent prosecution evidence. The statements of witnesses were discarded for untenable reasons. The independent witnesses could not have been associated, as it was a case of chance recovery. Minor contradictions in the statements of official witnesses were not sufficient to discard the prosecution case. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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We have heard Ms Seema Sharma, learned Deputy Advocate General for the appellant-State, and Mr Varun Chauhan and Mr Bhairav Gupta, learned counsel for the respondent/accused.

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Mr Seema Sharma, learned Deputy Advocate General for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. It was a case of chance recovery and it was not possible to associate independent witnesses.

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Section 50 of the NDPS Act also could not have been complied with, as the police had no previous information. The police became suspicious of the conduct of the accused when he started running away after seeing the police vehicle. The learned Trial Court erred in discarding the prosecution case based on minor contradictions alone. Hence, she prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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Mr Varun Chauhan, learned counsel for the respondent/accused, submitted that the police had not complied with the requirements of Section 50 of the NDPS Act. The accused consented to be searched by the police, which shows that the third option was given to the accused. This is simply impermissible. Learned Trial Court had taken a reasonable view, and this Court should not interfere with it while deciding an appeal against acquittal; hence, he prayed that the appeal be dismissed.

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We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:

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“25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened, and a higher threshold is expected to rebut the same in appeal.

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26. No doubt, an order of acquittal is open to appeal, and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially

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when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

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27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “ two-views theory ” has been judicially recognised by the courts, and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

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28. In Selvaraj v. State of Karnataka [ Selvaraj v. State of Karnataka , (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19] : (SCC pp. 236-37, para 13)

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“ 13 . Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down

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that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p. 643, para 9)

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‘ 9 . … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view, and even if by any stretch of the imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.’”

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29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522] , the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)

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“ 7 . It is well settled that:

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7.1 . While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586 ] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).

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7.2 . With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807] ).

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7.3 . If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320] ).”

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This position was reiterated in Ramesh v. State of Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it was observed at page 175:

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“20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , regarding the power of the appellate court while dealing with an appeal against a judgment of acquittal. The principles read thus: (SCC p. 432, para 42)

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“ 42 . … (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.

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(3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the

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nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly , the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly , the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308] , a threejudge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses, and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice.”

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The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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Neutral Citation No. ( 2024:HHC:13853-DB )

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It is undisputed that the recovery was effected from

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the carry bag kept beneath the belt on the stomach of the accused. This fact was specifically mentioned by Constable-Khub Ram (PW2), Constable-Sangat Ram (PW5) and ASI-Gambhir Chand (PW6). This fact was also mentioned in the seizure memo (Ext. PW2/B) and rukka (Ext. PW3/A). 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: -

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“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 it 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

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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.

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In the present case, the charas was recovered after

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removing the clothing adjacent to the stomach. Thus, the recovery was effected from the person of the accused. Section 50 of the ND&PS Act deals with the search of the person. It reads as

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under: -

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“ 50. Conditions under which search of persons shall be conducted.

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(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.

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(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).

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(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.

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(4) No female shall be searched by anyone except a female.

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(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)

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(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.”

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Thus, the police were to search the accused as per

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Section 50 of the NDPS Act and had to inform the accused of his right to be searched before the Magistrate or Gazetted Officer.

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The consent memo (Ext. PW2/A) reads that ASIGambhir Chand informed the accused in writing that police suspected the possession of some contraband by the accused and his personal search was to be conducted. He had a right to be searched before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police. No witness has clarified how the accused could have consented to be searched by the police when he was told of his right to be searched before the Magistrate or a Gazetted Officer. Any reasonable person provided with an option to be searched before a Magistrate or a Gazetted

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Officer will choose/refuse either and cannot choose an option to be searched by the police unless such an option was given to him. The fact that the accused opted to be searched by the police can only lead to an inference that an option to be searched before the police was also given to him, and that is why the accused had opted to be searched before the police. In the absence of any explanation from the official witnesses, this is the only inference which can be drawn in the circumstances of the case. It was laid down by the Hon’ble Supreme Court in State of Rajasthan Vs. Parmanand & another (2014) 5 SCC 345, that Section 50 of the NDPS Act 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:

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“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 searched before PW-5 J.S. Negi, the Superintendent, who

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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.”

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The law regarding the third option given to the

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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:

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“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.

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3(iii)(d). In the instant case, the consent memo (Ext.PW1/A), obtained from the accused, shows that in addition to the two statutory options of search before the Magistrate or the Gazetted Officer", a 3^rd 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 3^rd 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 and 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: -

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"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: -

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"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

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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).

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"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.

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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."

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Effect of giving the 3^rd 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:-

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"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

¶115

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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."

¶118

In a case titled State of H.P. versus Rakesh 2018 LHLJ 214 (HP) , this Court observed as under: -

¶119

"18. .......................................................................

¶120

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

¶121

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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.

¶124

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:

¶125

"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. ......"

¶126

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."

¶127

Therefore, the combined effect of the law laid down by the Hon'ble Apex Court, as applied to the facts of

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23 Neutral Citation No. ( 2024:HHC:13853-DB )

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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.”

¶130

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:

¶131

“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.”

¶132

A similar view was taken in Ranjan Kumar Chadha v.

¶133

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24 Neutral Citation No. ( 2024:HHC:13853-DB )

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State of H.P., 2023 SCC OnLine SC 1262: AIR 2023 SC 5164 wherein it was observed:

¶136

“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?

¶137

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…..

¶138

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.”

¶139

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 carry out the search himself. It was observed:

¶140

“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

¶141

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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 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.

¶144

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”.

¶145

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

¶146

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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.

¶149

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

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the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.

¶153

66. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:—

¶154

(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.

¶155

(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.

¶156

(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.

¶157

(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.

¶158

(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.

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(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.

¶162

(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.

¶163

(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.

¶164

(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.

¶165

(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.

¶166

In the present case, the memo (Ex.PW2/A) contains

¶167

the writing of the accused that he wanted to be searched by the police. This writing does not mention that the accused, after having been apprised of the right to be searched before the Magistrate or Gazetted Officer, had elected to waive the right. Hence, the submission that the police had not complied with the

¶168

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provisions of Section 50 of the NDPS Act has to be accepted as

¶171

correct.

¶172

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 NDPS Act is fatal, and the police cannot rely upon the recovery effected in violation of Section 50 of NDPS Act. It was observed: –

¶173

“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.”

¶174

This position was reiterated in Arif Khan @ Agha Khan

¶175

versus State of Uttarakhand AIR 2018 SC 2123 , wherein it was

¶176

observed: -

¶177

“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

¶178

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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.

¶181

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.

¶182

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.”

¶183

Thus, it appears from the record that the accused was

¶184

also told that he could be searched before the police, and only

¶185

then he opted to be searched by the police, which is insufficient compliance with Section 50 of the NDPS Act and the prosecution cannot rely upon the recoveries effected as a result of a search conducted in violation of Section 50 of NDPS Act.

¶186

The learned Trial Court also noticed the material contradictions in the statements of the witnesses. The

¶187

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prosecution case was that the police party was proceeding on in a vehicle, but Sangat Ram (PW5) deposed that police had laid a nakka. Sangat Ram (PW5) also stated that the police party started from the police station at 5:30 pm, whereas Gambhir Chand (PW6) stated that the police party left the police station Kullu at 6:30 pm. The departure report also mentions the same time. Sangat Ram (PW5) stated that no vehicle crossed the road, but Gambhir Chand (PW6) stated that traffic was moving on the road. The witnesses stated that the investigation was conducted with the help of a searchlight, but there was no explanation as to from where the searchlight was obtained by the police. These circumstances led the learned Trial Court to doubt the prosecution case. Ordinarily, these contradictions would not have been significant, but keeping in view the fact that police had not associated any independent person, these contradictions assume significance.

¶190

The police asserted that efforts were made to associate independent witnesses, and Constable-Khub Ram (PW2) was sent to bring the independent person, but no independent person was available. Khub Ram (PW2) and Gambhir Chand (PW6) admitted that the place of the incident

¶191

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was on a National Highway and there was vehicular traffic. This means that it was possible for the police to associate the independent witnesses on the spot itself by stopping the moving vehicles. Further, Constable-Khub Ram stated in his crossexamination that about 50-60 residential houses are situated in Village Talogi. He also admitted that 20-25 shops are situated at Talogi by the sides of the road, which makes his testimony highly doubtful that he could not find any independent witness. It was rightly contended by Ms Seema Sharma, learned Deputy Advocate General, that it was a case of chance recovery and the association of the independent person after the apprehension of the accused was futile; however, the police officials themselves tried to demonstrate that they attempted to associate independent witnesses but were not successful. This would affect their credibility adversely.

¶194

Thus, the learned Trial Court had taken a reasonable view, which could have been taken based on the material placed before it and no interference is required while deciding the appeal against acquittal.

¶195

In view of the above, the present appeal fails, and the same is dismissed.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023), the respondent is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the 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 respondent on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

¶199

A copy of this judgment along with the record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.

¶200

(Vivek Singh Thakur) Judge

¶201

( Rakesh Kainthla) Judge

¶202

10^th December, 2024 (saurav pathania)

State of Hp v. Raj Kumar Alias Raju

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State of Hp v. Raj Kumar Alias Raju

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