Dismissed¶64

State of Hp v. Hem Raj

Himachal Pradesh HC5 May 2025CR.A/283/2015

Case brief

AI extract

What is this about?

High Court of Himachal Pradesh, Shimla (Division Bench: Justices Tarlok Singh Chauhan and Sushil Kukreja), Cr. A. No. 283/2015, decided 05.05.2025: dismissed the State's appeal against acquittal of Hem Raj under Section 20 NDPS Act; recovery of 900 grams of charas held vitiated owing to total violation of mandatory Section 50; non-joining of independent witness held not to vitiate the trial; Arif Khan (2018) 18 SCC 380 and Ranjan Kumar Chadha (AIR 2023 SC 5164) applied.

What did the court decide?

None; the acquittal of the respondent was upheld and the appeal, along with pending application(s), if any, was dismissed. ¶64

State of Hp Vs Hem Raj — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

None; the acquittal of the respondent was upheld and the appeal, along with pending application(s), if any, was dismissed.

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Issue for consideration

Whether the State's appeal against acquittal should be allowed, the learned trial court having acquitted the respondent on two grounds: (i) non-joining of independent witness and (ii) non-compliance of Section 50 of the Act. +1 more

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Court's answer

Mere non-association of an independent witness does not vitiate the trial per se; it is not mandatory to associate an independent witness.

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Ratio / Principle

Non-compliance of Section 50 of the Act is fatal to the case of the prosecution, as rightly held by the learned trial court.

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Key takeaways

Since there is total violation of the mandatory provisions of Section 50 of the Act in the case at hand, the recovery of the alleged contraband stands vitiated.ratio¶58
The view taken by the learned trial court while acquitting the respondent is reasonable, based on the evidence, and cannot be said to be either perverse or contrary to the material available on record.ratio¶59

Detailed headnote1 paragraphs

Criminal appeal against acquittal (State of H.P. v. Hem Raj) — 900 grams of cannabis (charas) recovered from inside the shirt and underpants worn by the respondent — learned trial court acquitted on two grounds: (i) non-joining of independent witness and (ii) non-compliance of Section 50 of the NDPS Act — mere non-association of an independent witness does not vitiate the trial per se and is not mandatory — compliance with Section 50 (obligation to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate) is mandatory and its non-compliance is fatal to the prosecution case — total violation of Section 50 in the case at hand vitiated the recovery of the alleged contraband — acquittal held reasonable, based on evidence, and neither perverse nor contrary to the record — principles drawn from Arif Khan @ Agha Khan v. State of Uttarakhand, (2018) 18 SCC 380 and Ranjan Kumar Chadha v. State of H.P., AIR 2023 SC 5164 — appeal dismissed along with pending application(s), if any.

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( 2025:HHC:12645-DB )

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr. A. No.283/2015 Reserved on: 01.05.2025 Decided on : 05.05.2025

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State of Himachal Pradesh …..Appellant Versus Hem Raj ….Respondent

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Coram:

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting?¹ No

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For the Appellant: Mr. I.N.Mehta, Mr. Yashwardhan Chauhan, Sr. Addl. A.Gs. with Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Kaprate, Addl. A.Gs. and Mr. Raj Negi, Dy.A.G. . For the Respondent: Mr. G.R.Palsra, Advocate. ____________________________________________________________

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Justice Tarlok Singh Chauhan, Judge

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Aggrieved by the acquittal of the respondent for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in

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1Whether reporters of the local papers may be allowed to see the judgment? Yes.

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( 2025:HHC:12645-DB )

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short, “the Act”), the appellant-State has filed the instant appeal.

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2 It is not in dispute and is rather specific case of the prosecution that 900 grams of cannabis was recovered inside the shirt and underpants worn by the respondent.

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3 It shall be apt to reproduce the relevant portion of the statement of Investigating Officer, which reads as under:-

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“ The vehicle passing from the place were also stopped and the persons occupying the vehicle were asked to become witnesses, but they also refused. Therefore, the police officials ASI Mohan Lal second and H.C. Dharam Dass were associated as witnesses and accused on asking told his name and address. We have our search to the accused about which memo Ex.PW7/A was prepared. Thereafter, personal search of the accused was conducted and it was found that accused was carrying two packets wrapped with brown tape on his stomach inside the shirt under pant. On checking inside the packet black material in the shape of Chapati and some of it were also wrapped in plastic on experience it was found charas. On weighing charas recovered was found 900 grams.

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4 The learned trial court acquitted the respondent on two grounds:-

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(i) Non-joining of independent witness; and

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(ii) Non-compliance of Section 50 of the Act.

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5 It is more than settled that mere non-association of

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the independent witness would not vitiate the trial per se as it is not mandatory to associate an independent witness, but as regards non-compliance of Section 50 of the Act, the same is fatal to the case of the prosecution as rightly held by the learned trial court.

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6 In the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand (2018) 18 SCC (380 ), Hon'ble Supreme Court

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has held that it is mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. Further that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. Para Nos.18 to 20 of the aforesaid judgment read as follows:

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"18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra).

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19. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

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20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the

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suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392)."

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7 In a recent judgment Ranjan Kumar Chadha vs.

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State of Himachal Pradesh, AIR 2023 Supreme Court

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5164 , the Hon'ble Supreme Court has extensively addressed the scope and object of Section 50 of the Act and laid down the guidelines by holding that search, seizure and recovery of contraband not made in the presence of any Magistrate or Gazetted Officer and non-compliance with the mandatory procedure under Section 50 of NDPS Act,1985 is fatal to the prosecution case. It has been held as under :

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“33. Ordinarily, it could be said or argued that “to search any person” would mean, to search the articles on the person or body of the person to be searched and would normally not include the articles which are not on the body of the person to be searched. When we are deliberating on the scope and true purport of Section 50 of the NDPS Act, we should bear in mind that the main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized officer. … … … … … …

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36. Considering the aforesaid provisions, the inference which can be drawn is that “to search any person” would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of the NDPS Act. In contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50. However, when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed. This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. The concealment which is suspected is on the person or about his person.

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

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(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.

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(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.

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(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.

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(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.

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(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50.

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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.

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(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

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conducted under any other statute in respect of any offence.

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(viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted.

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(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.”

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8 By applying the aforesaid principles in the case at

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hand, since there is total violation of mandatory provisions of Section 50 of the Act, the recovery of the alleged contraband stands vitiated. Therefore, we are of the considered view that

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the view taken by the learned trial court while acquitting the respondent is reasonable based on the evidence and the same

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cannot be said to be either perverse or contrary to the material available on record.

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9 In view of the aforesaid discussions and for the

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reasons stated above, we find no merit in the instant appeal and the same is accordingly dismissed so also the pending application(s), if any.

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