Appeal
Appeal by State against the acquittal of respondent by High Court by set aside the conviction of NDPS Trial court
1. The present criminal appeal arises out of a judgement and order dated 08.10.2015 passed by High Court of Himachal Pradesh vide Cr. Appeal No. 155 of 2015 wherein the judgment of conviction and sentence to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/-, rendered by the learned Special Judge-I, Shimla, H.P, in Sessions trial No. 21-S/7 of 2013, dated 31.12.2014 was set aside. The prosecution has failed to prove the case against the accused for the commission of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after ND & PS Act). Accused was acquitted of the charges framed against him.
Brief facts
Police arrested the accused on suspicion of carrying contraband plastic bag and tried to run away while seeing the police: 2. The factual matrix of the case is that on 13.3.2013, police party headed by SHO Daya Ram consisting of ASI Raj Kumar and others was present during Nakabandi at place Pandranu from 4:00 am to 6:00 am. The police party while coming back in vehicle No. HP-07A-0839 reached near Dhangu Dhank. The accused was found coming downward carrying red-gray coloured bag pack. On seeing the police party, the accused became perplexed and tried to run away. On suspicion, accused was apprehended by the police party. The consent was taken vide consent memo Ext. PW-1 /A. The police official has given the personal search vide memo Ext. PW-1/B. On search of the bag of accused, one plastic bag was found containing charas in the form of balls and sticks. The charas weighed 11 kg 50 grams.
Contraband was sealed and taken into possession-sample seal sent-FIR recorded and Final report submitted: 3. The charas Ext. P-4 was repacked in the same bag and sealed with three seals of “H” in parcel Ext. P-1 in the presence of witnesses and taken into possession vide memo Ext. PW-1/D. Sample of seal “H” was also taken on a piece of cloth vide Ext. PW1/C. Rukka Ext. PW-11/A was prepared on the basis of which FIR Ext. PW-7 /D was recorded. Investigating Officer sent the rukka and sealed parcel containing charas through Head Constable Babu Lal who deposited it in the malkhana and corresponding entry was taken in the register. The abstract of malkhana register is Ext. PW7 /A. The Investigating Officer prepared NCB form in triplicate vide Ext. PW-1/E. The case property was sent to FSL Junga vide RC No.4. On completion of the investigation, the chargesheet was submitted in the competent court.
Trial Court sentenced the accused/respondent: 4. The prosecution, in order to prove its case, has examined as many as 11 witnesses. The statement of accused under Section 313 of Criminal Procedure Code, 1973 (hereinafter ‘Cr.P.C.’) was recorded. The accused has denied the prosecution case. According to him, he was falsely implicated. The accused claimed trial. The learned Trial Court on appreciation of evidences on record, convicted and sentenced the accused, as noticed herein above.
High court allowed the appeal and acquitted the accused/respondent: 5. Being aggrieved by the judgment of Trial Court, the accused preferred an appeal before the High Court. The Hon’ble High Court of Himachal Pradesh after considering the material and on hearing the submissions advanced by the respective parties allowed the appeal by setting aside the judgment of Trial Court. The High Court observed that the accused was apprehended on 13.3.2013 while carrying a bag. However, despite that his personal search was carried out. The police had given option to the accused either to be personally searched before the Magistrate or the Gazetted Police Officer. The accused was also given option whether he wanted to be searched by the Investigating Officer in the presence of witnesses mentioned in Ext. PW-1/A. According to Section 50 of the ND & PS Act, the accused has to be apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer. There is no third option to be searched before the Police Officer. Thus, the consent obtained from the accused was not in conformity with Section 50 of the Act. The act of Investigating Officer providing the third option namely, the search of accused in presence of the Police officer was clearly contrary to the provisions of the Act and particularly contrary to the provisions of Section 50 of ND & PS Act. Considering this act, the High Court observed that when the provisions of the Act namely, Section 50 provides only two options i.e. apprising the provision of the Act, apprising the accused of his legal right available with two options namely, to be searched either before the Gazetted Officer or before the Magistrate and providing the third option by the officer concerned that the search before the police officer being contrary to the provisions of law vitiated the entire trial.
6. The Hon’ble High Court held that the prosecution has failed to prove the case against the accused for the commission of offence under Section 20 of the ND & PS Act. Accordingly, in view of the analysis and discussion made, the appeal was allowed. Judgment of conviction and sentence dated 31.12.2014, rendered by the learned Special Judge-I, Shimla, H.P., in Sessions trial No. 21-S/7 of 2013, was set aside. Accused is acquitted of the charges framed against him.
7. Aggrieved by the said judgement of the High Court, the appellant is before us.
Gist of submission of both parties
Submissions of the Appellant (State of Himachal Pradesh)
The Appellant contended that the Trial Court’s initial conviction was based on a sound appreciation of evidence and should not have been overturned. They argued that Section 50 of the NDPS Act was not applicable because the charas was recovered from a bag the accused was carrying, rather than from his physical person. The State further asserted that the recovery was a “chance recovery” made during routine patrolling without prior information, and that the accused failed to provide evidence of his innocence during his examination under Section 313 Cr.P.C.. Additionally, they justified the lack of independent witnesses by citing the isolated nature of the location and the early morning hour of the incident.
Submissions of the Respondent (Surat Singh)
The Respondent argued that the trial was vitiated because the police performed a personal search without following the mandatory procedures of Section 50. Specifically, they claimed the Investigating Officer acted illegally by offering a “third option” to be searched by the police, whereas the law only permits searches before a Magistrate or a Gazetted Officer. Regarding the reverse burden of proof under Section 54, the Respondent maintained that such a presumption can only be raised once a valid, doubt-free recovery is established. Finally, they pointed to major contradictions in the prosecution’s story, noting that witness PW-8 denied providing an electronic scale and stated his shop only possessed traditional scales, which rendered the prosecution’s version of the weighing process untrustworthy.
Analysis
High Court committed no error
16. After hearing the ld. counsels appearing for the respective parties and on going through the material placed before us, we are of the opinion that the High Court committed no error in appreciating the submissions and also assessing the evidence brought before the Trial Court in its proper perspective.
18. The oral testimony of the witnesses clearly established that the Investigating Officer took a departure from the provisions of law and on the contrary committed an act which is clearly contrary to the provisions of law. It may not be out of place to state at the cost of repetition that the testimony of PW-8 reveals that there was no electronic weighing scale available in the shop and he was using only the traditional weighing scale as such the story of prosecution that an electronic weighing scale was used for weighing the contraband article charas falls flat on the face of it and the version of the prosecution and the story of the prosecution becomes doubtful and ultimately unacceptable. The High Court was also justified in placing reliance on the judgment of this Court in State of Rajasthan versus Parmanand and Anr., in support of the conclusions drawn by it.
Resources
Judgments Cited
- Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609
- A Constitution Bench ruling establishing that strict compliance with Section 50 of the NDPS Act is mandatory. The Court held that failure to properly apprise an accused of their right to be searched specifically before a Magistrate or Gazetted Officer vitiates a conviction.
- State of Rajasthan v. Parmanand and Another, (2014) 5 SCC 345
- Clarified that while a search of only a bag does not trigger Section 50, the provision is fully applicable if both the bag and the person’s body are searched.
- Suresh and Others v. State of Madhya Pradesh, (2013) 1 SCC 550
- Held that merely asking an accused for “consent” to be searched by the police does not satisfy the legal requirement to inform them of their right to be searched by a Magistrate or Gazetted Officer.
- Sanjeet Kumar Singh alias Munna Kumar Singh v. State of Chhattisgarh, (2022) 16 SCC 58
- Affirmed that the presumption of guilt under Section 54 of the NDPS Act cannot be raised if there is a fundamental doubt regarding the validity of the search and seizure.
- State of Rajasthan v. Kistoora Ram, (2023) 18 SCC 87
- Emphasized that appellate courts have limited scope to interfere with an acquittal unless the lower court’s view is proven to be “impossible or perverse”.
Additional Authorities Referenced
- Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513.
- State of Punjab v. Makhan Singh, (2004) 3 SCC 453.
Acts and Sections
Narcotic Drugs and Psychotropic Substances Act, 1985
- Section 20: Relates to the punishment for contravention in relation to the cannabis plant and cannabis (charas).
- Section 50: Conditions under which search of persons shall be conducted. The Court emphasized that an accused must be apprised of their legal right to be searched before a Magistrate or a Gazetted Officer. Providing a “third option” (search by a police officer) is a violation of this section.
- Section 54: Presumption from possession of illicit articles. It creates a reverse burden of proof on the accused to explain the possession of contraband once a valid recovery is established.
Code of Criminal Procedure, 1973 (Cr.P.C.)
- Section 313: Power to examine the accused. This section was used to record the statement of the accused, during which he denied the prosecution’s case and claimed false implication.
Party
The State of Himachal Pradesh versus Surat Singh - Criminal Appeal No. 96 of 2018 - 2026 INSC 240 - March 16, 2026 – Hon’ble Mr. Justice Pankaj Mithal and Hon’ble Mr. Justice Prasanna B. Varale.
