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IN THE HIGH COURT OF HIMACHAL PRADESH AT

SHIMLA

Cr. Appeal No. 167 of 2012

Reserved on: 15.12.2025

Decided on : 5.1.2026

Kalu Ram @ Chandey Ram

… Appellant

Versus

State of H.P.

…Respondent

_____________________________ ______________

Coram

Hon’ble Mr. Justice Virender Singh, Judge

Whether approved for reporting? yes

___________________________________________________

For the Appellant : Mr. Lakshay Thakur, Advocate.

For the Respondents : Mr. Tejasvi Sharma and Mr. H.S.

Rawat, Addl. AGs with Mr. Rohit

Sharma, Dy.A.G.

Virender Singh, Judge

Appellant Kalu Ram @ Chandey Ram has

preferred the present appeal, under Section 374 of the

Code of Criminal Procedure (hereinafter referred to as

‘the Cr. P.C.’), read with Section 36-B of the Narcotic

Drugs & Psychotropic Substances Act (hereinafter

referred to as ‘the NDPS Act’) against the judgment of

conviction and order of sentence dated 3.5.2012,

passed by the Court of learned Special Judge (II), Mandi,

H.P., (hereinafter referred to as ‘the Trial Court’), in

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Sessions Trial No. 50 of 2010, titled as, ‘State versus

Kalu Ram @ Chandey Ram’.

2. Vide judgment of conviction and order of

sentence, as referred to above, the appellant was

convicted for the offence, punishable under Section 20(b)

(ii)(B) of the NDPS Act and he has been sentenced to

undergo rigorous imprisonment, for a period of one year

and to pay a fine of Rs. 10,000/-. In default, he has been

sentenced further to undergo simple imprisonment, for a

period of three months.

3 For the sake of convenience, appellant herein is

referred to, in the same manner, in which, he was

referred to, by the learned trial Court.

4. Brief facts leading to filing the present petition,

as borne out from the record of the case, may be

summed up, as under:

Police of Police Station Sadar Mandi has filed the

charge sheet, before the learned Special Judge, Mandi,

arising out of case FIR No. 119 of 2010, dated

20.4.2010, under Section 20 of the NDPS Act, on the

ground that on 20.4.2010, ASI Ram Lal alongwith LHC

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Narpat Ram No. 460 and other police officials, was on

patrolling duty and was present at a place known as

‘Sukki-Bai’ on National Highway-21. At about 5:30 p.m.,

they noticed a private bus, bearing registration No. HP-

65-2244, being driven by its driver, coming from Kullu-

Pandoh towards Mandi, which was stopped for checking

by the I.O. Thereafter, the I.O., alongwith police officials,

entered the bus and started checking the same. The

person, who was sitting on seat No. 22, on seeing the

Police had started doing weird activities, upon which,

the I.O. developed a suspicion in his mind that he might

be having some stolen articles or illegal articles, in his

possession. Thereafter, the said person was taken down

from the bus. The bus driver, conductor and other

passengers were requested to be the witnesses, but no

one was ready to be the witness.

4.1 Thereafter, the I.O. made efforts to

associate the drivers of the vehicles, crossing from there,

but no one was ready to be the witness, upon which,

LHC Narpat Ram and Const. Ram Lal were associated as

independent witnesses and the name and address of the

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person, sitting on seat No. 22, was inquired. The said

person disclosed his name as Kalu Ram, S/o Nehru

Ram, R/o Village Kasadha, Tehsil and District Kullu.

4.2 Thereafter, I.O., as well as, the police

officials had given their personal search to the accused,

but nothing incriminating was found from their

possession. This fact was documented by the I.O.

Thereafter, search of Kalu Ram was conducted. During

search, it was found that Kalu Ram, with the help of a

tape has concealed something wrapped with brown

plastic tape, on his calf muscles. When, the said plastic

tape was removed, it was found containing two black

coloured packets. On tearing the same, the stick shaped

substance was found, which, on the basis of experience

was found to be cannabis.

4.3 On weighment, the Charas was found to be 450

grams. The cannabis was thereafter, taken into

possession and other codal formalities were completed.

After registration of the FIR, the accused was arrested.

After completion of investigation, police filed the charge-

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sheet, under Section 20 of the NDPS Act, against the

accused.

5. From the report under Section 173(2) of the Cr.

P.C., the learned trial Court, after complying with the

provisions of Section 207 Cr. P.C., found a prima-facie

case, against the accused, for the commission of

offence, punishable under Section 20 of the NDPS Act.

As such, the learned trial Court framed the charge

against the accused. The accused has pleaded not

guilty and claimed to be tried. Consequently, the

prosecution was directed to adduce evidence, in order to

substantiate the charge, framed against the accused.

Consequently, the prosecution has examined, as many

as, 9 witnesses, in this case.

6. After closure of evidence of the prosecution, the

entire incriminating evidence was put to the accused, in

his statement, recorded under Section 313 Cr. P.C.

Accused has denied the entire case of the prosecution

and taken the defence that he is innocent. However, he

has not led any evidence in defence.

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7. The learned trial Court, after hearing learned

APP, as well as, learned counsel for the accused,

convicted the accused, for the commission of offence,

punishable under Section 20 of the NDPS Act, vide the

aforesaid judgment.

8. Against the said judgment of conviction, present

appeal has been preferred, on the ground that the

learned trial Court has not considered the fact that

there is complete non-compliance of Section 50 of the

NDPS Act, as the I.O., before conducting the personal

search of the accused has not given option to the

accused to be searched before the Magistrate or

Gazetted Officer, as mandated by Section 50 of the

NDPS Act.

9. Apart from this, violation of Section 55 of the

NDPS Act has also been highlighted. It has also been

pleaded that link evidence is not there, in the present

case.

10. On the basis of above facts, Mr. Lakshay

Thakur, Advocate, appearing for the appellant has

prayed that the appeal may kindly be allowed.

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11. Per contra, Mr. Tejasvi Sharma, learned Addl.

A.G. appearing for the respondent-State has supported

the judgment of conviction and order of sentence,

passed by the learned trial Court and submitted that the

learned trial Court has rightly appreciated the evidence

of the prosecution and rightly convicted the accused.

12. In this case, judgment of conviction and order of

sentence have been assailed, mainly on the ground of

non-compliance of Section 50 of the NDPS Act. As such,

evidence of only those witnesses is to be discussed, who

were present on the spot.

13. PW-9 is the I.O. According to him, on 20.4.2010,

he, alongwith LHC Narpat, C. Ram Lal, C. Roshan Lal

and C. Krishan Kumar was present at Sukki Bai, where

they had gone for patrolling duty in their private vehicle

number HP-33B-3100. At that place, they noticed a bus,

bearing registration No. HP-65-2244, coming from Kullu

side. The I.O signalled to stop the same. Driver of the

bus stopped the same. Thereafter, the bus was checked.

The accused, who was sitting on seat No. 22, got

perplexed on seeing the police party. On noticing the

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Police, he got frightened and his face became pale. Due

to this, the I.O. developed suspicion in his mind that he

might be having some stolen articles or some illegal

articles, in his possession.

13.1Thereafter, the accused was taken out from the

bus. Efforts were made to associate the bus driver,

conductor and other passengers to be the witnesses, but

all of them refused to be the witness. Consequently, LHC

Narpat Ram and C. Ram Lal were associated as

witnesses.

13.2On inquiry, the accused has disclosed his name

as Kalu Ram, S/o Mehru Ram. Thereafter, the I.O., as

well as, other police officials had given their personal

search to the accused, but nothing incriminating was

found in their possession. This fact was documented

vide memo, Ext. PW4/A. Thereafter, search of accused

was conducted. From his personal search, something

was found tied on his calf muscles with the brown

coloured tape. When, the tape was removed, it was

found containing two black coloured envelopes, which,

on opening were found containing black coloured stick

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shaped substance. On opening the same, it was found to

be charas, which, on weighment, was found to be 450

grams.

13.3The contraband, so recovered, was put in a

parcel of cloth and the same was sealed with 9 seal

impressions. One such impression is Ext. PW4/B.

Thereafter, the I.O. filled NCB I form, Ext. PW7/C, in

triplicate. The cannabis was seized, vide seizure memo

Ext. PW4/C, which was signed by Narpat and C. Ram

Lal. Copy of Seizure Memo was given to the accused.

The accused was also found to be in possession of one

ticket, which was seized, vide memo Ext. PW4/D.

13.4Thereafter, Ruqua Ext. PW9/A was prepared,

which was sent to Police Station, through C. Roshan

Lal. The I.O. has prepared the site plan, Ext. PW9/B.

The accused was thereafter arrested, vide memo Ext.

PW4/E. Apart from this, he has deposed about the

manner, in which, remaining investigation was

conducted.

13.5In the cross-examination, this witness has

admitted that number of vehicles were parked near the

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water source. He has admitted that there is a hut of

hermit near the place of occurrence. He has further

admitted that at the place of occurrence, a number of

persons were there. He has feigned his ignorance as to

whether all the police officials entered the bus or not.

This witness has conducted the search of the

passengers himself. However, he could not tell about the

number of persons, who were checked by him, prior to

the search of the accused.

13.6This witness also could not disclose as to who

were occupying the seats No. 21 and 23, nor their

names and addresses were noted. No action was taken

against the passengers, who refused to be the witnesses.

The I.O. took about 10 minutes to conduct the search

of passengers prior to occupant of seat No. 22. No one

was deputed to bring the independent witnesses, as

according to this witness, there were no houses in the

vicinity. No efforts were made to produce the accused

before the Magistrate or Gazetted Officer. According to

this witness, it took 45 minutes to prepare the

documents prior to NCB-1 form.

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14. PW-4 is LHC Narpat Ram. He has also deposed

on the similar lines. His evidence is totally silent about

the fact whether any efforts were made by the I.O. to

comply with the provisions of Section 50 of the NDPS

Act.

15. PW-5 is C. Roshan Lal. He has also deposed on

the similar lines.

16. Admittedly, in this case, the I.O. has not

complied with Section 50 of the NDPS Act, as recovery of

alleged contraband was made from personal search of

the accused. According to the prosecution witnesses, the

contraband was tied with calf muscles of the accused,

by putting the contraband, in plastic envelopes. Those

envelopes were tied with calf muscles with brown

coloured plastic tape. Prior to the search, this witness

has allegedly given his personal search, as well as,

search of other police officials, vide memo Ext. PW4/A.

17. A bare perusal of memo Ext. PW4/A shows that

the I.O. has mentioned the following particulars in

heading of the document:

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“Case FIR No. 119/2010, dated 20.4.2010, u/s 20-61-85

NDPS Act P.S. Sadar, District Mandi, H.P.”

Although, FIR No. 119 has been mentioned in

red ink, but, learned Additional Advocate General could

not satisfy the judicial conscience of this Court as to

how the I.O. anticipated about the recovery of charas,

from the alleged possession of the accused. Admittedly,

he was not having any prior information and according

to the I.O., it is a case of chance recovery. When, the

I.O., prior to the search of the accused, has mentioned

Section 20 of the NDPS Act, it creates doubt not only in

the prosecution story, but, about the casual approach,

adopted by the I.O. to conduct the investigation of the

case, in which, stringent punishment has been provided

by law.

18. Hon’ble Supreme Court in a case titled as ‘Noor

Aga versus State of Punjab & Anr.’, reported in (2008)

16 Supreme Court Cases 417, has held that higher

decree of assurance would be necessary to convict an

accused, in such type of cases. Paras 56 and 57 of the

judgment are reproduced as under:

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“56. The provisions of the Act and the punishment

prescribed therein being indisputably stringent flowing

from elements such as a heightened standard for bail,

absence of any provision for remissions, specific

provisions for grant of minimum sentence, enabling

provisions granting power to the Court to impose fine of

more than maximum punishment of Rs.2,00,000/- as

also the presumption of guilt emerging from possession

of Narcotic Drugs and Psychotropic substances, the

extent of burden to prove the foundational facts on the

prosecution, i.e., `proof beyond all reasonable doubt'

would be more onerous. A heightened scrutiny test would

be necessary to be invoked. It is so because whereas, on

the one hand, the court must strive towards giving effect

to the parliamentary object and intent in the light of the

international conventions, but, on the other, it is also

necessary to uphold the individual human rights and

dignity as provided for under the UN Declaration of

Human Rights by insisting upon scrupulous compliance

of the provisions of the Act for the purpose of upholding

the democratic values. It is necessary for giving effect to

the concept of `wider civilization'. The courts must always

remind itself that it is a well settled principle of criminal

jurisprudence that more serious the offence, the stricter

is the degree of proof. A higher degree of assurance, thus,

would be necessary to convict an accused. In State of

Punjab v.

Baldev Singh, (1999) 3 SCC 977, it was stated:

"It must be borne in mind that severer the punishment,

greater has to be the care taken to see that all the

safeguards provided in a statute are scrupulously

followed."

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[See also Ritesh Chakravarty v. State of Madhya Pradesh,

JT 2006 (12) SC 416]

57. It is also necessary to bear in mind that superficially

a case may have an ugly look and thereby, prima facie,

shaking the conscience of any court but it is well settled

that suspicion, however high may be, can under no

circumstances, be held to be a substitute for legal

evidence.”

19. If the facts and circumstances of the present

case are seen in the light of above decision of Hon’ble

Supreme Court, the act of the I.O. to prepare the memo

regarding search of the I.O., as well as, police officials,

by mentioning Section 20 of the NDPS Act, takes away,

the proceedings, which were conducted by the I.O.,

allegedly on the spot, out of the purview of the

proceedings, which were purportedly conducted, on the

spot. These documents cannot be said to be prepared,

on the spot, as per the deposition, made by the I.O. Not

only in this document, but in the memo, by virtue of

which, the alleged contraband was recovered, Ext.

PW4/C, the FIR number in red ink, as well as, Section

20 of the NDPS Act, have also been mentioned.

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20. According to the I.O., ruqua was prepared by

him, after handing over NCB form to HC Anil. Meaning

thereby, the FIR was registered thereafter. In NCB-1

form, Ext. PW7/C, column Nos. 1 to 8, were supposed to

be filled in by the I.O., on the spot, but he has also

mentioned the FIR in this document. Not only this, the

FIR was be registered later on. The I.O. has not deposed

anywhere about the fact that after receipt of the file from

the Police Station, he has mentioned the FIR number in

the document, which was prepared, allegedly by him, on

the spot. How the I.O. came to know about the FIR

number, prior to its registration, which was registered

after the receipt of the ruqua in the Police Station.

21. At the cost of repetition, the document Ext.

PW4/A, which contains the number of the FIR, which

was later on, registered makes the entire case doubtful.

22. As highlighted above, even in the specimen of

seal impression ‘R’, the I.O. has not only mentioned the

FIR, but also the Section, under which, the same was

registered, and the said document seems to be prepared

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in one go, as the words “FIR 20 of 2019” have been

mentioned in blue ink, in one go.

23. Learned counsel appearing for the accused has

assailed the judgment of conviction, mainly on the

ground of non-compliance of Section 50 of the NDPS

Act. The Hon’ble Supreme Court in a case titled as,

Ranjan Kumar Chadha versus State of Himachal

Pradesh, 2023 INSC 878, has elaborately discussed the

provisions of Section 50 of the NDPS Act and after

discussing the entire law, on this point, has concluded

that obligation under Section 50 of the NDPS Act is

mandatory and failure to comply with the same would

render the recovery of the illicit article suspicious and

vitiate the conviction. Relevant paragraphs 45 to 56, 63

and 64 of the judgment are reproduced as under:

“45. This Court in Baldev Singh (supra) further observed

that the conditions prescribed in Section 50 are an

obligation imposed upon the empowered officer and the

same must be duly complied with before conducting any

search of a person. The relevant observations are

reproduced hereunder:-

“24. … There is, thus, unanimity of judicial

pronouncements to the effect that it is an obligation

of the empowered officer and his duty before

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conducting the search of the person of a suspect,

on the basis of prior information, to inform the

suspect that he has a right to require his search

being conducted in the presence of a gazetted

officer or a Magistrate and that the failure to inform

the suspect of his right, would render the search

illegal because the suspect would not be able to

avail of the protection which is inbuilt in Section

50. Similarly, if the person concerned requires, on

being so informed by the empowered officer or

otherwise, that his search be conducted in the

presence of a gazetted officer or a Magistrate, the

empowered officer is obliged to do so and failure on

his part to do so would also render the search

illegal and the conviction and sentence of the

accused bad.” (Emphasis supplied)

46. This Court in Baldev Singh (supra) also explained the

purpose behind the safeguards engraved under Section

50 and the reason as to why the right of the suspect to

have his search conducted before a Gazetted Officer or

Magistrate ought to be zealously guarded by the courts.

It was held as under:-

“25. To be searched before a gazetted officer or a

Magistrate, if the suspect so requires, is an

extremely valuable right which the legislature has

given to the person concerned having regard to the

grave consequences that may entail the possession

of illicit articles under the NDPS Act. It appears to

have been incorporated in the Act keeping in view

the severity of the punishment. The rationale

behind the provision is even otherwise manifest.

The search before a gazetted officer or a Magistrate

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would impart much more authenticity

and creditworthiness to the search and seizure

proceeding. It would also verily strengthen the

prosecution case. There is, thus, no justification for

the empowered officer, who goes to search the

person, on prior information, to effect the search, of

not informing the person concerned of the existence

of his right to have his search conducted before a

gazetted officer or a Magistrate, so as to enable him

to avail of that right. It is, however, not necessary

to give the information to the person to be searched

about his right in writing. It is sufficient if such

information is communicated to the person

concerned orally and as far as possible in the

presence of some independent and respectable

persons witnessing the arrest and search. The

prosecution must, however, at the trial, establish

that the empowered officer had conveyed the

information to the person concerned of his right of

being searched in the presence of a Magistrate or a

gazetted officer, at the time of the intended search.

Courts have to be satisfied at the trial of the case

about due compliance with the requirements

provided in Section 50. No presumption

under Section 54 of the Act can be raised against

an accused, unless the prosecution establishes it to

the satisfaction of the court, that the requirements

of Section 50 were duly complied with.

26. The safeguard or protection to be searched in

the presence of a gazetted officer or a Magistrate

has been incorporated in Section 50 to ensure that

persons are only searched with a good cause and

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also with a view to maintain the veracity of evidence

derived from such search. We have already noticed

that severe punishments have been provided under

the Act for mere possession of illicit drugs and

narcotic substances. Personal search, more

particularly for offences under the NDPS Act, are

critical means of obtaining evidence of possession

and it is, therefore, necessary that the safeguards

provided in Section 50 of the Act are observed

scrupulously. The duty to inform the suspect of his

right to be searched in the presence of a gazetted

officer or a Magistrate is a necessary sequence for

enabling the person concerned to exercise that

right under Section 50 because after Maneka

Gandhi v. Union of India it is no longer permissible

to contend that the right to personal liberty can be

curtailed even temporarily, by a procedure which is

not “reasonable, fair and just” and when a statute

itself provides for a “just” procedure, it must be

honoured. Conducting a search under Section 50,

without intimating to the suspect that he has a

right to be searched before a gazetted officer or a

Magistrate, would be violative of the “reasonable,

fair and just procedure” and the safeguard

contained in Section 50 would be rendered illusory,

otiose and meaningless. Procedure based on

systematic and unconscionable violation of law by

the officials responsible for the enforcement of law,

cannot be considered to be a “fair”, just or

reasonable procedure. We are not persuaded to

agree that reading into Section 50, the existence of

a duty on the part of the empowered officer, to

intimate to the suspect, about the existence of his

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right to be searched in the presence of a gazetted

officer or a Magistrate, if he so requires, would

place any premium on ignorance of the law. The

argument loses sight of a clear distinction between

ignorance of the law and ignorance of the right to a

“reasonable, fair and just procedure”.

x x x x

28. This Court cannot overlook the context in

which the NDPS Act operates and particularly the

factor of widespread illiteracy among persons

subject to investigation for drug offences. It must

be borne in mind that severer the punishment,

greater has to be the care taken to see that all the

safeguards provided in a statute are scrupulously

followed. We are not able to find any reason as to

why the empowered officer should shirk from

affording a real opportunity to the suspect, by

intimating to him that he has a right “that if he

requires” to be searched in the presence of a

gazetted officer or a Magistrate, he shall be

searched only in that manner. As already observed

the compliance with the procedural safeguards

contained in Section 50 are intended to serve a

dual purpose — to protect a person against false

accusation and frivolous charges as also to lend

creditability to the search and seizure conducted by

the empowered officer. The argument that keeping

in view the growing drug menace, an insistence on

compliance with all the safeguards contained

in Section 50 may result in more acquittals does

not appeal to us. If the empowered officer fails to

comply with the requirements of Section 50 and an

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order or acquittal is recorded on that ground, the

prosecution must thank itself for its lapses. Indeed

in every case the end result is important but the

means to achieve it must remain above board. The

remedy cannot be worse than the disease itself. The

legitimacy of the judicial process may come under a

cloud if the court is seen to condone acts of

lawlessness conducted by the investigating agency

during search operations and may also undermine

respect for the law and may have the effect of

unconscionably compromising the administration

of justice. That cannot be permitted.”

47. As to what would be the consequences of a recovery

made in violation of Section 50, it was observed

in Baldev Singh (supra) that it would have the effect of

rendering such incriminating material inadmissible in

evidence and hence, cannot be relied upon to hold the

accused guilty for being found to be in unlawful

possession of any contraband. The Court further

held that it would not impede the prosecution from

relying upon recovery of any other incriminating article

in any other independent proceedings. It was further

held that the burden of proving that the conditions

of Section 50 were complied with, would lie upon the

prosecution to establish. The relevant observations are

being reproduced hereunder:-

“32. However, the question whether the provisions

of Section 50 are mandatory or directory and, if

mandatory, to what extent and the consequences of

non-compliance with it does not strictly speaking

arise in the context in which the protection has

been incorporated in Section 50 for the benefit of

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the person intended to be searched. Therefore,

without expressing any opinion as to whether the

provisions of Section 50 are mandatory or not, but

bearing in mind the purpose for which the

safeguard has been made, we hold that the

provisions of Section 50 of the Act implicitly make

it imperative and obligatory and cast a duty of the

investigating officer (empowered officer) to ensure

that search of the person (suspect) concerned is

conducted in the manner prescribed by Section 50,

by intimating to the person concerned about the

existence of his right, that if he so requires, he

shall be searched before a gazetted officer or a

Magistrate and in case he so opts, failure to

conduct his search before a gazetted officer or a

Magistrate would cause prejudice to the accused

and render the recovery of the illicit article suspect

and vitiate the conviction and sentence of the

accused, where the conviction has been recorded

only on the basis of the possession of the illicit

article, recovered during a search conducted in

violation of the provisions of Section 50 of the Act.

The omission may not vitiate the trial as such, but

because of the inherent prejudice which would be

caused to an accused by the omission to be

informed of the existence of his right, it would

render his conviction and sentence unsustainable.

The protection provided in the section to an

accused to be intimated that he has the right to

have his personal search conducted before a

gazetted officer or a Magistrate, if he so requires, is

sacrosanct and indefeasible — it cannot be

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disregarded by the prosecution except at its own

peril.

33. The question whether or not the safeguards

provided in Section 50 were observed would have,

however, to be determined by the court on the basis

of the evidence led at the trial and the finding on

that issue, one way or the other, would be relevant

for recording an order of conviction or acquittal.

Without giving an opportunity to the prosecution to

establish at the trial that the provisions of Section

50 and, particularly, the safeguards provided in

that section were complied with, it would not be

advisable to cut short a criminal trial.

x x x x

45. … Prosecution cannot be permitted to take

advantage of its own wrong. Conducting a fair trial

for those who are accused of a criminal offence is

the cornerstone of our democratic society. A

conviction resulting from an unfair trial is contrary

to our concept of justice. Conducting a fair trial is

both for the benefit of the society as well as for an

accused and cannot be abandoned. While

considering the aspect of fair trial, the nature of the

evidence obtained and the nature of the safeguard

violated are both relevant factors. Courts cannot

allow admission of evidence  against an accused,

where the court is satisfied that the evidence had

been obtained by a conduct of which the

prosecution ought not to take advantage

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particularly when that conduct had caused

prejudice to the accused.

If after careful consideration of the material on

record it is found by the court that the admission of

evidence collected in search conducted in violation

of Section 50 would render the trial unfair then

that evidence must be excluded. In R. v. Collins,

(1987) 1 SCR 265 (Canada), the Supreme Court of

Canada speaking through Lamer, J. (as his

Lordship, Chief Justice of the Supreme Court of

Canada then was) opined that the use of evidence

collected in violation of the Charter rights of an

accused would render a trial unfair and the

evidence inadmissible. … x x x x

55. We, therefore, hold that an illicit article seized

from the person of an accused, during search

conducted in violation of the safeguards provided

in Section 50 of the Act, cannot by itself be used as

admissible evidence of proof of unlawful possession

of the contraband on the accused. Any other

material/article recovered during that search may,

however, be relied upon by the prosecution in

other/independent proceedings against an accused

notwithstanding the recovery of that material

during an illegal search and its admissibility would

depend upon the relevancy of that material and the

facts and circumstances of that case.”

48. This Court ultimately summed up its findings with

the following ten conclusions reproduced below:-

“57. On the basis of the reasoning and discussion

above, the following conclusions arise:

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(1) That when an empowered officer or a duly

authorised officer acting on prior information is

about to search a person, it is imperative for him to

inform the person concerned of his right under

sub-section (1) of Section 50 of being taken to the

nearest gazetted officer or the nearest Magistrate

for making the search. However, such information

may not necessarily be in writing;

(2) That failure to inform the person concerned

about the existence of his right to be searched

before a gazetted officer or a Magistrate would

cause prejudice to an accused;

(3) That a search made, by an empowered officer,

on prior information, without informing the person

of his right that, if he so requires, he shall be taken

before a gazetted officer or a Magistrate for search

and in case he so opts, failure to conduct his

search before a gazetted officer or a Magistrate,

may not vitiate the trial but would render the

recovery of the illicit article suspect and vitiate the

conviction and sentence of an accused, where the

conviction has been recorded only on the basis of

the possession of the illicit article, recovered from

his person, during a search conducted in violation

of the provisions of Section 50 of the Act;

(4) That there is indeed need to protect society from

criminals. The societal intent in safety will suffer if

persons who commit crimes are let off because the

evidence against them is to be treated as if it does

not exist. The answer, therefore, is that the

26

investigating agency must follow the procedure as

envisaged by the statute scrupulously and the

failure to do so must be viewed by the higher

authorities seriously inviting action against the

concerned official so that the laxity on the part of

the investigating authority is curbed. In every case

the end result is important but the means to

achieve it must remain above board. The remedy

cannot be worse than the disease itself. The

legitimacy of judicial process may come under

cloud if the court is seen to condone acts of

lawlessness conducted by the investigating agency

during search operations and may also undermine

respect for law and may have the effect of

unconscionably compromising the administration

of justice. That cannot be permitted. An accused is

entitled to a fair trial. A conviction resulting from

an unfair trial is contrary to our concept of justice.

The use of evidence collected in breach of the

safeguards provided by Section 50 at the trial,

would render the trial unfair.

(5) That whether or not the safeguards provided

in Section 50 have been duly observed would have

to be determined by the Court on the basis of

evidence led at the trial. Finding on that issue, one

way or the other, would be relevant for recording an

order of conviction or acquittal. 

Without giving an opportunity to the prosecution to

establish, at the trial, that the provisions of Section

50, and particularly the safeguards provided

27

therein were duly complied with, it would not be

permissible to cut- short a criminal trial;

(6) That in the context in which the protection has

been incorporated in Section 50 for the benefit of

the person intended to be searched, we do not

express any opinion whether the provisions

of Section 50 are mandatory or directory, but hold

that failure to inform the concerned person of his

right as emanating from sub-section (1) of Section

50, may render the recovery of the contraband

suspect and the conviction and sentence of an

accused bad and unsustainable in law;

(7) That an illicit article seized from the person of

an accused during search conducted in violation of

the safeguards provided in Section 50 of the Act

cannot be used as evidence of proof of unlawful

possession of the contraband on the accused

though any other material recovered during that

search may be relied upon by the prosecution, in

other proceedings, against an accused,

notwithstanding the recovery of that material

during an illegal search;

(8) A presumption under Section 54 of the Act can

only be raised after the prosecution has established

that the accused was found to be in possession of

the contraband in a search conducted in

accordance with the mandate of Section 50. An

illegal search cannot entitle the prosecution to raise

a presumption under Section 54 of the Act.

(9) That the judgment in Pooran Mal v. Director of

Inspection (Investigation), (1974) 1 SCC 345,

28

cannot be understood to have laid down that an

illicit article seized during a search of a person, on

prior information, conducted in violation of the

provisions of Section 50 of the Act, can by itself be

used as evidence of unlawful possession of the

illicit article on the person from whom the

contraband has been seized during the illegal

search; (10) That the judgment in Ali Mustaffa's

case correctly interprets and distinguishes the

judgment in Pooran Mal's case and the broad

observations made in State of H.P. v. Pirthi Chand,

(1996) 2 SCC 37, and State of Punjab v. Jasbir

Singh, (1996) 1 SCC 288, case are not in tune

with the correct exposition of law as laid down

in Pooran Mal's case.”

49. Thus, the Constitutional Bench in express terms laid

down that although the non-compliance of Section

50 may not vitiate the trial yet would render the recovery

of the contraband doubtful and may vitiate the

conviction of the accused. The emphasis laid by the

Court is on illicit articles seized from the “person of an

accused” during the search conducted in violation of

safeguards provided in Section 50 of the NDPS Act. In

other words, according to Baldev Singh (supra), the

provisions of Section 50 will come into play only in the

case of personal search of the accused and not of some

baggage like a bag, article or container, etc. which he

may be carrying.

When Section 50 could be said to be complied with?

50. This Court in a number of cases has dealt with this

very aspect and laid down the principles with respect to

when Section 50 be said to be complied with. This Court

29

in Manohar Lal v. State of Rajasthan reported in (1996)

11 SCC 391, held that Section 50 only requires the

option to be given to the accused to say whether he

would like to be searched in the presence of a Gazetted

Officer or Magistrate. The relevant observations made

therein are reproduced below:-

“2. … The provision only requires the option to be

given to the accused to say whether he would like

to be searched in the presence of a Gazetted Officer

or a Magistrate; and on exercise of that option by

the accused, it is for the officer concerned to have

the search made in the presence of the nearest

Gazetted Officer or the nearest Magistrate

whosoever is conveniently available for the purpose

in order to avoid undue delay in completion of that

exercise. It is clear from Section 50 of the NDPS Act

that the option given thereby to the accused is only

to choose whether he would like to be searched by

the officer making the search or in the presence of

the nearest available Gazetted Officer or the nearest

available Magistrate. The choice of the nearest

Gazetted Officer or the nearest Magistrate has to be

exercised by the officer making the search and not

by the accused.” (Emphasis supplied)

51. In Joseph Fernandez v. State of Goa reported in

(2001) 1 SCC 707, this Court held that only substantial

compliance of Section 50 is required, and informing the

suspect that if he wishes he may be searched in

presence of a Gazetted Officer or Magistrate without the

use of the word “right” would not amount to breach

of Section 50. The relevant observations made therein

are reproduced below:-

30

“2. Learned counsel tried to highlight a point

that Section 50 of the Narcotic Drugs and

Psychotropic Substances Act has not strictly been

complied with by PW 8, the officer who conducted

the search. According to the learned counsel for the

appellant the searching officer should have told the

person who was subjected to search that he had a

right to be searched in the presence of a gazetted

officer or a Magistrate. In this case PW 8 has

deposed that she told the appellant that if he

wished he could be searched in the presence of the

gazetted officer or a Magistrate to which the

appellant had not favourably reciprocated.

According to us the said offer is a communication

about the information that the appellant has a right

to be searched so. It must be remembered that the

searching officer had only Section 50 of the Act

then in mind unaided by the interpretation placed

on it by the Constitution Bench. Even then the

searching officer informed him that “if you wish you

may be searched in the presence of a gazetted

officer or a Magistrate”. This according to us is in

substantial compliance with the requirement

of Section 50. We do not agree with the contention

that there was non-

compliance with the mandatory provision contained

in Section 50 of the Act.”

52. In Prabha Shankar Dubey v. State of M.P. reported

in (2004) 2 SCC 56, this Court held that for the purpose

of due compliance of Section 50 there is no specific word

or form in which the communication is to be made and it

is not necessary to use the word “right”, as the person to

31

be searched is only required to be made aware that he

has a choice of having his search conducted before a

Gazetted Officer or Magistrate. The relevant observations

made in it are reproduced hereunder:-

“11. ... What the officer concerned is required to do

is to convey about the choice the accused has. The

accused (suspect) has to be told in a way that he

becomes aware that the choice is his and not of the

officer concerned, even though there is no specific

form. The use of the word “right” at relevant places

in the decision of Baldev Singh case seems to be to

lay effective emphasis that it is not by the grace of

the officer the choice has to be given but more by

way of a right in the “suspect” at that stage to be

given such a choice and the inevitable

consequences that have to follow by transgressing

it.”

53. However, a five-Judge Bench of this Court

in Vijaysinh Chandubha Jadeja v. State of

Gujarat reported in (2011) 1 SCC 609, overruled the

decisions in Prabha Shankar Dubey (supra) and Joseph

Fernandez (supra) and disapproved the concept of

“substantial compliance” and held that the obligation

under Section 50 is mandatory and the failure to comply

with the same would render the recovery of illicit article

suspicious and vitiate the conviction, more particularly if

the basis of conviction is the recovery of illicit article

from the accused during search. The person to be

searched is to be specifically informed that he has a

right to be searched in presence of a Gazetted Officer or

Magistrate. The Court also held that while it is the

choice of police to take the suspect either before a

32

Gazetted Officer or Magistrate, an endeavour should be

made to take him before Magistrate. The relevant

observations made therein are reproduced below:-

“29. In view of the foregoing discussion, we are of

the firm opinion that the object with which the

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 in holding that insofar 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 the illicit article

suspect and vitiate the conviction if the same is

recorded only on the basis of the recovery of the

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.

31. We are of the opinion that the concept of

“substantial compliance” with the requirement

of Section 50 of the NDPS Act introduced and read

into the mandate of the said section in Joseph

Fernandez and Prabha Shankar Dubey is neither

borne out from the language of sub-section (1)

33

of Section 50 nor it is in consonance with the

dictum laid down in Baldev Singh case. Needless to

add that the question whether or not the procedure

prescribed has been followed and the requirement

of Section 50 had been met, is a matter of trial. It

would neither be possible nor feasible to lay down

any absolute formula in that behalf.

32. We also feel that though Section 50 gives an

option to the empowered officer to take such person

(suspect) either before the nearest gazetted officer

or the Magistrate but in order to impart

authenticity, transparency and creditworthiness to

the entire proceedings, in the first instance, an

endeavour should be to produce the suspect before

the nearest Magistrate, who enjoys more confidence

of the common man compared to any other officer.

It would not only add legitimacy to the search

proceedings, it may verily strengthen the

prosecution as well.” (Emphasis supplied)

54. In Parmanand (supra) this Court held that Section

50 confers a right upon the accused to be searched

either by a Gazetted Officer or Magistrate, and as such

while informing the suspect of its right, only the

aforesaid two options can be provided. Section 50 could

be said to be violated where a third option is also offered,

be it that of being searched by the superintendent of

police or by the police officer himself.

55. Although a superintendent of police is a Gazetted

Officer, yet the reason why this court

in Parmanand (supra) held the third option to be bad in

law is because, first,   in that case  the Superintendent of

34

Police was a part of the raiding party and as such was

not an independent witness and secondly, as

discussed, Section 50 provides for only two options,

either a Magistrate or Gazetted Officer.

56. Thus, the person intended to be searched

under Section 50 must be told in clear and

unambiguous words that he has a right to have the

search conducted in presence of either a Gazetted Officer

or Magistrate. The person concerned must be made

aware of his right and must be given only two options

that have been provided under the section.

63. 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

35

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

credit worthiness to the entire proceedings. We clarify

that this compliance shall henceforth apply prospectively.

64. From the aforesaid discussion, the requirements

envisaged by Section 50 can be summarised as follows:-

(i) Section 50 provides both a right as well as an

obligation.

The person about to be searched has the right to

have his search conducted in the presence of a

Gazetted Officer or Magistrate if he so desires, and

it is the obligation of the police officer to inform

such person of this right before proceeding to

search the person of the suspect.

(ii) Where, the person to be searched declines to

exercise this right, the police officer shall be free to

proceed with the search. However, if the suspect

declines to exercise his right of being searched

before a Gazetted Officer or Magistrate, the

empowered officer should take it in writing from

the suspect that he would not like to exercise his

right of being searched before a Gazetted Officer or

Magistrate and he may be searched by the

empowered officer.

(iii) Before conducting a search, it must be

communicated in clear terms though it need not be

in writing and is permissible to convey orally, that

the suspect has a right of being searched by a

Gazetted Officer or Magistrate.

36

(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.

(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.

(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.

(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, 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.

37

(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.”

24. Judging the facts and circumstances of the

present case, in the light of aforesaid decisions of

Hon’ble Supreme Court, when, there is non-compliance

of Section 50 of the NDPS Act, then, alleged recovery of

cannabis, from the possession of the accused, becomes

suspicious.

25. Hence, it can be said that the learned trial Court

has fallen into an error by not considering the admitted

factual position, i.e. non-compliance of Section 50 of the

NDPS Act, by the I.O.. As such, judgment of conviction

does not sustain in the judicial scrutiny by this Court.

25 In view of the aforesaid discussion, the present

appeal is allowed, by setting aside the judgment of the

38

learned trial Court and the accused is acquitted from the

offence, punishable under Section 20 of the NDPS Act.

26. The bail bond and surety bond furnished by the

accused are discharged. He is directed to furnish the bail

bond in the sum of Rs. 50,000/- with one surety of the

like amount, under the provisions of Section 437-A Cr.

P.C. to the satisfaction of the learned Registrar (Judicial)

of this Court, within a period of seven days, by giving an

undertaking to appear before the Hon’ble Apex Court, in

case, this judgment is being assailed before the Apex

Court.

27. Record be sent back.

(Virender Singh)

Judge

January 5, 2026

(kalpana)

39