2026:HHC:10184 REPORTABLE

IN THE HIGH COURT OF HIMACHAL PRADESH

AT SHIMLA

Criminal Appeal No: 406 of 2015

Reserved on: 07.03.2026

Announced on : 06.04.2026

_______________________________________________________________

State of Himachal Pradesh

....Appellant

versus

Tara Chand

....Respondent

Coram:

Honble Mr. Justice Vivek Singh Thakur, Judge

Honble Mr. Justice Ranjan Sharma, Judge

1Whether approved for reporting? Yes

For the appellant: Mr. P.K. Nadda, Additional Advocate

General.

For the respondent: Mr. Chaman Negi and Ms. Kanta

Thakur, Advocates.

Ranjan Sharma, Judge

State of Himachal Pradesh, being appellant,

has come up in the instant appeal under Section

378 of the Code of Criminal Procedure, assailing the

judgment dated 16.03.2015, passed by Learned Special

Judge (1), Mandi [HP], in Sessions Trial No 48 of

2010, titled as State of Himachal Pradesh versus

Tara Chand, acquitting the Respondent-accused herein,

for the offence under Section 20 of Narcotic Drugs

and Psychotropic Substances Act, 1985 [referred to as

1

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

2

2026:HHC:10184 REPORTABLE

‘NDPS Act’ herein], alleging recovery of 450 grams

of Cannabis-Charas from his conscious and exclusive

possession on 29.03.2010 at about 08:10 a.m. at

Kupardhar.

PROSECUTION STORY:

2. Factual matrix, of the prosecution story

is, that a police patrolling party headed by PW-9

ASI Orender Singh; PW-1 Constable Ashwani Kumar ;

PW-2 HHG Brahma Nand and HHG Baldev had

gone in Government vehicle towards Ghatasni, near

Kupardhar, at about 08:10 a.m. During patrolling

a vehicle, tempo trax, bearing registration No. HP-01 M-

3704, came on the spot, which was full of passengers.

The vehicle was stopped by the police for the

purposes of checking. On seeing the police party,

Respondent-accused who was sitting on the backside

of vehicle became perplexed. On suspicion, Respondent

-accused was directed to alight from the vehicle and

his pant was found bulging out, and the accused

was suspected having some contraband inside his

pant. The police party associated PW-3 Ajay Guleria

and Bhim Chand (owner of temp trax-vehicle) as

3

2026:HHC:10184 REPORTABLE

witness to the incident. The consent of the Respondent

-accused for his personal search was obtained vide

Consent memo Ex PW-1/A. The members of the police

party afforded their search to the accused vide memo

Ex. PW-1/B and nothing was recovered from the

police party. Thereafter, police conducted the personal

search of the respondent-accused by making him to

remove his pant-jeans, when, a packet wrapped with

cello tape was recovered from the areas near the

private parts of body of accused and the same was

found to be containing black substance in the shape

of sticks and after smelling and testing the same

came out to be Charas and thereafter police prepared

Identification Memo of contraband vide Ex PW-1/C

and on weighing, the contraband was found to be

450 grams. The recovered contraband alongwith cello

tape and polythene wrapper was kept in parcel which

was sealed with five seals of impression “H”. The

recovered contraband was taken into possession vide

memo Ex PW-1/E. The photographs clicked vide Ex.

PW-2/A and Ex PW-2/B and NCB form Ex PW-8/D

4

2026:HHC:10184 REPORTABLE

was filled in on the spot and facsimile of seal was

obtained on NCB form and separately also.

2(i). The Investigating Officer prepared Rukka

Ex. PW-9/A and the same was sent through PW-1-

Constable Ashwani Kumar to PW-8 SHO-SI Sohan

Singh, who recorded FIR ExPW-8/A on 29.03.2010.

The Investigating Officer, PW 9 Orender Singh, prepared

Spot Map, Ex PW 9/B and recorded the statements

of witnesses. The respondent-accused was arrested

vide memo ExPW-9/D on 29.03.2010 at 01:30 p.m.

After completing the codal formalities, the case property

was handed over to PW-8 SI Sohan Singh, who

re-sealed the same with three seals of impression

“S” and drew the sample separately and facsimile

was obtained on NCB form also. The case property

was sent to Malkhana and PW-5-HC Prem Singh

made its entry in Malkhana register ExPW-5/A. On

30.03.2010, sealed parcel containing contraband

alongwith other documents, NCB form and sample

seals were sent to Forensic Science Laboratory, Junga

through PW-7-HHC Parma Dev vide Road Certificate

ExPW-5/B and the case property was deposited with

5

2026:HHC:10184 REPORTABLE

FSL and after receipt of the report from Chemical

Examiner, Ex. PW-10/B, the recovered contraband was

verified to be Cannabis-Charas. During investigation

special report Ex. PW-4/A was delivered to Additional

Superintendent of Police, Mandi, through PW-6 Constable

Hem Raj and PW-4 HHC Sant Ram, who made the

entry of special report in Special Report Register Ex.

PW-4/B.

2(ii). With reference to the above incident and based

on the investigation carried out by the investigating

agencies, the Final Police Report-Challan was prepared

by PW-8 SI Sohan Singh, on 13.05.2010 and the

aforesaid challan was submitted to Learned Special

Judge concerned.

2(iii). On 04.12.2012, Learned Special Judge (1),

Mandi [HP] framed the “Charge” against Respondent-

Accused and upon his pleading not guilty, the trial

commenced, in which the prosecution examined ten

witnesses. On closure of prosecution evidence, the

statement of the Respondent-Accused under Section

313 of the Code of Criminal Procedure was recorded

on 14.03.2014, by Learned Special Judge.

6

2026:HHC:10184 REPORTABLE

3. Pursuant to the trial conducted by Learned

Special Judge (1), Mandi, the Respondent-accused was

acquitted in terms of the judgment dated 16.03.2015,

{referred to as the Impugned Judgement}, with

the finding that prosecution has failed to prove that

the mandate of Section 50 of NDPS Act was complied

with before conducting the personal search of the

respondent-accused and due to non-compliance of

Section 50, recovery from the alleged possession

of the accused was vitiated and non-disclosure of

legal right to the accused for personal search either

before a Gazetted officer or a Magistrate as per

Section 50 of NDPS Act was fatal to the case of

the prosecution and since the prosecution has failed

to prove this point, therefore, the Respondent-Accused

was acquitted of the charge framed against him,

under Section 20 of the NDPS Act.

4. CONTENTION OF LEARNED COUNSEL FOR

APPELLANT STATE :

Learned State Counsel has contested the

appeal on the ground that Learned Trial Court had

acquitted the accused by drawing conclusion based

on surmises and conjectures and by appreciating

7

2026:HHC:10184 REPORTABLE

the evidence in slip-shod and perfunctory manner ;

and Learned Trial Court had failed to evaluate

the prosecution evidence in its true perspective ;

and the reasoning given by Learned Trial Court is

manifestly and unreasonable and unsustainable ; and

material evidence on record has been disregarded by

Learned Trial Court ; with the further plea in Para-6

of the grounds of appeal, that as per evidence of

prosecution witnesses, PW-1 [Constable Ashwani Kumar],

PW-8 [SHO-SI Sohan Singh], PW-9 [ASI-IO-Orender

Singh], PW-4 [HHC Sant Ram], PW-5 [HC Prem Singh]

and the exhibited documents establish and even FSL

has corroborated that the recovered contraband was

Cannabis-Charas, therefore, the offence stands proved

against the respondent-accused beyond all reasonable

doubts.

CONTENTION BY LEARNED COUNSEL FOR

RESPONDENT-ACCUSED:

5. Per contra, Learned Counsel for Respondent-

Accused has supported the Impugned Judgment dated

16.03.2015, by reasserting that the alleged contraband

was recovered, upon personal search of the body

of the respondent-accused but the aforesaid personal

8

2026:HHC:10184 REPORTABLE

search was conducted, firstly, by not disclosing the

availability of a legal right to the respondent-accused

to have his personal search either before a nearest

Gazetted Officer or to the nearest Magistrate, and

secondly, that PW-9-IO Orender Singh had erred in

giving three options to the respondent-accused for

personal search before himself-police or before nearest

Gazetted Officer or nearest Magistrate and the third

alternative option so given reveals non-compliance of

Section 50 of the NDPS Act, so as to render alleged

recovery affected upon personal search of the body

of the respondent-accused inadmissible in evidence.

Besides this, it is contented that the testimony of

PWs negates the prosecution story.

6. Heard, Mr. P.K. Nadda, Learned Additional

Advocate General for the Appellant-State and Mr. Chaman

Negi and Ms. Kanta Thakur, Learned Counsel, for the

Respondent-Accused.

7. Before analyzing the rival contentions, this

Court, feels it appropriate to have a recap of the

mandate of law, as to what statutory compliances

are stipulated under Section 50 of the NDPS Act

9

2026:HHC:10184 REPORTABLE

before conducting the personal search of the body

of an accused under NDPS and what would be the

effect of its non-compliance, have been spelt out by

in the following judgements.

MANDATE OF LAW ON STATUTORY COMPLIANCES

IN SECTION 50 OF NDPS ACT AND EFFECT OF

NON-COMPLIANCE:

7(i). While dealing with the issue as to what

are the statutory compliances stipulated in Section

50 of NDPS Act and what would be the effect of its

non-compliance has been answered by Constitutional

Bench of the Hon’ble Supreme Court in State of

Punjab versus Baldev Singh, (1999) 6 SCC 172,

by mandating that it is imperative on the Investigation

Officer to disclose the availability of a right to the

accused to be searched before the nearest Gazetted

Officer or nearest Magistrate and the omission of

Investigating Officer to conduct the personal search

before a nearest Gazetted Officer or a Magistrate,

would cause inherent prejudice to an accused and

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

10

2026:HHC:10184 REPORTABLE

basis of the possession of illicit article, recovered

during a search conducted in violation of Section

50 of NDPS Act and the effect of the non- compliance

of Section 50 shall render the incriminating material

allegedly recovered as inadmissible in evidence and

the same cannot be relied upon to hold the accused

guilty for being found to be in unlawful possession

of any contraband, in the following terms:-

“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 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 on the

Investigating Officer (empowered officer)

to ensure that search of the concerned

person (suspect) is conducted in the

manner prescribed by Section 50, by

intimating to the concerned person

11

2026:HHC:10184 REPORTABLE

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 an accused and 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

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 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

12

2026:HHC:10184 REPORTABLE

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.

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.”

7(ii). While dealing with effect of non-compliance

of Section 50 of NDPS Act, the Constitutional Bench

of the Hon’ble Supreme Court in Vijaysinh Chandubha

Jadega versus State of Gujrat (2011) 1 SCC 609,

held that it is mandatory that the accused is made

13

2026:HHC:10184 REPORTABLE

aware of existence of right to be searched before

a Gazetted Officer or Magistrate (orally or in writing)

but failure to inform the suspect of such a right

would cause prejudice to him an accused and the

non-compliance will render recovery of illicit article

suspect and vitiate the conviction and sentence of an

accused. The safeguards in Section 50 have been

introduced so as to check misuse of power and to

prevent innocent persons being implicated by plating

false cases. The obligation of the authorized officer,

including police officer to comply with Section 50

is mandatory and requires strict compliance, so as to

impart authencity, transparency and creditworthiness

to the entire proceedings and to add legitimacy to

the search proceedings, in the following terms :-

24. Although the Constitution Bench did not

decide in absolute terms the question

whether or not Section 50 of the NDPS

Act was directory or mandatory yet it

was held that provisions of sub-section

(1) of Section 50 make it imperative

for the empowered officer to "inform"

the person concerned (suspect) about the

existence of his right that if he so

requires, he shall be searched before a

gazetted officer or a Magistrate; failure

14

2026:HHC:10184 REPORTABLE

to "inform" the suspect about the

existence of his said right would cause

prejudice to him, 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 the person during a search conducted

in violation of the provisions of Section

50 of the NDPS Act. The Court also

noted that it was not necessary that

the information required to be given

under Section 50 should be in a

prescribed form or in writing but it

was mandatory that the suspect was

made aware of the existence of his

right to be searched before a gazetted

officer or a Magistrate, if so required

by him. We respectfully concur with

these conclusions. Any other interpretation

of the provision would make the valuable

right conferred on the suspect illusory

and a farce.

29. In view of the foregoing discussion, we

are of the firm opinion that the object

with which right under Section 50(1)

of the NDPS Act, by way of a safeguard,

has been conferred on the suspect, viz.

to check the misuse of power, to avoid

harm to innocent persons and to minimise

15

2026:HHC:10184 REPORTABLE

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 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 a 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.

MANDATE OF LAW-GIVING OF THIRD OPTION

FOR PERSONAL SEARCH VITIATES RECOVERY:

8. While dealing with obligation of authorized

person, including police officer “to inform or disclose”

the accused of his right for personal search before

a Gazetted Officer or a Magistrate under Section

50 of the NDPS Act, the Hon’ble Supreme Court in

Suresh and others versus State of Madhya Pradesh,

16

2026:HHC:10184 REPORTABLE

(2013) 1 SCC 550, mandated that merely asking an

accused to give his consent for personal search, either

before a police officer or Gazetted Officer or Magistrate

does not conforms to the safeguards stipulated under

Section 50 of the Act, and its non-compliance shall

render the recovery of alleged contraband suspect,

which cannot form basis for conviction of an accused,

in the following terms:-

“16. The above Panchnama indicates that the

appellants were merely asked to give

their consent for search by the police

party and not apprised of their legal

right provided under Section 50 of the

NDPS Act to refuse/ to allow the police

party to take their search and opt for

being searched before the Gazetted officer

or by the Magistrate. In other words, a

reading of the Panchnama makes it

clear that the appellants were not apprised

about their right to be searched before

a Gazetted officer or a Magistrate but

consent was sought for their personal

search. Merely asking them as to

whether they would offer their personal

search to him i.e., the police officer

or to Gazetted officer may not satisfy

the protection afforded under Section

50 of the NDPS Act as interpreted in Baldev

Singh’s case.

17

2026:HHC:10184 REPORTABLE

17. Further a reading of the judgments of

the trial Court and the High Court also

show that in the presence of Panchas,

the SHO merely asked all the three

appellants for their search by him and

they simply agreed. This is reflected in

the Panchnama. Though in Baldev Singh’s

case, this Court has not expressed any

opinion as to whether the provisions

of Section 50 are mandatory or directory

but “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 the conviction and sentence of an

accused bad and unsustainable in law.

In Vijaysinh Chandubha Jadeja’s case

(supra), recently the Constitution Bench

has explained the mandate provided

under sub-section (1) of Section 50 and

concluded that it is mandatory and

requires strict compliance. The Bench

also held that 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. The

concept of substantial compliance as

noted in Joseph Fernadez and Prabha

Shankar Dubey were not acceptable by

the Constitution Bench in Vijaysinh

Chandubha Jadeja, accordingly, in view

18

2026:HHC:10184 REPORTABLE

of the language as evident from the

panchnama which we have quoted earlier,

we hold that, in the case on hand,

the search and seizure of the suspect

from the person of the appellants is

bad and conviction is unsustainable in

law.”

8(i). While upholding the acquittal, where an

offer was made by authorized officer, including a

police officer, requiring or asking an accused to be

searched by police officer, in addition to Gazetted officer

or Magistrate, the Hon’ble Supreme Court has held

in State of Rajasthan v. Parmanand and another,

(2014) 5 SCC 345, that the aforesaid offer for personal

search before an Investigating Officer or a police

as a third alternative, defeats the protection granted

for being searched before an independent officer,

which is contrary to Section 50 of NDPS Act, when,

the Statute expressly contemplates personal search by

either of the two expressly named persons i.e. a

Gazetted Officer or a Magistrate only, in the following

terms:-

“16. It is now necessary to examine whether

in this case, Section 50 of the NDPS

Act is breached or not. The police witnesses

have stated that the respondents were

19

2026:HHC:10184 REPORTABLE

informed that they have a right to be

searched before a nearest Gazetted officer

or a nearest Magistrate or before PW-5

J.S. Negi, the Superintendent. They were

given a written notice. As stated by the

Constitution Bench in Baldev Singh, it

is not necessary to inform the accused

person, in writing, of his right under

Section 50(1) of the NDPS Act. His right

can be orally communicated to him. But,

in this case, there was no individual

communication of right. A common notice

was given on which only respondent

No.2-Surajmal is stated to have signed

for himself and for respondent No.1 –

Parmanand. Respondent No.1 Parmanand

did not sign.

19. We also notice that PW-10 SI Qureshi

informed the respondents that they

could be searched before the nearest

Magistrate or before a 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 a 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

20

2026:HHC:10184 REPORTABLE

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 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 . We have,

therefore, no hesitation in concluding that

breach of Section 50(1) of the NDPS

Act has vitiated the search. The conviction

of the respondents was therefore,

illegal.

8(ii). While dealing with validity of third option-

alternative for personal search of an accused under

NDPS Act, before a police officer, has been answered

by the Hon’ble Supreme Court in negative in Ranjan

Kumar Chadha versus State of Himachal Pradesh,

21

2026:HHC:10184 REPORTABLE

2023 SCC Online SC 1262, mandating Section 50

of NDPS Act only contemplates for giving option for

being personal search before a Gazetted Officer or a

Magistrate and it is improper for police to ask the

accused to exercise the third alternative-option for his

search before a police officer, in the following terms:-

“25. What is pertinent to note in the oral

evidence of PW 12 and PW 14

respectively referred to above, is that

the appellant herein was told or

rather informed that if he so desired,

he may get himself searched before

the ASI or before the Gazetted

Officer or Magistrate. Thus, it is evident

from the oral evidence of both PW 12

and PW 14 that three options were

given to the appellant herein-first to

be searched before the ASI i.e. Assistant

Sub-Inspector, second, before the Gazetted

Officer and third, before any Magistrate.

It is also pertinent to note that the

appellant was not informed in so many

words that it is his right under Section

50 of the NDPS Act to seek search before

a Gazetted Officer or Magistrate.

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

22

2026:HHC:10184 REPORTABLE

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 ?

29. Thus, from the oral evidence on 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.

49. 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…

51. Thus, the Constitutional Bench in express

terms laid down that although the non-

compliance of Section 50 may not vitiate

23

2026:HHC:10184 REPORTABLE

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.

66. From the aforesaid discussion, the

requirements envisaged by Section 50

can be summarised as follows:-

(i) Section 50 provides both a right as

well as an obligation. The person about

to be searched has the right to have

his search conducted in the presence

of a Gazetted 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

24

2026:HHC:10184 REPORTABLE

in writing from the suspect that he

would not like to exercise his right

of being searched before a Gazetted

Officer or Magistrate and he may be

searched by the empowered officer.

(iii) Before conducting a search , it must be

communicated in clear terms though it

need not be in writing and is permissible

to convey orally, that the suspect has

a right of being searched by a Gazetted

Officer or Magistrate.

(iv) While informing the right, only two

options of either being searched in

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) to (ix) .....not relevant…

(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.”

8(iii). The principle of law declared in the case

of Ranjan Kumar Chadha (supra) has been reiterated

by the Hon’ble Supreme Court in State of Himachal

25

2026:HHC:10184 REPORTABLE

Pradesh v. Surat Singh [Criminal Appeal No.96

of 2018, decided on 16.03.2026, 2026 SCC Online

SC 376, that the third option for personal search

before a Police Officer given in addition to search

before a Gazetted Officer or a Magistrate and this

non-compliance and departure from the provision of

law is contrary to the express mandate of Section

50 of the NDPS Act, in the following terms:-

17. The High Court vide its judgement

dated 08.10.2015 acquitted the respondent-

accused while observing as under:

17. “The accused was apprehended on

13.03.2013 while carrying a bag. However,

despite that his personal search was

carried out. The police has 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 I.O. 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

26

2026:HHC:10184 REPORTABLE

conformity with Section 50 of the Act.

It has vitiated the entire trial.

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 re-

veals 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.

19. Thus, in our opinion, the present

appeal is devoid of merits and

deserves to be dismissed. Accordingly,

the same is hereby dismissed.

8(iv). While dealing with a similar fact-situation,

the acquittal for non-compliance of Section 50 of

NDPS Act was upheld by the Division Bench of this

27

2026:HHC:10184 REPORTABLE

Court in State of Himachal Pradesh v. Anil Kumar

alias Rinku [Criminal Appeal No.478 of 2015], decided

on 25.03.2026, in the following terms:-

“11. According to PW-2, police had left the

Police Station at 2:20 P.M., whereas

according to PW-9, police party left the

Police Station at about 11:00 A.M. and

reached Hanogi Mata at 12:00 noon.

According to the challan presented in

the Court as also stated in the ruqua,

on the basis of which FIR has been

registered, it has been stated that

respondent was overpowered on the basis

of suspicion of having stolen property

with him, but at the same time it has

been further stated that area was secluded

and, therefore, independent witness was

not available. Therefore, officials were

associated as witnesses and after giving

jamatalashi by the police party to the

said person, consent of respondent was

obtained, as provided under Section 50

of NDPS Act and, thereafter, personal

search of the respondent was conducted .

12. In the Court, PW-9 has stated that he

asked the respondent as to whether he

was having some NDPS substance and

therefore, he wanted to search him,

whereupon consent was given by the

respondent and respondent was searched.

18. According to prosecution, contraband was

recovered from the person of the respondent.

28

2026:HHC:10184 REPORTABLE

Consent memo depicts that it was stated

to the respondent by PW-9 that he had

a doubt that respondent was having

some narcotic drug, therefore, he intended

to search the respondent and, thereafter,

respondent was asked to give consent

for search to some Magistrate or Gazetted

Officer by stating that it was the right

of the respondent under NDPS Act.

21. As per consent alleged to be given by

the respondent, it has been stated that

respondent had stated that he voluntarily

wanted to give his search to the Investigating

Officer.

23. In present case, respondent did not

decline to exercise his right, rather his

consent has been recorded for giving

search to the Investigating Officer.

As per mandate of the Apex Court that

only two options are to be given to

the respondent and any third option will

vitiate the proceedings. In present case,

there is nothing on record in writing

that respondent declined to exercise

his right, rather a third option appears

to have been given, as evident from the

consent alleged to have been recorded

in the consent memo. The memo is

not in consonance with the requirement

envisaged by Section 50 of NDPS Act,

as summarized in Ranjan Kumar

Chaddha’s case and therefore also, the

trial vitiates.

29

2026:HHC:10184 REPORTABLE

25. In view of above discussion, we are

of the considered opinion that respondent

deserves benefit of doubt and we do

not find any ground for interfering in

the judgment of acquittal for the reasons

stated here-in-above.”

ANALYSIS:

9. Taking into account the entirety of facts

and circumstances, the evidence on record and the

mandate of law, this Court is of the considered view

that the Impugned Judgment dated 16.03.2015 passed

by Learned Special Judge, acquitting the Respondent

-accused, in Sessions Trial No. 48 of 2010, titled

as State of Himachal Pradesh versus Tara Chand,

does not suffer from any infirmity or illegality, for

the following reasons:-

9(i). The prosecution story is, that a police

patrolling party headed by PW-9 ASI Orender Singh;

PW-1 Constable Ashwani Kumar ; PW-2 HHG Brahma

Nand and HHG Baldev had gone in a Government

vehicle towards Ghatasni, near Kupardhar at about

08:10 a.m. During patrolling a vehicle, tempo- trax

bearing registration No. HP-01 M-3704, came on the

spot, which was full of passengers. The vehicle was

30

2026:HHC:10184 REPORTABLE

stopped by the police for checking. On seeing the

police party, Respondent-accused who was sitting on

backside of vehicle became perplexed. On suspicion,

Respondent-accused was directed to alight from the

vehicle and his pant was found bulging out, and

the accused was suspected having some contraband

inside his pant. The police party associated PW-3

Ajay Guleria and Bhim Chand (owner of temp trax-

vehicle) as witness to the incident. The consent of

the Respondent-accused for his personal search was

obtained vide Consent memo Ex. PW-1/A. The police

conducted the personal search of respondent-accused

by making him to remove his pant-jeans, when, a

packet wrapped with cello tape was recovered from

the areas near the private parts of body of accused

and the same was found to be containing black

substance in the shape of sticks and after smelling

and testing the same came out to be Cannabis-

Charas, and as per the Identification Memo vide

Ex. PW-1/C, and on weighing, the contraband was

found to be 450 grams. After recovery, upon personal

search of the respondent-accused and after completing

31

2026:HHC:10184 REPORTABLE

codal formalities, the Investigating Officer prepared

Rukka Ex. PW-9/A and the FIR Ex. PW-8/A was

registered on 29.03.2010 and respondent-accused was

arrested vide arrest memo Ex. PW-9/D on 29.03.2010

at 01:30 p.m.

9(i-a). Perusal of the Consent Memo for personal

search, Ex PW-1/A dated 29-03-2010 establishes that

PW-9 [Orender Singh, IO] had given the third option-

alternative to the respondent-accused for his personal

search either before him [Orender Singh, IO] or a

Gazetted Officer or a Magistrate, in the following terms:-

Translation of Ex PW-1/A

“Police Station Padhar at Drang

Consent memo for personal search:

I, HC Orender Singh, I.O. Police Station, Padhar,

District Mandi, do hereby informs Tar Chand

son of Shri Setu Ram, Caste: Rajput, Village

Graman, Post Office Shilh Badhani, Tehsil Padhar,

District Mandi that you are suspected to be in

possession of psychotropic substance for which

you are liable to be personally search. Accordingly,

you are informed of the right for personal search,

if so desired, by me or other Gazetted Officer or

a Magistrate.

Sd/-

Orender Singh, I.O.

P.S. Padhar dt 29/03/2010

32

2026:HHC:10184 REPORTABLE

Red Mark A

I want my personal search

to be done by you-police

Red Mark A

Sd/- (in Hindi)

TARA CHAND

Witness Witness

Sd/- (in Hindi) Sd/- (in English)

Bhim Chand Ajay Guleria

S/o Sh Radhe Lal S/o Sh. Inder Singh,

Tehsil Padhar, District Mandi. Village Balakrupi, P.O.

Joginder Nagar, District

Mandi.

Witness

Sd/-

Constable Ashwani Kumar

No.165, Police Station,

Padhar, District Mandi.

Seal of Court

EX PW/1/A dated 19.08.2013

Court of Special Judge,

Mandi (HP)

Attested

Sd/-

Orender Singh

I.O. P.S. Padhar,

Dt. 29.03.2010”

GIVING THIRD OPTION FOR PERSONAL SEARCH

AND THAT TOO BEFORE RAIDING PARTY RENDERS

RECOVERY INADMISSIBLE IN EVIDENCE :

9(i-b). Perusal of Consent Memo, Ex PW-1/A, for

personal search reveals that PW-9 Investigating Officer

[Orender Singh] has given a third option-alternative

to the respondent-accused for personal search before

him, a police officer [PW9-Orender Singh, IO], who

was a member of the raiding party.

33

2026:HHC:10184 REPORTABLE

In this backdrop, the personal search of

the respondent-accused, cannot sustain for the

reason, firstly, Section 50 of NDPS Act provides for

personal search before either of the “two designated

officers” i.e. before a Gazetted Officer or a Magistrate

and “giving of third option-alternative” for personal

search before a police officer” is not contemplated

under Section 50 of the Act. Investigating Officer

took a departure from the express provisions of

law and Investigating Officer had committed an

act contrary to the provisions of law; and secondly,

action of Investigating Officer, PW-9 Orender Singh,

in giving an option, Ex PW-1/A, to the accused for

personal search before him, a police officer, who

was a member of raiding party, defeats the protection

granted to accused for personal search before an

independent officer; and thirdly, it is improper for

an Investigating Officer (PW-9) to have even asked

an accused for personal search before third option-

alternative, i.e. before a police officer, who was a

member of raiding party; and fourthly, the action of

Investigating Officer (PW-9) in giving three options-

34

2026:HHC:10184 REPORTABLE

alternatives for personal search and that too before

a member of the raiding party, defeats the protection

and safeguards conferred to an accused for personal

search before independent designated officers (Gazetted

Officer or Magistrate}, under the Act ; and fifthly,

action of Investigating Officer (PW-9) in giving three

options-alternatives for personal search and that too

before a member of the raiding party is contrary

to the object and intent of Section 50 of NDPS

Act; and sixthly, perusal of the deposition of PW-9

Orender Singh I.O.] establishes that he obtained the

consent of respondent-accused vide memo Ex PW-1/A

regarding his personal search by the police party

present at the spot, as per endorsement in red- circle

marked as A to A on the consent form Ex PW-1/A.

PW-9 [Orender Singh I.O.] has deposed that he gave

three options-alternatives to the respondent-accused for

personal search by him i.e. PW-9-Investigating Officer

or a Gazetted Officer or a Magistrate. Even PW-1 [C,

Ashwani Kumar, a member of raiding party], deposed

that PW-9, {Orender Singh IO} asked for consent

and respondent-accused consented for his personal

35

2026:HHC:10184 REPORTABLE

search by police party-IO present on the spot ; and

seventhly, compliance of Section 50 is mandatory

and non-adherence of the pre-requisites for personal

search mandated under Section 50 of NDPS Act

shall render the incriminating material so recovered

upon personal search of an accused as inadmissible

in evidence and such material cannot be relied upon

to hold the accused as guilty, as per the mandate

of law declared by the Constitutional Bench of the

Honble Supreme Court in Baldev Singh and Vijay

Singh Chandubha (supra); and eighthly, action of

giving three options-alternatives for personal search

and/or before a member of raiding party is contrary

to the law declared by the Honble Supreme Court

in cases of Suresh, Parmanand, Ranjan Kumar

Chadha and Surat Singh (supra); and lastly, on

facts of instant case, a perusal of Seizure-Memo,

Ex.PW-1/E, dated 29-03-2010 reveals that the alleged

contraband {Cannabis-Charas, 450 grams} seized upon

personal search (conducted contrary to norms) was

the only contraband and no other contraband existed,

therefore, alleged contraband so recovered {contrary

36

2026:HHC:10184 REPORTABLE

to law}, is inadmissible in evidence and the said

recovery cannot be relied upon against the respondent-

accused to hold him guilty.

In this backdrop, Learned Special Judge

has committed no error in acquitting the respondent-

accused of the offence under Section 20 of the NDPS

Act, for non-compliance of Section 50 of the NDPS

Act.

FAILURE OF PROSECUTION TO INFORM-DISCLOSE

OF RIGHT FOR PERSONAL SEARCH BEFORE

GAZETTED OFFICER OR MAGISTRATE VITATES

RECOVERY:

10. PW-9 [Orender Singh I.O.] deposed in cross-

examination that he did not apprised the respondent

-accused of his right to be searched before a Gazetted

Officer or Magistrate.

Even, PW-1 [C, Ashwani Kumar, a member

of raiding party], deposed that PW-9, {Orender Singh

IO} asked for consent and the respondent-accused

consented for his personal search by the police party

present on the spot. In cross examination, PW-1 [C,

Ashwani Kumar], has testified that before obtaining

consent of accused, the PW-9 {Orender Singh IO} has

not informed respondent-accused of his legal right

37

2026:HHC:10184 REPORTABLE

for his personal search before a Gazetted officer or

a magistrate despite the fact that various Gazetted

Officers and Magistrates were available at Jogindrnagar

(nearest place) but no efforts were made by PW-9

{Orender Singh IO} to take the accused to either of

them.

Non-disclosure of right for personal search

before any of the “two designated officers” named in

Section 50 of NDPS Act i.e. a “Gazetted Officer or

Magistrate”. Informing or disclosure of such a right

to an accused for personal search before either of

two designated officers is sacrosanct and indefeasible

is imperative. The prosecution cannot disregard to

inform or disclosure the availability of such a right

for personal search before either of two named

designated officers. The omission of the prosecution

to inform or disclose to an accused of such valuable

right, shall certainly deprive an accused of the

resultant protection contemplated under the Act and

shall prejudice an accused. Omission to inform or

disclose such a right is mandatory in terms of the

law declared by the Honble Supreme Court in

38

2026:HHC:10184 REPORTABLE

Baldev Singh and Vijay Singh Chandubha (supra).

The alleged recovery effected, upon personal search

conducted illegally, without disclosing such a right

cannot sustain and said recovery cannot be used

or relied upon against an accused . Accordingly,

the Impugned Judgement passed by Learned Special

Judge acquitting the respondent-accused herein, does

not suffer from any infirmity or illegality.

GLARING INFIRMITIES AND DISCRIPENCIES IN

PROSECUTUION CASE:

11. PW-9 [Orender Singh I.O.] deposed that all

the memos, i.e. Consent memo Ex.PW-1/A with

mark A to A, and the Search memo, Ex PW-1/B, and

Identification memo, Ex.PW-1/C and the seizure memo

Ex. PW-1/E, were prepared in presence of witnesses.

Once PW-1, C Ashwani Kumar, PW-3 Ajay Guleria,

and Bhim Chand were the attesting witness to these

memos then, non-examination of one of the attesting

witness {Bhim Chand}. Even no explanation has been

offered by prosecution for not examining the aforesaid

independent witness, is a glaring infirmity-discrepancy

in the process of seizure. Non-examination of attesting

independent witness and absence of any explanation

39

2026:HHC:10184 REPORTABLE

for their non-examination, creates doubt about the

seizure of contraband, in terms of the mandate of

law declared by the Honble Supreme Court in the

case of Mohammad Khalid and another versus State

of Telangana (2024) 5 SCC 393 {Para 21} and similar

view has been taken in the case of Nadeem Ahmed

vs State of West Bengal, 2025 SCC Online 1779

{Para 28 (d)} rendering the prosecution story incredible.

11(i). Besides this, even the non- examination of

Tula Ram, shopkeeper from whom the police personnel

brought the wights and measure and non-examination

of HHG Baldev, another member of the patrolling party

creates doubt about the entire process.

11(ii). Even deposition of PW-3 [Ajay Guleria, an

independent witness} has deposed that he had not

read the contents of consent memo Ex Pw- 1/A and

its encircled portion “A to A” before signing it and

contents of the consent memo and its endorsement

A to A were not read over to him by PW-9 {Orender

Singh, IO}, before obtaining his signatures.

11(iii). Grave discrepancy in time of search and

seizure exists, whereby, PW-2 [C Ashwani Kumar, a

40

2026:HHC:10184 REPORTABLE

member of patrolling party], deposed that he started

checking the vehicle at 9.45 am and after 5 minutes

(09.50 am), the vehicle in which accused was travelling

reached the spot whereas on the other hand, PW-9

[Orender Singh, IO] deposed in cross examination that

all proceedings i.e. checking of vehicle, search and

seizure were completed between 8.10 to 8.50 am.

11(v). Another glaring discrepancy is regarding

Rukka and registration of FIR. It has come on record

that PW-9, Orender Singh, IO stated that he prepared

Rukka, Ex PW-9/A, on 29-03-2010 at 10.15 am whereas

PW-1 [C, Ashwani Kumar], deposed that he brought

the Rukka from Kuferdhar (spot of alleged incident)

at 12.00 noon by taking lift in a private vehicle.

Rukka reveals that the distance from Kupardhar to

Police Station Padhar was 33 Kilometers whereas the

FIR Ex PW-1/8, was registered on 29-03-2010 at 12.05

noon. Factum as how could PW-1, Ashwani Kumar

reached with the Rukka from the spot i.e. Kupardhar

to PS Padhar i.e. to a distance of 33 Kms, within

5 minutes and that too in a hilly terrain creates

doubt about the prosecution story.

41

2026:HHC:10184 REPORTABLE

In aforesaid circumstances, the Impugned

judgment dated 16.03.2012 passed by Learned Special

Court, acquitting the Respondent-Accused does not

suffer from any perversity and illegality.

DIRECTIONS:

12. In view of the above discussion and for

the reasons recorded hereinabove, instant appeal is

dismissed, in the following terms:

(i) Criminal Appeal No 406 of 2015,

titled as State of Himachal Pradesh

versus Tara Chand, is dismissed ;

(ii) Impugned Judgment dated 16.03.2015

passed in Sessions Trial No 48 of

2010 by Learned Special Judge (1)

Mandi [HP], is upheld ;

(iii) Acquittal of the respondent-accused

is reiterated.

In the aforesaid terms, the instant appeal

and all pending miscellaneous application(s), if any,

shall accordingly stand disposed of.

(Vivek Singh Thakur)

Judge

(Ranjan Sharma)

Judge

April 06, 2026

[Bhardwaj]