Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 896 (HP)

Charanjit Singh v. State of H. P.

2025-05-05

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment of conviction and order of sentence dated 13.04.2023, passed by learned Special Judge, Sundernagar, District Mandi, H.P., vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as ‘the ND&PS Act’) and was sentenced to undergo rigorous imprisonment for fouryears, pay a fine of Rs.20,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of an offence punishable under Section 20 of the ND&PS Act. It was asserted that HC Ram Lal (PW9), H.C. Sanjeev Kumar (PW6), HHC Kishori Lal, Constable Chet Ram, and LHC Deena Nath had set up the nakka at Naulakha to check vehicles on 19.06.2014. They stopped a bus bearing registration number PB-12Q-9952, which was coming from Manali and going to Chandigarh. The police began checking the luggage of the passengers. The passenger occupying the last seat became frightened. H.C. Ram Lal, along with conductor Pavitar Singh (PW1), inquired about the name of the passenger, who revealed his name as Charanjit Singh (the accused). H.C. Ram Lal informed the accused that he (H.C. Ram Lal) suspected that the accused was carrying narcotics, and that the accused had the right to be searched before a Magistrate or Gazetted Officer. The accused consented to a search by the police. A memo (Ex. PW1/B) was prepared. The police party gave their personal search to the accused, and nothing incriminating was found in their possession. Memo (Ex.PW1/A) was prepared. H.C. Ram Lal conducted the personal search of the accused and recovered one polythene packet (Ex.P2) from the right pocket of the accused's pants.The packet was checked, and it was found to contain black sticks (Ex. P3). These were identified as cannabis. H.C. Ram Lal weighed the cannabis along with the polythene packet, finding its total weight to be 202 grams. He weighed the cannabis without the packet, which weighed 195 grams. P3). These were identified as cannabis. H.C. Ram Lal weighed the cannabis along with the polythene packet, finding its total weight to be 202 grams. He weighed the cannabis without the packet, which weighed 195 grams. He placed the cannabis back into the polythene packet in the same manner as it was recovered. He then placed the polythene packet into a cloth parcel and sealed it with six seals marked ‘H’. He filled out the relevant sections of the NCB-1 form (PW4/E) in triplicate and applied the seal impression ‘H’ on the form. He obtained a specimen seal impression (Ex. PW1/C) on a separate piece of cloth and handed over the seal to H.C. Sanjeev Kumar (PW6) after its use. He took photographs (Ex.PW9/A/1 to Ex.PW9/A/4). He seized the parcel, NCB-1 form in triplicate, and sample seal vide memo (Ex. PW1/D). He prepared a rukka (Ex.PW9/B) and handed it over to LHC Deena Nath (PW7) with instructions to take it to the police station at BSNL Colony, Sundernagar. LHC Deena Nath delivered the rukka to Rattan Singh (PW4), who registered the FIR (Ex. PW4/A) and returned the case file to LHC Deena Nath with instructions to take it to the spot. ASI Ram Lal prepared a site plan (Ex.PW9/C) and recorded statements of the witnesses as per their accounts. He arrested the accused vide memo (Ex. PW9/D) and conducted his personal search vide memo (Ex. PW6/A). He presented the accused and the case file before Rattan Singh (PW4). Rattan Singh checked the seals of the parcel and resealed it with six seals marked ‘T’, and obtained the sample seal on a separate cloth (Ex. PW4/D). He prepared a memo of resealing (PW4/C), filled columns 9 to 11 of the NCB-1 form, and applied seal ‘T’ on the form. He handed over the case property, documents, and sample seals to LHC Nand Lal (PW8), who made an entry in the malkhana register at serial No. 306 (Ex.PW8/A) and stored the case property in the malkhana. He transported the parcel, sample seals, and documents to FSL Junga vide R.C No. 35 of 2014 (Ex.PW8/B) dated 20.06.2014 and safely handed them over to the officials at FSL Junga. H.C. Ram Lal prepared a special report (Ex.PW2/A) and delivered it to Addl. Superintendent of Police Kulbhushan Verma (PW3) on 20.06.2014. He transported the parcel, sample seals, and documents to FSL Junga vide R.C No. 35 of 2014 (Ex.PW8/B) dated 20.06.2014 and safely handed them over to the officials at FSL Junga. H.C. Ram Lal prepared a special report (Ex.PW2/A) and delivered it to Addl. Superintendent of Police Kulbhushan Verma (PW3) on 20.06.2014. Kulbhushan Verma made the endorsement (Ex.PW3/A) on the special report and handed it to HHC Sant Ram, his Reader, who entered it in the concerned register and retained the report on record. The chemical analysis result (Ex.PW9/E) stated that the exhibit was an extract of cannabis and a sample of charas, which contained 26.22 per cent w/w resin. The statements of the remaining witnesses were recorded as per their accounts. After completing the investigation, the challan was prepared and presented before the learned Trial Court. 3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the ND&PS Act, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined nine witnesses to prove its case. Pavitar Singh (PW1) is the conductor of the bus. HHC Sant Ram (PW2) was working as a Reader to Addl. Superintendent of Police Kulbhushan Verma (PW3). Rattan Singh (PW4) signed the FIR and re-sealed the case property. HHC Nand Lal (PW5) proved the entries in the daily diary. ASI Sanjeev Kumar (PW6) and HHC Deena Nath (PW7) are the witnesses to recovery. Nand Lal (PW8) was the additional malkhana In-charge, to whom the case property was handed over and who carried it to FSL Junga. ASI Ram Lal (PW9)conducted the investigation. 5. The accused in his statement recorded under Section 313 of CrPC admitted that the police party was on patrolling duty and they spotted the bus bearing registration number PB-12Q-9952. He admitted that he was occupying seat no. 48, but he denied that he was carrying any objectionable material. He admitted that he disclosed his name to the police. He denied the rest of the prosecution's case. He stated that witnesses deposed falsely against him, and he was innocent. He did not produce any defence evidence. 6. The learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. Minor contradictions in the statements were not sufficient to doubt the prosecution's case. He denied the rest of the prosecution's case. He stated that witnesses deposed falsely against him, and he was innocent. He did not produce any defence evidence. 6. The learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. Minor contradictions in the statements were not sufficient to doubt the prosecution's case. The accused was informed of his right to be searched before a Gazetted Officer or Magistrate, and there was sufficient compliance with regard to the requirement of Section 50 of the NDPS Act. The testimonies of the police officials cannot be discarded on the ground that they are the official witnesses. The failure to join an independent witness is not fatal to the prosecution's case. Minor contradictions are bound to come in the testimonies of the witnesses when they are examined after a long time, and these are not sufficient to discard the prosecution's case. Hence, the accused was convicted of the commission of an offence punishable under Section 20 of the ND&PS Act and sentenced as aforesaid. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in appreciating the evidence on record. Pavitar Singh (PW1) has not supported the prosecution's case. There was non- compliance with Section 50 of the NDPS Act. The seal was never produced before the Court, and non-production of the seal is fatal to the prosecution's case. Therefore, it was prayed that the present be appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Ms. Shikha Chauhan, learned counsel for the appellant/accused, and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State. 9. Ms. Shikha Chauhan, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. There were various contradictions in the testimonies, which made the prosecution's case suspect. There was non-compliance with Section 50 of the NDPS Act. The seal was not produced before the Court, and the same is fatal to the prosecution's case. Therefore, she prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 10. There was non-compliance with Section 50 of the NDPS Act. The seal was not produced before the Court, and the same is fatal to the prosecution's case. Therefore, she prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 10. Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State, supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with it. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. It was specifically mentioned in the rukka and was also stated on oath by Ram Lal (PW9), Deena Nath (PW7) and Sanjeev Kumar (PW6) that the personal search of the accused was conducted during which a polythene packet was recovered from right pocket of the pants of the accused which he was wearing. It was laid down by the Hon’ble Supreme Court in State of H.P. Versus Pawan Kumar (2005) 4 SCC 350 that the word person includes the body of a human being as presented to public view, usually with its appropriate coverings and clothing. It was observed: - “10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or bodies of individuals, as factually, in these types of cases, a search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section, it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad, common-sense manner and, therefore, not the naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view, usually with its appropriate coverings and clothing". In a civilised society, appropriate coverings and clothing are considered absolutely essential, and no sane human being comes into the gaze of others without appropriate coverings and clothing. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view, usually with its appropriate coverings and clothing". In a civilised society, appropriate coverings and clothing are considered absolutely essential, and no sane human being comes into the gaze of others without appropriate coverings and clothing. The appropriate coverings will include footwear also, as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothing, or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief, do not cover their body with clothing, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothing and also footwear. 13. Therefore, clothes are included in the definition of a person as per the judgment of the Hon’ble Supreme Court. 14. In the present case, the recovery was made from the right pocket of the jeans worn by the accused. Thus, the recovery was made from the person of the accused. Section 50 of the ND&PS Act deals with the search of a person. It reads as under: - “50. Conditions under which the search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. (4) No female shall be searched by anyone except a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. (4) No female shall be searched by anyone except a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and, within seventy-two hours, send a copy thereof to his immediate official superior. 15. Thus, the police were required to comply with Section 50 of the NDPS Act and to inform the accused of his right to be searched before a Magistrate or Gazetted Officer. 16. The consent memo (Ex. PW1/B) mentions that the accused was told that he could give his search to the Gazetted Officer or the Magistrate, which was his right. The accused wrote in Punjabi that he wanted to give his search to the police. There is no explanation of how the accused opted to be searched by the police. He was only given an option to be searched before a Magistrate or a Gazetted Officer. Therefore, he could have only chosen to be searched before a Magistrate or a Gazetted Officer. If no option to be searched by the police was given to the accused, he could not have opted to be searched by the police. He could have declined to be searched by the Magistrate or the Gazetted Officer, but without being informed that he could be searched before the police, he could not have mentioned specifically that he wanted to be searched before the police. This shows that the accused was given an option to be searched by the police as well, and that is why he opted to be searched by the police. This shows that the accused was given an option to be searched by the police as well, and that is why he opted to be searched by the police. It was laid down by the Hon’ble Supreme Court in the State of Rajasthan Vs. Parmanand & another (2014) 5 SCC 345, that Section 50 only provides an option to be searched before a Magistrate or a Gazetted Officer, and it does not provide for a third option to be searched before the police. It was observed: “19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate, before the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution's case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question of whether, if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it, and when such an option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated.” 17. The law regarding the third option given to the accused was exhaustively considered by this Court in Pradeep Singh alias Rocky vs State of Himachal Pradesh, 2020(1) Him. L.R. 133, and it was held that giving the third option to the accused is fatal. It was observed: “3(iii)(c). The law regarding the third option given to the accused was exhaustively considered by this Court in Pradeep Singh alias Rocky vs State of Himachal Pradesh, 2020(1) Him. L.R. 133, and it was held that giving the third option to the accused is fatal. It was observed: “3(iii)(c). Under the provisions of Section 50 of the Act, the accused has to be informed about his legal rights regarding search before a Magistrate or Gazetted Officer. 3(iii)(d). In the instant case, the consent memo (Ext.PW-1/A), obtained from the accused, shows that in addition to the two statutory options of search before the Magistrate or the Gazetted Officer, a 3rd option was also given to the accused for getting himself searched before any other police officer. It is in such circumstances that the accused gave his search to the police party. Giving 3 rd option to the accused was clearly contrary to the mandatory provisions of Section 50 of the Act. In the case titled State of Rajasthan versus Parmanand and Another, (2014) 5 SCC 345 , it has been held by the Hon'ble Apex Court that such a 3 rd option could not be given when there was no provision under Section 50(1) of the Act. Relevant para of the said judgment is reproduced as under: - "19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate, or before the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution's case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether, if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it, and when such an option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated." Relying upon the above judgment, in a case titled SK. Raju alias Abdul Haque alias Jagga versus State of West Bengal, (2018) 9 SCC 708 Hon'ble Apex Court further observed thus: - "18. In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two-judge Bench of this Court considered whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two-judge Bench of this Court in Dilip v State of M.P. ] It was held thus: ( Parmanand , SCC p.351, para 15). "15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have an application. 19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate, before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. 19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate, before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being searched before the Superintendent, who was not an independent officer." Effect of giving the 3rd option: 3(iii)(e). The effect of illegality committed during the course of the search of the accused has been considered by the Hon'ble Apex Court in titled State of H.P. versus Pawan Kumar, (2005) 4 SCC 350 , wherein, after considering various judgments on the question, it was observed thus: - "26. The Constitution Bench decision in Pooran Mal v. The Director of Inspection, (1974) 1 SCC 345 was considered in State of Punjab v. Baldev Singh and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between the recovery of illicit drugs, etc., seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 of the Act was taken, and it was held that failure to inform the person concerned of his right as emanating from sub- Section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him." In a case titled State of H.P. versus Rakesh 2018 LHLJ 214 (HP) , this Court observed as under: - "18. ....................................................................... Now, in view of the above, this Court has to examine whether the provisions of Section 50 of the NDPS Act are applicable to the present case and, if applicable, then whether those have been breached or not. Admittedly, as per the version of PW-3, HC Chaman Lal, he has conducted the personal search of both the accused persons and also prepared search memos, Ex. PW-3/P and Ex. PW-3/Q. If only the bag of the accused persons would have been searched, then Section 50 of the NDPS Act has no application, but as the personal search of the accused persons was also conducted, certainly Section 50 of the NDPS Act is applicable. In fact, Section 50 of the NDPS Act has a purpose and communication of the said right, which is ingrained in Section 50, to the person who is about to be searched, is not an empty formality. Offences under the NDPS Act carry severe punishment, so the mandatory procedure, as laid down under the Act, has to be followed meticulously. Section 50 of the Act is just a safeguard available to an accused against the possibility of false involvement. Thus, communication of this right to the accused has to be clear, unambiguous and to the individual concerned. The purpose of this Section is to make aware the accused of his right, and the whole purpose behind creating this right is effaced if the accused is not able to exercise the same for want of knowledge about its existence. This right cannot be ignored, as the same is of utmost importance to the accused. In the present case, certainly, the provisions of Section 50 of the NDPS Act have not been complied with; therefore, the judgment (supra) is fully applicable to the facts of the present case. 19. In State of Himachal Pradesh vs. Desh Raj & another, 2016 Supp HimLR 3088 (DB) , this Court has relied upon the law laid down in Parmanand's case (supra). 19. In State of Himachal Pradesh vs. Desh Raj & another, 2016 Supp HimLR 3088 (DB) , this Court has relied upon the law laid down in Parmanand's case (supra). Relevant paras of the judgment of this Court are extracted hereunder: "18. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for the third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. ......" Again, in the present set of facts and circumstances, the judgment (supra) is fully applicable to the present case, as the right provided under Section 50 of the NDPS Act in no way can be diluted, and its compliance is mandatory in nature." Therefore, the combined effect of the law laid down by the Hon'ble Apex Court, as applied to the facts of the case in hand, is that non- compliance to the mandatory provisions of Section 50 of the Act has vitiated the proceedings related to search and recovery. Point is, therefore, answered in favour of appellant.” 18. This position was reiterated in Dayalu Kashyap v. State of Chhattisgarh, (2022) 12 SCC 398 : 2022 SCC OnLine SC 334, wherein it was observed at page 400: “4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563], more specifically, SCC para 19. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563], more specifically, SCC para 19. The judgment, in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned, not being part of the statute, the same could not have been offered to the appellant, and thus, the recovery from him is vitiated.” 19. A similar view was taken in Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262: AIR 2023 SC 5164, wherein it was observed: “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 a search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told whether he would like to be searched before a police officer or a Gazetted Officer, or a Magistrate? 28. This Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , held that it is improper for a police officer to tell the accused that a third alternative is also available, i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50….. 29. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50….. 29. Thus, from the oral evidence on the record as discussed above, it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police officer.” 20. It was further held in Ranjan Kumar Chadha (supra) that the investigating officer should give an option to the accused to be searched before the Magistrate or the Gazetted Officer; the accused can decline to avail of such option, and the investigating officer can search the accused himself. It was observed: “62. Section 50 of the NDPS Act only goes so far as to prescribe an obligation to the police officer to inform the suspect of his right to have his search conducted either in the presence of a Gazetted Officer or Magistrate. Whether or not the search should be conducted in the presence of a Gazetted Officer or Magistrate ultimately depends on the exercise of such right as provided under Section 50. In the event the suspect declines this right, there is no further obligation to have his search conducted in the presence of a Gazetted Officer or Magistrate, and in such a situation, the empowered police officer can proceed to conduct the search of the person himself. To read Section 50 otherwise would render the very purpose of informing the suspect of his right a redundant exercise. We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate. 63. 63. A plain reading of the extracted paragraphs of Arif Khan (supra) referred to above would indicate that this Court while following the ratio of the decision of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) held that the same has settled the position of law in this behalf to the effect that, whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires strict compliance; this Court simultaneously proceeded to reiterate that in Vijaysinh Chandubha Jadeja (supra) “it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act”. 64. There is no requirement to conduct the search of the person suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate if the person proposed to be searched after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires”, as used in Section 50(1) of the NDPS Act, would be rendered otiose if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate despite having expressly waived “such requisition”, as mentioned in the opening sentence of sub-Section (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer for the conduct of the proposed search before a Gazetted Officer or Magistrate only “if he so requires” upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act. 65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. 65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate, and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that “I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with Section 50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer.” This would lend more credence to the compliance of Section 50 of the NDPS Act. In other words, it would impart authenticity, transparency and creditworthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively. 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. (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 it is permissible to convey orally that the suspect has a right to be searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in the presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their rights, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50. (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 the 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, contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although, in such a situation, Section 50 may not be required to be complied for the reason that search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (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.” 21. Pavitar Singh (PW1) stated that the police asked the accused, Charan Jeet, whether he wanted to be searched before the senior officer, but he replied that he wanted to be searched before the police present on the spot. He was not declared hostile by the prosecution, which means that his testimony was accepted as correct. The prosecution's case that the accused was told about his right to be searched before a Magistrate or a Gazetted Officer is not corroborated by him. 22. Pavitar Singh (PW1) stated that the police party had not given any notice to the accused before his search. The police party and the accused person got off the bus and then prepared the documents by sitting on the road side. Memos (Ex. PW1/A and Ex. PW1/B) were prepared on the road. H.C. Ram Lal (PW9) also stated in his cross-examination that the consent memo (Ex. PW1/B) was prepared outside the bus. This corroborates the statement of Pavitar Singh that documents were prepared outside the bus on the road. This shows that the option to be searched before the Magistrate or Gazetted Officer was not given to the accused before the search. 23. Therefore, there was non-compliance with the provisions of Section 50 of the NDPS Act. It was laid down by the Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja vs State of Gujarat (2011) 1 SCC 609 that violation of Section 50 of the NDPS Act is fatal, and the police cannot rely upon the recovery effected in violation of Section 50 of the NDPS Act. It was observed: – “29. …… We have no hesitation to hold that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. It was observed: – “29. …… We have no hesitation to hold that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit articles suspect and vitiate the conviction if the same is recorded only on the basis of recovery of an illicit article from the person of the accused during such search.” 24. This position was reiterated in Arif Khan @ Agha Khan versus State of Uttarakhand AIR 2018 SC 2123 wherein it was observed: - “28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer. Third, it is also an admitted fact that none of the police officials of the raiding party who recovered the contraband “Charas” from him was the Gazetted Officer, nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 29. Though the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party, none of them deposed that the search/recovery was made in the presence of any Magistrate or a Gazetted Officer. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.” 25. Thus, the conclusion of the learned Trial Court that there was sufficient compliance with Section 50 of the NDPS Act is not correct. The prosecution has failed to prove the compliance of Section 50 of the NDPS Act, and it cannot rely upon the recovery effected as a result of a search conducted in violation of Section 50 of the NDPS Act. 26. Pavitar Singh (PW1) stated in his cross-examination that the police party had asked the accused for their personal search, but the accused said that he could not check the police. He admitted that the accused had not searched the police. This part of his testimony makes the prosecution's case highly doubtful that the police had given their search to the accused before his search. 27. The consent memo (Ex.PW1/B) specifically mentions that the Investigating Officer had a reason to believe that the accused possessed narcotics with him; hence, his search was to be conducted. It was laid down by the Hon’ble Division Bench of this Court in State of H.P. Vs. Vikram @ Vicky, 2025:HHC:4601, that when the Investigating Officer had mentioned about the possession of the narcotic by the accused, it was a case of prior information which required compliance with the various provisions of the NDPS Act. It was observed:- “9. It is shocking to note that the Investigating Officer, admittedly, even without conducting a search of the person of the respondent, very well knew that he was carrying the contraband, as is evident from the reading of the consent memo (supra). 10. Therefore, clearly it is a case of prior information and not that of chance recovery, which requires strict compliance with the provisions of the Act.” 28. Learned Trial Court did not advert to these infirmities and relied upon the statements of police officials. 10. Therefore, clearly it is a case of prior information and not that of chance recovery, which requires strict compliance with the provisions of the Act.” 28. Learned Trial Court did not advert to these infirmities and relied upon the statements of police officials. Therefore, the judgment and order passed by the learned Trial Court are not sustainable. 29. In view of the above, the present appeal is allowed and the judgment and order passed by the learned Trial Court are set aside and the accused is acquitted of the charged offence. The accused be released from custody if not required in any other case. The fine amount, if deposited by the accused/appellant, be refunded to him after the expiry of the statutory period of limitation in case no appeal is preferred, and in case of appeal, the same be dealt with as per orders of the Hon’ble Apex Court. 30. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the appellant/accused is directed to furnish his personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 31. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.