Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIMACHAL PRADESH HIGH COURT
Vivek Singh Thakur and Sushil Kukreja, JJ.
State of Himachal Pradesh – Appellant
versus
Soni and Anr. – Respondents
Cr. Appeal No.4144 of 2013
Decided on 23.9.2025

Advocates:
Counsel for the Parties:
For the Appellant:Mr. J.S. Guleria, Deputy Advocate General.
For the Respondents No.1:Mr. Arvind Sharma, Advocate, as Legal Aid Counsel
For the Respondent No.2:Ms. Aashima Premy, Advocate, as Legal Aid Counsel

IMPORTANT POINTS
(1) Appeal against acquittal – If two reasonable views are possible on the basis of evidence on record, Appellate Court should not disturb finding of acquittal recorded by trial Court.
(2) Seizure of Charas – Consent taken from multiple accused persons by way of a joint consent memo do not meet requirement of Section 50 of NDPS Act.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 378 – Appeal against acquittal – Appellate Court has full power to review, re-appreciate and reconsider evidence upon which order of acquittal is founded – However, in case of acquittal there is double presumption in favour of accused – In exceptional cases where there are compelling circumstances, and judgment under appeal is found to be perverse, appellate court can interfere with order of acquittal – If two reasonable views are possible on the basis of evidence on record, Appellate Court should not disturb finding of acquittal recorded by trial Court. (Para 10)
(B) Drugs and Psychotropic Substances Act, 1985 – Sections 20 and 50 – Criminal Procedure Code, 1973 – Section 378 – Seizure of Charas – Appeal against acquittal – Both accused persons have been acquitted by trial court on the ground that since no percentage of Tetrahydrocannabinol has been mentioned in SFSL report, in such circumstances, substance recovered cannot be said to be Charas – Accused must be individually informed that under Section 50(1) of NDPS Act, he has right to be searched before a nearest Gazetted Officer or before a nearest Magistrate – Consent taken from multiple accused persons by way of a joint consent memo do not meet requirement of Section 50 of NDPS Act, as in view of stringent provisions of NDPS Act, each of accused has right to be informed separately about his right to be searched either before a Magistrate or a Gazetted Officer – Informing right available under NDPS Act jointly to both accused persons is a clear violation of Section 50 of NDPS Act – Informing right available under NDPS Act jointly to accused persons is clear violation of Section 50 of NDPS Act – Prosecution has failed to prove its case against accused persons beyond reasonable doubt – Judgment of acquittal affirmed. (Paras 14, 18, 22, 24, 25 and 26)
Result: Acquittal Appeal dismissed.

JUDGMENT

Sushil Kukreja, J.—The present appeal has been preferred by the appellant- State under Section 378 of the Code of Criminal Procedure (Cr.PC) against the judgment of acquittal dated 30.04.2013 passed by the learned Special Judge, Chamba, District Chamba, HP, in Sessions Trial No.49/12, whereby the accused persons (respondents herein) were acquitted of the offences punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the ‘NDPS Act’).

2. Facts of the case, in brief, giving rise to instant appeal as per the prosecution story, are that on 08.05.2012, a police party headed by HC Devanand, while on patrolling duty towards Kapahdi Mod- Madhuwad- Seri-Kalhel, noticed two persons at around 2:40 AM, near Zero Point Jassourgarh, who were sitting on the left side of the high way and on seeing police, they tried to run away, but both of them were apprehended by the police. On suspicion, HC Devanand inquired their credentials, upon which, one of them disclosed his name as Soni (accused/respondent No.1 herein) and another as Ajay Kumar (accused/ respondent No.2 herein). As the aforesaid place was secluded and there was no habitation in the nearby, therefore, no independent witness was available and, as such, SPO Sanjeev Kumar and Constable Som Parkash were associated as witnesses. Thereafter, HC Devanand gave option to the accused persons as to whether they wanted to give their personal search to a Gazetted Officer or a Magistrate, however, both of them had given their consent in their own writing to be searched by the police party present on the spot. Then the police personnel gave their personal search to them, but nothing incriminating was found and after that, personal search of accused persons was carried out by HC Devanand and during personal search of accused Soni (respondent No.1), one cream coloured bag was found underneath his clothes tied with belly. On opening the said bag, a black coloured hard substance in the shape of slides was found, which on the basis of smelling as well as experience, was found to be charas and after weighing, charas was found to be 600 grams. Thereafter, charas was again put in the same bag, which was sealed in a cloth parcel with five seals of seal impression ‘W’. Thereafter, during personal search of accused Ajay (respondent No.2), one red coloured bag was found underneath his vest and on opening the said bag, a black coloured hard substance was found, which was also charas and after weightment, it was found to be 400 grams. The recovered charas was put in the same red coloured bag, which was also sealed in a cloth parcel with five seals of impressions of seal ‘W’. Sample of seal impression ‘W’ was separately taken on a piece of cloth and thereafter, the police completed other codal formalities and arrested both the accused persons.

3. On completion of the investigation and after receipt of SFSL report, the charge-sheet was prepared and presented before the learned Trial Court.

4. The learned trial Court, vide order dated 12.09.2012 framed charges against the accused persons under Section 20 of NDPS Act, to which they did not plead guilty and claimed trial.

5. The prosecution, in order to prove its case, examined eleven witnesses. Statements of accused persons under Sections 313, Cr.PC were recorded, wherein they denied all set of incriminating evidence led by the prosecution against them, besides pleaded to be innocent and that they were falsely implicated in the case. However, they did not examine any witness in their defence.

6. The learned Trial Court, vide impugned judgment dated 30.04.2013, acquitted both the accused persons of the charges under Section 20 of the NDPS Act, hence, the instant appeal preferred by the appellant-State.

7. The learned Deputy Advocate General contended that the trial Court has appreciated the evidence on record in a slip-shod and perfunctory manner and acquitted the accused persons on flimsy grounds. He further contended