Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1501

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Dharmender Kumar @ Govinda - Appellant
Versus
State of H.P - Respondent
Cr. Appeal No. 497 of 2024
Decided On : 18-11-2025

Advocates Appeared:
For the Appellant :Mr Lovneesh Singh Thakur, Advocate.
For the Respondent:Mr Ajit Sharma, Deputy Advocate General.

Offering third option of police search under Section 50 NDPS Act, alongside Magistrate or Gazetted Officer, vitiates recovery from clothing; combined with procedural doubts and contradictions, mandates acquittal.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 50 - Search of person - Recovery from pants pocket, part of clothing covering body, triggers mandatory compliance with Section 50 - Accused must be informed of right to be searched before Magistrate or Gazetted Officer - Giving third option to be searched by police impermissible and vitiates search/recovery - Mention of specific section in pre-search consent memo, before registration of case, renders procedure doubtful - Violation fatal, rendering conviction unsustainable. (Paras 13-28)

(B) Evidence - Official witnesses - Minor contradictions normally ignorable due to time lapse, but assume significance when one independent witness turns hostile and search procedure suspect - Requires cautious scrutiny. (Paras 29-33)

Facts of the case:
Police party on duty near dhaba at 8:30 pm apprehended accused on suspicion after he turned back upon seeing them. Informed of search options including by police, personal search yielded 5.50 grams substance testing positive for heroin from left pants pocket. Sealed, investigated, trial court convicted under Section 21 and sentenced to 4 years RI and fine; appeal challenging non-compliance with Section 50, contradictions and hostile witness.

Findings of Court:
Provisions of Section 50 not complied with due to third option and suspicious consent memo; contradictions material in context; integrity of recovery not proved.

Issues: Whether recovery from clothing required Section 50 compliance; validity of third search option; effect of contradictions and hostile independent witness on prosecution case.

Ratio Decidendi: Search from clothing necessitates strict Section 50 adherence; third option frustrates purpose of independent search, making recovery inadmissible; accused cannot opt for police search unless explicitly informed only of statutory options and waives in prescribed manner; pre-FIR mention of offence section in memo indicates post-search fabrication; combined procedural lapses entitle accused to acquittal.

Result: Appeal allowed; conviction and sentence set aside; accused acquitted.

Table of Content
1. police recovery of 5.5g heroin from pocket. (Para 1 , 2)
2. trial convicted accused despite one hostile witness. (Para 4 , 5 , 6 , 7)
3. arguments center on section 50 ndps compliance. (Para 8 , 9 , 10 , 11 , 12)
4. section 50 applies to body clothing searches. (Para 13 , 14)
5. officer must inform right to magistrate/gazetted search. (Para 15 , 16)
6. third option of police search improperly offered. (Para 17 , 18 , 23)
7. third option vitiates section 50 compliance. (Para 19 , 20 , 21 , 22 , 24 , 25)
8. pre-search memo mentioning sections creates doubt. (Para 26 , 27 , 28)
9. contradictions and hostile witness undermine case. (Para 29 , 30 , 31 , 32)
10. section 50 violation warrants accused acquittal. (Para 33 , 34 , 36 , 37)

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment of conviction and order of sentence dated 28.06.2024, passed by learned Special Judge, Nurpur, District Kangra (learned Trial Court), vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substance (ND&PS) Act and was sentenced to undergo rigorous imprisonment for four years, pay a fine of Rs. 20,000/- and in default of payment of fine to further undergo simple 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 before the learned Trial Court against the accused for the commission of an offence punishable under Section 21 of the NDPS Act. It was asserted that HC Govind Singh (PW13), HHC Shashi Pal (PW12), HHC Rattan Chand (PW14) and Constable Manod Kumar (PW11) were present near Anapurna Dhaba on 15.09.2016 at 8:30 pm. The accused came from the opposite side. He saw the police and returned. The police became suspicious and apprehended him. He revealed his name as Dharmender Kumar @ Govinda (the present accused). HC Govind Singh (PW13) issued a Hukamnama (Ext.PW1/E) to HASI Govind Singh (PW13) and directed him to bring independent witnesses. He brought Tilak Raj (PW1) and Harsimran Singh (PW7). HC Govind Singh gave an option to the accused to be searched in the presence of a Magistrate or Gazetted Officer. The accused opted to be searched by the police vide memo (Ext.PW1/D). The police party gave their search to the accused, and nothing incriminating was found in their possession. Memo (Ext.PW1/C) was prepared. HC Govind Singh (PW13) searched the accused and recovered one polythene envelope (Ext.P3) from the left pocket of the pants worn by the accused. He checked the polythene envelope and recovered a light brown substance, which was checked with the help of a drug detection kit and was found to be heroin (Ext.P4). HC Govind Singh (PW13) weighed the heroin and found its weight to be 5.50 grams. He put the heroin in the same envelope from which it was recovered. The envelope was put into the matchbox (Ext.P2). The matchbox was put in a cloth parcel (Ext.P1) and the parcel was sealed with three impressions of seal ‘OT’. Sample seal ‘OT’ was taken on a separate piece of cloth (Ext.PW1/B) and NCB-1 Form (Ext.PW13/A). The seal was handed over to witness Harsimran Singh (PW7) after its use. The heroin was seized vide memo (Ext.PW1/A). HC Shashi Pal (PW12) took the photographs (Ext.PW6/A) of the proceedings. HC Govind Singh (PW13) prepared a rukka (Ext.PW11/A) and handed it over to Constable Manod Kumar (PW11) with the direction to carry it to the Police Station.

3. Constable Manod Kumar (PW11) handed over the rukka to HC Santosh Kumar (PW5), who registered the FIR (Ext.PW5/A) and handed over the case file to Constable Manod Kumar (PW11) with the direction to carry it to the spot. HC Govind Singh (PW13) investigated the matter. He prepared the site plan