Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1662

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIVEK SINGH THAKUR, ROMESH VERMA, JJ.
State of H.P - Appellant
Versus
Suresh Kumar @ Kalu - Respondent
Cr. Appeal No. 286 of 2015
Decided On : 22-11-2025

Advocates Appeared:
For the Appellant:Mr. I.N. Mehta, Sr. Additional Advocate General
For the Respondent:Mr. Naresh K. Sharma, Advocate, vice Mr. S.K. Acharya, Advocate

Acquittal under NDPS Act upheld in appeal due to Section 50 non-compliance (invalid third option, improper waiver), witness inconsistencies, lack of independent witnesses on busy highway, and plausible trial court view not perverse.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20 and 50 - Appeal against acquittal - Recovery of 900 grams contraband from knee cap during personal search after suspect fled on seeing police party - No independent witnesses despite busy national highway - Inconsistencies in official witnesses regarding document preparation, seal custody - Pre-mention of FIR number in consent memo indicating ante-dating - Non-compliance with Section 50 as third option to be searched by police given and waiver not in prescribed format - Trial Court acquitted holding prosecution story improbable; High Court upheld as view possible, not perverse. (Paras 23-47)

(B) Criminal Procedure Code, 1973 - Section 378 - Scope of appeal against acquittal - Limited interference unless findings perverse, based on no evidence or only one possible view of guilt - Double presumption of innocence reinforced by acquittal - Appellate Court cannot substitute its view merely if another possible. (Paras 40-47)

(C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Strict compliance mandatory - Inform only of right to search before Magistrate or Gazetted Officer - No third option of police; if waived, must be reduced to specific writing declaring awareness and voluntary waiver to be searched by empowered officer - Non-compliance renders recovery inadmissible. (Paras 31-38)

Facts of the case:
Police party on patrol apprehended fleeing person on secluded stretch of busy highway, recovered contraband from knee cap after obtaining consent for search by police despite informing of Magistrate/Gazetted Officer option - No independent witnesses joined despite efforts - Two cases registered same day with overlapping personnel and timelines - Trial Court acquitted due to infirmities; State appealed.

Findings of Court:
Prosecution failed to prove case beyond reasonable doubt owing to material inconsistencies, procedural lapses including Section 50 violation, improbable lack of witnesses, doubtful timelines with simultaneous case - Acquittal judgment reasoned and plausible.

Issues: Whether compliance with Section 50 achieved despite third option and inadequate waiver; credibility of official witnesses amid contradictions on seal, documents, custody; justification for no independent witnesses on busy road; scope of interference in acquittal appeal.

Ratio Decidendi: Acquittal sustainable if plausible view from evidence; here, prosecution version demolished by glaring inconsistencies (e.g., who wrote memos, held seal), Section 50 breached by invalid option/waiver, no independent corroboration despite opportunities, logistical impossibilities with dual cases - Appeals against acquittal warrant interference only on perversity, absent here.

Result: Appeal dismissed; acquittal upheld.

Table of Content
1. appeal against ndps acquittal background (Para 1 , 2 , 3 , 4 , 5 , 6)
2. counsel arguments on perversity (Para 7 , 8 , 9)
3. witness testimonies on recovery procedures (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22)
4. inconsistencies in witness statements (Para 23 , 24 , 25 , 26 , 27 , 28)
5. lack of independent witnesses highway (Para 29 , 30)
6. section 50 ndps non-compliance fatal (Para 31 , 33 , 34 , 36 , 37 , 38)
7. timeline conflict parallel fir custody (Para 39)
8. limited interference acquittal appeals (Para 40 , 41)

JUDGMENT :

ROMESH VERMA, J.

The present appeal arises out of the judgment of acquittal as passed by the learned Additional Sessions Judge (II), Mandi, District Mandi, H.P. on 03.01.2015, whereby, respondent has been acquitted of the charges in case FIR No. 128/10 dated 24.04.2010, registered at Police Station Sadar, Mandi, District Mandi, H.P. under Section 20 of Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS Act’).

2. The story, as projected by the prosecution against the respondent, is that on 24.04.2010, ASI Pal Singh alongwith Constable Sanjiv Kumar, Constable Dhameshwar Singh and HHC Amar Singh, left Police Station Sadar, Mandi, in the official vehicle for checking the traffic and detection of cases. At about 8.45 in the morning, one person was coming on foot from Pandoh to Mandi side. On seeing the police party, he started to flee away from the spot and on that the police officials got suspicion that he must be possessing some contraband. The said person was apprehended at about 30 - 35 meters, after chasing him. The area was secluded and no independent witnesses could be associated. Though, the passing vehicles were tried to be stopped to get the witnesses, however, nobody agreed to become a witness in the case. On inquiry, the accused disclosed his name as Suresh Kumar @ Kalu son of Sh. Sube Singh, resident of Village Panchi Jatan, Tehsil Ganaur, District Sonipat, (Haryana). The personal search of the accused was conducted and during search, in his right leg under the knee, a knee cap, brown in colour, having two plastic transparent packets containing contraband black and brown in colour in the shape of ‘Batti’ and ‘ Chapati’ was found. The said contraband was taken out and it was checked and on the basis of experience, it was found to be cannabis (charas). The charas was weighed and it was found to be 900 grams and thereafter put in a cloth and seal “A” was appended on the same. NCB Form in triplicate was filled up at the spot and it was embossed with seal impression”A”. The sample seal was taken on a piece of cloth which is Ext.PW4/C. The seal after its use was handed over to the witness Constable Dhameshwar PW-4. A ruka Ext.PW8/B was drawn and the same was sent to the Police Station through HHC Amar Singh and on the basis of which case FIR No.128/10 Ext.PW9/A was registered at Police Station Sadar, District Mandi.The case property was sent to FSL, Junga for analysis and report of chemical Analyst Ext PX was obtained.

3. On completion of investigation, the police presented the challan against the accused person in the Court for the offence punishable under Section 20 of NDPS Act.

4. During the trial before the learned court below, accused person (respondent herein) was charged for offence punishable under Section 20 of NDPS Act., to which he pleaded not guilty and claimed Trial.

5. In order to substantiate its case, the prosecution has examined nine witnesses in all. Thereafter, respondent was examined under Section 313 of Cr.P.C. He denied all the incriminating material and took the defence that he is innocent and has been falsely implicated in the case. However, respondent did not examine any witness in his defence.

6. The learned trial court, after evaluating the oral as well as documentary evidence, acquitted the respondent, as aforesaid, constraining the appellant-State to file the instant appeal.

7. Mr. I.N. Mehta, learned Senior Additional Advocat