NON-REPORTABLE

2026 INSC 240 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 96 OF 2018 THE STATE OF HIMACHAL PRADESH ……….Appellant VERSUS SURAT SINGH ………Respondent

JUDGMENT

PRASANNA B. VARALE, J.

1. The present criminal appeal arises out of a judgement and order dated 08.10.2015 passed by High Court of Himachal Pradesh vide Cr. Appeal No. 155 of 2015 wherein the judgment of conviction and sentence to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/-, rendered by the learned Special Judge-I, Shimla, H.P, in Sessions trial No. 21-S/7 of 2013, dated 31.12.2014 was set aside. The prosecution has failed to Signature Not Verified N D E at H e A : 2 G 02 Up6 P .0 T 3 Ar.16ove the case against the accused for the commission of offence Reason:

under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after ND & PS Act). Accused was acquitted of the charges framed against him.

BRIEF FACTS

2. The factual matrix of the case is that on 13.3.2013, police party headed by SHO Daya Ram consisting of ASI Raj Kumar and others was present during Nakabandi at place Pandranu from 4:00 am to 6:00 am. The police party while coming back in vehicle No. HP-07A-0839 reached near Dhangu Dhank. The accused was found coming downward carrying red-gray coloured bag pack. On seeing the police party, the accused became perplexed and tried to run away. On suspicion, accused was apprehended by the police party. The consent was taken vide consent memo Ext. PW-1 /A. The police official has given the personal search vide memo Ext. PW-1/B. On search of the bag of accused, one plastic bag was found containing charas in the form of balls and sticks. The charas weighed 11 kg 50 grams.

3. The charas Ext. P-4 was repacked in the same bag and sealed with three seals of "H'' in parcel Ext. P-1 in the presence of witnesses and taken into possession vide memo Ext. PW-1/D. Sample of seal "H" was also taken on a piece of cloth vide Ext. PW- 1/C. Rukka Ext. PW-11/A was prepared on the basis of which FIR Ext. PW-7 /D was recorded. Investigating Officer sent the rukka and sealed parcel containing charas through Head Constable Babu Lal who deposited it in the malkhana and corresponding entry was taken in the register. The abstract of malkhana register is Ext. PW- 7 /A. The Investigating Officer prepared NCB form in triplicate vide Ext. PW-1/E. The case property was sent to FSL Junga vide RC No. 4. On completion of the investigation, the chargesheet was submitted in the competent court.

4. The prosecution, in order to prove its case, has examined as many as 11 witnesses. The statement of accused under Section 313 of Criminal Procedure Code, 1973 (hereinafter ‘Cr.P.C.’) was recorded. The accused has denied the prosecution case. According to him, he was falsely implicated. The accused claimed trial. The learned Trial Court on appreciation of evidences on record, convicted and sentenced the accused, as noticed herein above.

5. Being aggrieved by the judgment of Trial Court, the accused preferred an appeal before the High Court. The Hon’ble High Court of Himachal Pradesh after considering the material and on hearing the submissions advanced by the respective parties allowed the appeal by setting aside the judgment of Trial Court. The High Court observed that the accused was apprehended on 13.3.2013 while carrying a bag. However, despite that his personal search was carried out. The police had 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 Investigating Officer 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 cons