Joint Consent Memo for Personal Search Under S.50 NDPS Act Vitiates Recovery: Himachal Pradesh High Court Upholds Acquittal - 2025-09-29

HP High Court Upholds Acquittal in NDPS Case, Cites Procedural Lapse in Personal Search

Shimla, HP - The High Court of Himachal Pradesh has upheld the acquittal of two individuals, Soni and Ajay Kumar, in a narcotics case, reinforcing a critical procedural safeguard under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. A Division Bench comprising Justice Vivek Singh Thakur and Justice Sushil Kukreja ruled that obtaining a joint consent memo for a personal search from multiple accused persons is a fatal flaw that vitiates the recovery of contraband.

The Court dismissed the State's appeal against a 2013 trial court judgment, holding that the mandatory requirement of individually informing each accused of their right to be searched before a Gazetted Officer or a Magistrate under Section 50 of the NDPS Act was not met.

Background of the Case

The prosecution's case dates back to May 8, 2012, when a police patrol apprehended Soni and Ajay Kumar at Zero Point Jassourgarh at approximately 2:40 AM. A personal search led to the recovery of 600 grams of charas from Soni and 400 grams from Ajay Kumar. Both were charged under Section 20 of the NDPS Act.

On April 30, 2013, the Special Judge in Chamba acquitted both accused. The trial court's decision was based on the State Forensic Science Laboratory (SFSL) report, which did not specify the percentage of tetrahydrocannabinol (THC) in the seized substance. The trial court relied on the precedent set in Sunil Vs. State of HP , which held that without this quantification, the substance could not be conclusively identified as charas.

The State of Himachal Pradesh challenged this acquittal, leading to the present appeal before the High Court.

Key Arguments in the High Court

• State's Position (Appellant): The Deputy Advocate General argued that the trial court's acquittal was based on "flimsy grounds" and that it had appreciated evidence in a "slip-shod and perfunctory manner." The State contended that the trial court erred in discarding witness testimonies and that its reliance on the SFSL report was misplaced, especially since the Sunil case had been overruled.

• Accused's Position (Respondents): The counsel for the respondents argued that the entire search and seizure process was vitiated due to a clear violation of Section 50 of the NDPS Act. They pointed out that the investigating officer had obtained consent from both accused on a single, joint consent memo (Ext. PW-1/B). This, they argued, does not satisfy the legal requirement of communicating the right to each accused individually.

Court's Analysis: Overruling the Trial Court's Reasoning but Upholding Acquittal on New Grounds

The High Court first addressed the trial court's original reason for acquittal. The Bench noted that the Sunil case, which formed the basis of the trial court's decision, had indeed been overruled by a larger Bench in State of HP Vs. Mehboob Khan . Therefore, the absence of THC percentage in the SFSL report was not a valid ground for acquittal.

However, the Court then turned its attention to the respondents' central argument regarding the violation of Section 50 of the NDPS Act. The Bench found this argument compelling and decisive.

"A joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose... The communication of this right has to be clear, unambiguous and individual," the Court observed, citing the Supreme Court's landmark ruling in State of Rajasthan Vs. Parmanand (2014) .

The Bench further relied on the recent Supreme Court judgment in Ranjan Kumar Chadha Vs. State of Himachal Pradesh (2023) , which reiterated that in cases involving multiple suspects, each person must be individually informed of their rights, and any joint communication would be a violation of Section 50.

Applying this principle to the facts, the Court concluded:

"To this effect a joint consent memo Ext. PW1/B was prepared, which was signed by both the accused persons as such the said lapse committed by the Investigation Officer amounts to violation of mandatory requirement... Therefore, in view of the aforesaid judgments of the Hon’ble Supreme Court, informing the right available under NDPS Act jointly to both the accused persons is a clear violation of Section 50 of NDPS Act."

Final Verdict and Implications

The High Court dismissed the State's appeal, affirming the acquittal of Soni and Ajay Kumar. Crucially, the acquittal was upheld not for the reasons cited by the trial court, but due to the investigating agency's failure to comply with the stringent procedural safeguards enshrined in Section 50 of the NDPS Act.

The judgment serves as a strong reminder to law enforcement agencies about the necessity of meticulous adherence to prescribed procedures in narcotics cases, where the potential for severe punishment is high. It underscores that procedural integrity, particularly the individual communication of rights, is non-negotiable and any deviation can prove fatal to the prosecution's case.