NDPS Act: Offering Police Search as Third Option Violates S.50, Invalidates Recovery: Himachal Pradesh High Court - 2025-04-07

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Himachal Pradesh High Court Upholds Acquittal in NDPS Case, Citing Violation of Search Procedure

Shimla, March 1, 2025 – The Himachal Pradesh High Court has dismissed a state appeal, upholding the acquittal of an accused in a case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The bench, comprising Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Rakesh Kainthla , ruled that offering a 'third option' to the accused—to be searched by police personnel in addition to the statutory options of search before a Magistrate or Gazetted Officer—constitutes a violation of Section 50 of the NDPS Act and invalidates the subsequent recovery.

Case Overview

The State of Himachal Pradesh had appealed against a Trial Court judgment acquitting Jai Kishan of charges under Section 21 of the NDPS Act, which pertains to offenses involving manufactured drugs and preparations. The prosecution's case rested on the alleged recovery of 9.29 grams of MDMA from Jai Kishan during a police patrol in May 2012.

The Trial Court acquitted the accused citing contradictions in the testimonies of police witnesses, discrepancies regarding the recovered contraband, doubts over the integrity of the case property, and crucially, non-compliance with Section 50 of the NDPS Act, which mandates specific procedures for personal searches under the Act.

Arguments on Appeal

The State, represented by Senior Additional Advocate General Mr. I.N. Mehta , argued that the Trial Court erred in its assessment. The State contended that minor contradictions were inevitable given the time lapse between the incident and witness testimonies. Furthermore, it was argued that since the accused consented to be searched by the police, there was no mandatory requirement to take him before a Magistrate or Gazetted Officer. The State asserted that the Trial Court adopted an unrealistic approach in evaluating the prosecution evidence and overlooked the absence of any apparent animosity between the police and the accused.

Representing the respondent, Advocate Mr. Naveen K. Bhardwaj, defended the Trial Court's judgment, asserting that it was based on a reasonable view of the evidence. He emphasized that an appellate court should be hesitant to overturn an acquittal unless there is clear perversity or illegality in the Trial Court’s findings.

High Court's Reasoning: Flaws in Search Procedure and Evidence

The High Court, after reviewing the evidence and submissions, sided with the Trial Court, emphasizing the stringent requirements of Section 50 of the NDPS Act. The judgment highlighted that the police informed the accused of his right to be searched before a Magistrate or Gazetted Officer, but also improperly presented a 'third option' – search by the police party itself.

The court cited the Supreme Court's ruling in State of Rajasthan Vs. Parmanand & another (2014) 5 SCC 345 , which clearly states that Section 50(1) of the NDPS Act provides only two options for search – before a Magistrate or a Gazetted Officer – and does not include a third option of being searched by the police. The Himachal Pradesh High Court in Pradeep Singh alias Rocky vs State of Himachal Pradesh , 2020(1) Him. L.R. 133 had previously echoed this principle, holding that offering a third option is "fatal" to the prosecution case.

> "If no option to be searched by the police was given to the accused he could not have opted to be searched by the police. He could have declined to be searched by the Magistrate or the Gazetted Officer but without being informed that he could be searched before the Police, he could not have mentioned specifically that he wanted to be searched before the police." - Himachal Pradesh High Court Judgment, Cr. Appeal No. 126 of 2015

The Court also pointed to discrepancies in the prosecution's evidence regarding the number of polythene packets recovered and inconsistencies in witness testimonies concerning the handling of the seals and recovered items. These inconsistencies further cast doubt on the integrity of the case property and the reliability of the prosecution's narrative.

Upholding the Principles of Appeal Against Acquittal

The High Court reiterated the established principles governing appeals against acquittal, citing precedents like Mallappa v. State of Karnataka, (2024) 3 SCC 544 and Chandrappa v. State of Karnataka, (2007) 4 SCC 415 . These judgments emphasize that a High Court should not lightly overturn an acquittal unless the Trial Court's view is perverse or illegal. The High Court found that the Trial Court had taken a "reasonable view" based on the evidence and that interference was not warranted.

Conclusion and Implications

Ultimately, the Himachal Pradesh High Court dismissed the State's appeal, thereby upholding the acquittal of Jai Kishan . The judgment underscores the critical importance of strict adherence to the procedural safeguards enshrined in Section 50 of the NDPS Act during personal searches. Offering unauthorized options dilutes these safeguards and can be grounds for invalidating the recovery of contraband. This ruling reinforces the judiciary's commitment to protecting the rights of the accused under the NDPS Act and highlights the high threshold for overturning judgments of acquittal in criminal appeals.

The accused is directed to furnish a personal bond and surety as per Section 437-A of the Code of Criminal Procedure, ensuring his availability should the State choose to appeal further to the Supreme Court.