Offering Third Search Option Violates S.50 NDPS Act, Leads to Acquittal: Himachal Pradesh HC

HP High Court Acquits Man in Charas Case Citing Fatal Flaw in Section 50 NDPS Act Compliance

Shimla: The Himachal Pradesh High Court has acquitted Charanjit Singh , previously convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, citing critical procedural lapses by the police during his search and the subsequent recovery of charas. Hon’ble Mr Justice Rakesh Kainthla overturned the 2023 conviction by the Special Judge, Sundernagar, emphasizing that strict compliance with Section 50 of the NDPS Act is mandatory and its violation is fatal to the prosecution's case.

Case Background

The case dates back to June 19, 2014, when police, during a nakka (checkpoint) at Naulakha, stopped a bus travelling from Manali to Chandigarh. Charanjit Singh , a passenger, was searched, and police claimed to have recovered 195 grams of charas (cannabis resin) from his pants pocket.

Following the trial, the Special Judge, Sundernagar, convicted Singh under Section 20 of the NDPS Act on April 13, 2023, sentencing him to four years of rigorous imprisonment and a fine of ₹20,000. The trial court found the prosecution witnesses reliable and held that the procedural requirements, including Section 50 of the NDPS Act, were adequately met.

Arguments Before High Court

Appealing the conviction, counsel for Charanjit Singh , Ms. Shikha Chauhan, argued that the trial court erred in its assessment. The primary contentions were:

* Non-compliance with Section 50: The mandatory procedure for informing the accused of his right to be searched before a Gazetted Officer or Magistrate was not properly followed. It was argued that the consent memo itself suggested an impermissible third option (search by police) was offered. Furthermore, the independent witness (PW1, the bus conductor) did not fully support the police version of events regarding the Section 50 procedure.

* Contradictions: Significant contradictions existed in witness testimonies.

* Seal Non-Production: The seal used by the police was allegedly not produced in court, casting doubt on the integrity of the seized sample.

The State, represented by Additional Advocate General Mr. Jitender Sharma, defended the trial court's judgment, asserting that the conviction was based on sound evidence and legal compliance.

High Court's Findings on Section 50 Compliance

Justice Rakesh Kainthla meticulously examined the requirements of Section 50 of the NDPS Act, which governs the search of a person. The court noted that since the recovery was made from the accused's pants pocket, Section 50 was unequivocally applicable, as established in State of H.P. vs. Pawan Kumar (2005) .

The judgment highlighted several critical flaws in the prosecution's case regarding Section 50 compliance:

The 'Third Option' Issue: The consent memo (Ex. PW1/B) recorded that the accused, after being told of his right to be searched before a Magistrate or Gazetted Officer, wrote in Punjabi that he consented to a search by the police. The court observed: > "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... This shows that the accused was given an option to be searched by the police as well, and that is why he opted to be searched by the police."

Impermissibility of Third Option: The court stressed that offering the police as a search option alongside a Magistrate or Gazetted Officer violates Section 50. It cited several Supreme Court precedents:

State of Rajasthan Vs. Parmanand (2014) : Explicitly held that offering a third option frustrates the purpose of Section 50(1), which aims to provide a search before an independent officer.

Pradeep Singh alias Rocky vs State of Himachal Pradesh (2020) : Reaffirmed that giving a third option is contrary to mandatory provisions.

Dayalu Kashyap v. State of Chhattisgarh (2022) and Ranjan Kumar Chadha v. State of H.P. (2023) : Further solidified the position that offering a third option vitiates the search.

Witness Testimony: The testimony of the bus conductor (PW1), who was not declared hostile by the prosecution, contradicted the police version. PW1 stated the police asked the accused if he wanted to be searched before a 'senior officer', and the accused opted for the 'police present on the spot'. This did not align with the specific requirements of Section 50 (Magistrate or Gazetted Officer).

Timing of Consent: Evidence suggested the consent memo and other documents were prepared after the accused had already alighted from the bus, casting doubt on whether the Section 50 rights were communicated before the search commenced.

Legal Precedents and Consequences

The High Court relied heavily on established legal principles regarding Section 50:

Mandatory Nature: Compliance with Section 50(1) (informing the accused of their right) is mandatory and requires strict adherence ( Vijaysinh Chandubha Jadeja vs State of Gujarat (2011) ).

Fatal Consequences of Non-Compliance: Failure to comply renders the recovery of illicit articles suspect and vitiates the conviction if based solely on such recovery ( Vijaysinh Chandubha Jadeja , Arif Khan @ Agha Khan vs State of Uttarakhand (2018) ).

The court concluded: > "Therefore, there was non-compliance with the provisions of Section 50 of the NDPS Act... The prosecution has failed to prove the compliance of Section 50 of the NDPS Act, and it cannot rely upon the recovery effected as a result of a search conducted in violation of Section 50 of the NDPS Act."

The court also noted other minor inconsistencies, such as doubts raised by PW1's testimony regarding the police offering their personal search to the accused before searching him.

Final Verdict

Finding the non-compliance with the mandatory provisions of Section 50 of the NDPS Act to be a fatal flaw, the Himachal Pradesh High Court allowed the appeal. The judgment and order of the trial court were set aside, and Charanjit Singh was acquitted of the charges.

The court directed his release from custody if not required in any other case and ordered the refund of any fine paid. As per Section 437-A of the CrPC, Singh was directed to furnish a personal bond to ensure his appearance before the Supreme Court if required.