Himachal Pradesh High Court
Reserved On: 07.03.2026 vs Tara Chand on 6 April, 2026
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2026:HHC:10184 REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Criminal Appeal No: 406 of 2015
Reserved on: 07.03.2026
Announced on : 06.04.2026
_______________________________________________________________
.
State of Himachal Pradesh
....Appellant
versus
Tara Chand
....Respondent
Coram:
Honble Mr. Justice Vivek Singh Thakur, Judge
of
Honble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting? Yes
For the appellant: rt Mr. P.K. Nadda, Additional Advocate
General.
For the respondent: Mr. Chaman Negi and Ms. Kanta
Thakur, Advocates.
Ranjan Sharma, Judge
State of Himachal Pradesh, being appellant,
has come up in the instant appeal under Section
378 of the Code of Criminal Procedure, assailing the
judgment dated 16.03.2015, passed by Learned Special
Judge (1), Mandi [HP], in Sessions Trial No 48 of
2010, titled as State of Himachal Pradesh versus
Tara Chand, acquitting the Respondent-accused herein,
for the offence under Section 20 of Narcotic Drugs
and Psychotropic Substances Act, 1985 [referred to as
1
Whether reporters of Local Papers may be allowed to see the judgment?
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‘NDPS Act‘ herein], alleging recovery of 450 grams
of Cannabis-Charas from his conscious and exclusive
possession on 29.03.2010 at about 08:10 a.m. at
.
Kupardhar.
PROSECUTION STORY:
2. Factual matrix, of the prosecution story
is, that a police patrolling party headed by PW-9
of
ASI Orender Singh; PW-1 Constable Ashwani Kumar ;
PW-2 HHG Brahma Nand and HHG Baldev had
rt
gone in Government vehicle towards Ghatasni, near
Kupardhar, at about 08:10 a.m. During patrolling
a vehicle, tempo trax, bearing registration No. HP-01 M-
3704, came on the spot, which was full of passengers.
The vehicle was stopped by the police for the
purposes of checking. On seeing the police party,
Respondent-accused who was sitting on the backside
of vehicle became perplexed. On suspicion, Respondent
-accused was directed to alight from the vehicle and
his pant was found bulging out, and the accused
was suspected having some contraband inside his
pant. The police party associated PW-3 Ajay Guleria
and Bhim Chand (owner of temp trax-vehicle) as
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witness to the incident. The consent of the Respondent
-accused for his personal search was obtained vide
Consent memo Ex PW-1/A. The members of the police
.
party afforded their search to the accused vide memo
Ex. PW-1/B and nothing was recovered from the
police party. Thereafter, police conducted the personal
search of the respondent-accused by making him to
of
remove his pant-jeans, when, a packet wrapped with
cello tape was recovered from the areas near the
rt
private parts of body of accused and the same was
found to be containing black substance in the shape
of sticks and after smelling and testing the same
came out to be Charas and thereafter police prepared
Identification Memo of contraband vide Ex PW-1/C
and on weighing, the contraband was found to be
450 grams. The recovered contraband alongwith cello
tape and polythene wrapper was kept in parcel which
was sealed with five seals of impression “H”. The
recovered contraband was taken into possession vide
memo Ex PW-1/E. The photographs clicked vide Ex.
PW-2/A and Ex PW-2/B and NCB form Ex PW-8/D
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was filled in on the spot and facsimile of seal was
obtained on NCB form and separately also.
2(i). The Investigating Officer prepared Rukka
.
Ex. PW-9/A and the same was sent through PW-1-
Constable Ashwani Kumar to PW-8 SHO-SI Sohan
Singh, who recorded FIR ExPW-8/A on 29.03.2010.
The Investigating Officer, PW 9 Orender Singh, prepared
of
Spot Map, Ex PW 9/B and recorded the statements
of witnesses. The respondent-accused was arrested
rt
vide memo ExPW-9/D on 29.03.2010 at 01:30 p.m.
After completing the codal formalities, the case property
was handed over to PW-8 SI Sohan Singh, who
re-sealed the same with three seals of impression
“S” and drew the sample separately and facsimile
was obtained on NCB form also. The case property
was sent to Malkhana and PW-5-HC Prem Singh
made its entry in Malkhana register ExPW-5/A. On
30.03.2010, sealed parcel containing contraband
alongwith other documents, NCB form and sample
seals were sent to Forensic Science Laboratory, Junga
through PW-7-HHC Parma Dev vide Road Certificate
ExPW-5/B and the case property was deposited with
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FSL and after receipt of the report from Chemical
Examiner, Ex. PW-10/B, the recovered contraband was
verified to be Cannabis-Charas. During investigation
.
special report Ex. PW-4/A was delivered to Additional
Superintendent of Police, Mandi, through PW-6 Constable
Hem Raj and PW-4 HHC Sant Ram, who made the
entry of special report in Special Report Register Ex.
of
PW-4/B.
2(ii). With reference to the above incident and based
rt
on the investigation carried out by the investigating
agencies, the Final Police Report-Challan was prepared
by PW-8 SI Sohan Singh, on 13.05.2010 and the
aforesaid challan was submitted to Learned Special
Judge concerned.
2(iii). On 04.12.2012, Learned Special Judge (1),
Mandi [HP] framed the “Charge” against Respondent-
Accused and upon his pleading not guilty, the trial
commenced, in which the prosecution examined ten
witnesses. On closure of prosecution evidence, the
statement of the Respondent-Accused under Section
313 of the Code of Criminal Procedure was recorded
on 14.03.2014, by Learned Special Judge.
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3. Pursuant to the trial conducted by Learned
Special Judge (1), Mandi, the Respondent-accused was
acquitted in terms of the judgment dated 16.03.2015,
.
{referred to as the Impugned Judgement}, with
the finding that prosecution has failed to prove that
the mandate of Section 50 of NDPS Act was complied
with before conducting the personal search of the
of
respondent-accused and due to non-compliance of
Section 50, recovery from the alleged possession
of the accused
rt was vitiated and non-disclosure of
legal right to the accused for personal search either
before a Gazetted officer or a Magistrate as per
Section 50 of NDPS Act was fatal to the case of
the prosecution and since the prosecution has failed
to prove this point, therefore, the Respondent-Accused
was acquitted of the charge framed against him,
under Section 20 of the NDPS Act.
4. CONTENTION OF LEARNED COUNSEL FOR
APPELLANT STATE :
Learned State Counsel has contested the
appeal on the ground that Learned Trial Court had
acquitted the accused by drawing conclusion based
on surmises and conjectures and by appreciating
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the evidence in slip-shod and perfunctory manner ;
and Learned Trial Court had failed to evaluate
the prosecution evidence in its true perspective ;
.
and the reasoning given by Learned Trial Court is
manifestly and unreasonable and unsustainable ; and
material evidence on record has been disregarded by
Learned Trial Court ; with the further plea in Para-6
of
of the grounds of appeal, that as per evidence ofprosecution witnesses, PW-1 [Constable Ashwani Kumar],
PW-8
rt
[SHO-SI Sohan Singh], PW-9 [ASI-IO-OrenderSingh], PW-4 [HHC Sant Ram], PW-5 [HC Prem Singh]
and the exhibited documents establish and even FSL
has corroborated that the recovered contraband was
Cannabis-Charas, therefore, the offence stands proved
against the respondent-accused beyond all reasonable
doubts.
CONTENTION BY LEARNED COUNSEL FOR
RESPONDENT-ACCUSED:
5. Per contra, Learned Counsel for Respondent-
Accused has supported the Impugned Judgment dated
16.03.2015, by reasserting that the alleged contraband
was recovered, upon personal search of the body
of the respondent-accused but the aforesaid personal
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search was conducted, firstly, by not disclosing the
availability of a legal right to the respondent-accused
to have his personal search either before a nearest
.
Gazetted Officer or to the nearest Magistrate, and
secondly, that PW-9-IO Orender Singh had erred in
giving three options to the respondent-accused for
personal search before himself-police or before nearest
of
Gazetted Officer or nearest Magistrate and the third
alternative option so given reveals non-compliance of
rt
Section 50 of the NDPS Act, so as to render alleged
recovery affected upon personal search of the body
of the respondent-accused inadmissible in evidence.
Besides this, it is contented that the testimony of
PWs negates the prosecution story.
6. Heard, Mr. P.K. Nadda, Learned Additional
Advocate General for the Appellant-State and Mr. Chaman
Negi and Ms. Kanta Thakur, Learned Counsel, for the
Respondent-Accused.
7. Before analyzing the rival contentions, this
Court, feels it appropriate to have a recap of the
mandate of law, as to what statutory compliances
are stipulated under Section 50 of the NDPS Act
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before conducting the personal search of the body
of an accused under NDPS and what would be the
effect of its non-compliance, have been spelt out by
.
in the following judgements.
MANDATE OF LAW ON STATUTORY COMPLIANCES
IN SECTION 50 OF NDPS ACT AND EFFECT OF
NON-COMPLIANCE:
7(i). While dealing with the issue as to what
of
are the statutory compliances stipulated in Section50 of NDPS Act and what would be the effect of its
rt
non-compliance has been answered by ConstitutionalBench of the Hon’ble Supreme Court in State of
Punjab versus Baldev Singh, (1999) 6 SCC 172,
by mandating that it is imperative on the Investigation
Officer to disclose the availability of a right to the
accused to be searched before the nearest Gazetted
Officer or nearest Magistrate and the omission of
Investigating Officer to conduct the personal search
before a nearest Gazetted Officer or a Magistrate,
would cause inherent prejudice to an accused and
render the recovery of the illicit article suspect and
vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the
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basis of the possession of illicit article, recoveredduring a search conducted in violation of Section
50 of NDPS Act and the effect of the non-compliance
.
of Section 50 shall render the incriminating material
allegedly recovered as inadmissible in evidence and
the same cannot be relied upon to hold the accused
guilty for being found to be in unlawful possession
of
of any contraband, in the following terms:-
“32. However, the question whether the
rt provisions of Section 50 are mandatory
or directory and if mandatory to what
extent and the consequences of non-
compliance with it does not strictly
speaking arise in the context in which
the protection has been incorporatedin Section 50 for the benefit of the
person intended to be searched. Therefore,
without expressing any opinion as towhether the provisions of Section 50
are mandatory or not, but bearing in
mind the purpose for which the safeguard
has been made, we hold that theprovisions of Section 50 of the Act
implicitly make it imperative and
obligatory and cast a duty on the
Investigating Officer (empowered officer)
to ensure that search of the concerned
person (suspect) is conducted in the
manner prescribed by Section 50, by
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about the existence of his right, that
if he so requires, he shall be searched
before a Gazetted Officer or a Magistrate
and in case he so opts, failure to
conduct his search before a Gazetted.
Officer or a Magistrate, would cause
prejudice to an accused and render the
recovery of the illicit article suspectand vitiate the conviction and sentence
of an accused, where the conviction has
been recorded only on the basis of theof
possession of the illicit article, recovered
during a search conducted in violationrt of the provisions of Section 50 of the
Act. The omission may not vitiate the
trial as such, but because of the inherentprejudice which would be caused to an
accused by the omission to be informed
of the existence of his right, it wouldrender his conviction and sentence
unsustainable. The protection provided
in the section to an accused to beintimated that he has the right to have
his personal search conducted beforea Gazetted Officer or a Magistrate, if
he so requires, is sacrosanct andindefeasible it cannot be disregarded
by the prosecution except at its own
peril.
33. The question whether or not the safeguards
provided in Section 50 were observed
would have, however, to be determined
by the court on the basis of the evidence
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issue, one way or the other, would
be relevant for recording an order of
conviction or acquittal. Without giving
an opportunity to the prosecution to
establish at the trial that the provisions.
of Section 50, and particularly, the
safeguards provided in that section were
complied with, it would not be advisableto cut short a criminal trial.
55. We, therefore, hold that an illicit article
of
seized from the person of an accused,
during search conducted in violation
of the safeguards provided in Section 50
rt of the Act, cannot by itself be used
as admissible evidence of proof of
unlawful possession of the contrabandon the accused. Any other material/
article recovered during that search may,
however, be relied upon by the prosecutionin other/independent proceedings against
an accused notwithstanding the recoveryof that material during an illegal search
and its admissibility would depend uponthe relevancy of that material and the
facts and circumstances of that case.”
7(ii). While dealing with effect of non-compliance
of Section 50 of NDPS Act, the Constitutional Bench
of the Hon’ble Supreme Court in Vijaysinh Chandubha
Jadega versus State of Gujrat (2011) 1 SCC 609,
held that it is mandatory that the accused is made
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aware of existence of right to be searched before
a Gazetted Officer or Magistrate (orally or in writing)
but failure to inform the suspect of such a right
.
would cause prejudice to him an accused and the
non-compliance will render recovery of illicit article
suspect and vitiate the conviction and sentence of an
accused. The safeguards in Section 50 have been
of
introduced so as to check misuse of power and to
prevent innocent persons being implicated by plating
rt
false cases. The obligation of the authorized officer,
including police officer to comply with Section 50
is mandatory and requires strict compliance, so as to
impart authencity, transparency and creditworthiness
to the entire proceedings and to add legitimacy to
the search proceedings, in the following terms :-
24. Although the Constitution Bench did not
decide in absolute terms the question
whether or not Section 50 of the NDPSAct was directory or mandatory yet it
was held that provisions of sub-section
(1) of Section 50 make it imperative
for the empowered officer to “inform”
the person concerned (suspect) about the
existence of his right that if he so
requires, he shall be searched before a
gazetted officer or a Magistrate; failure
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to “inform” the suspect about the
existence of his said right would cause
prejudice to him, and in case he so
opts, failure to conduct his search before
a gazetted officer or a Magistrate, may
.
not vitiate the trial but would render
the recovery of the illicit article suspect
and vitiate the conviction and sentence of
an accused, where the conviction has
been recorded only on the basis of the
possession of the illicit article, recovered
of
from the person during a search conducted
in violation of the provisions of Section
rt 50 of the NDPS Act. The Court also
noted that it was not necessary that
the information required to be given
under Section 50 should be in a
prescribed form or in writing but it
was mandatory that the suspect was
made aware of the existence of his
right to be searched before a gazetted
officer or a Magistrate, if so required
by him. We respectfully concur with
these conclusions. Any other interpretation
of the provision would make the valuable
right conferred on the suspect illusory
and a farce.
29. In view of the foregoing discussion, we
are of the firm opinion that the object
with which right under Section 50(1)
of the NDPS Act, by way of a safeguard,
has been conferred on the suspect, viz.
to check the misuse of power, to avoid
harm to innocent persons and to minimise
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the allegations of planting or foisting
of false cases by the law enforcement
agencies, it would be imperative on the
part of the empowered officer to apprise
the person intended to be searched
.
of his right to be searched before a
gazetted officer or a Magistrate. We
have no hesitation in holding that in
so far as the obligation of the authorised
officer under sub-section (1) of Section
50 of the NDPS Act is concerned,
of
it is mandatory and requires a strict
compliance. Failure to comply with the
rt provision would render the recovery of
the illicit article suspect and vitiate the
conviction if the same is recorded only
on the basis of the recovery of the illicit
article from the person of the accused
during such search. Thereafter, the suspect
may or may not choose to exercise the
right provided to him under the said
provision.
MANDATE OF LAW-GIVING OF THIRD OPTION
FOR PERSONAL SEARCH VITIATES RECOVERY:
8. While dealing with obligation of authorized
person, including police officer “to inform or disclose”
the accused of his right for personal search before
a Gazetted Officer or a Magistrate under Section
50 of the NDPS Act, the Hon’ble Supreme Court in
Suresh and others versus State of Madhya Pradesh,
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(2013) 1 SCC 550, mandated that merely asking anaccused to give his consent for personal search, either
before a police officer or Gazetted Officer or Magistrate
.
does not conforms to the safeguards stipulated under
Section 50 of the Act, and its non-compliance shall
render the recovery of alleged contraband suspect,
which cannot form basis for conviction of an accused,
of
in the following terms:-
“16. The above Panchnama indicates that the
rt appellants were merely asked to give
their consent for search by the police
party and not apprised of their legalright provided under Section 50 of the
NDPS Act to refuse/ to allow the police
party to take their search and opt forbeing searched before the Gazetted officer
or by the Magistrate. In other words, a
reading of the Panchnama makes itclear that the appellants were not apprised
about their right to be searched before
a Gazetted officer or a Magistrate but
consent was sought for their personalsearch. Merely asking them as to
whether they would offer their personal
search to him i.e., the police officer
or to Gazetted officer may not satisfy
the protection afforded under Section
50 of the NDPS Act as interpreted in Baldev
Singh‘s case.
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17. Further a reading of the judgments of
the trial Court and the High Court also
show that in the presence of Panchas,
the SHO merely asked all the three
appellants for their search by him and.
they simply agreed. This is reflected in
the Panchnama. Though in Baldev Singh’s
case, this Court has not expressed anyopinion as to whether the provisions
of Section 50 are mandatory or directory
but “failure to inform” the personof
concerned of his right as emanating from
sub-section (1) of Section 50 may renderrt the recovery of the contraband suspect
and the conviction and sentence of an
accused bad and unsustainable in law.
In Vijaysinh Chandubha Jadeja‘s case
(supra), recently the Constitution Bench
has explained the mandate providedunder sub-section (1) of Section 50 and
concluded that it is mandatory and
requires strict compliance. The Benchalso held that failure to comply with
the provision would render the recoveryof the illicit article suspect and vitiate
the conviction if the same is recordedonly on the basis of the recovery of
the illicit article from the person of
the accused during such search. The
concept of substantial compliance as
noted in Joseph Fernadez and Prabha
Shankar Dubey were not acceptable by
the Constitution Bench in Vijaysinh
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of the language as evident from the
panchnama which we have quoted earlier,
we hold that, in the case on hand,
the search and seizure of the suspect
from the person of the appellants is.
bad and conviction is unsustainable in
law.”
8(i). While upholding the acquittal, where an
offer was made by authorized officer, including a
of
police officer, requiring or asking an accused to be
searched by police officer, in addition to Gazetted officer
or Magistrate, the Hon’ble Supreme Court has held
rt
in State of Rajasthan v. Parmanand and another,
(2014) 5 SCC 345, that the aforesaid offer for personal
search before an Investigating Officer or a police
as a third alternative, defeats the protection granted
for being searched before an independent officer,
which is contrary to Section 50 of NDPS Act, when,
the Statute expressly contemplates personal search by
either of the two expressly named persons i.e. a
Gazetted Officer or a Magistrate only, in the following
terms:-
“16. It is now necessary to examine whether
in this case, Section 50 of the NDPS
Act is breached or not. The police witnesses
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informed that they have a right to be
searched before a nearest Gazetted officer
or a nearest Magistrate or before PW-5
J.S. Negi, the Superintendent. They were
given a written notice. As stated by the.
Constitution Bench in Baldev Singh, it
is not necessary to inform the accused
person, in writing, of his right underSection 50(1) of the NDPS Act. His right
can be orally communicated to him. But,
in this case, there was no individualof
communication of right. A common notice
was given on which only respondentrt No.2-Surajmal is stated to have signed
for himself and for respondent No.1 –
Parmanand. Respondent No.1 Parmananddid not sign.
19. We also notice that PW-10 SI Qureshi
informed the respondents that theycould be searched before the nearest
Magistrate or before a nearest gazetted
officer or before PW-5 J.S. Negi, theSuperintendent, who was a part of
the raiding party. It is the prosecution
case that the respondents informed the
officers that they would like to be searchedbefore PW-5 J.S. Negi by PW-10 SI
Qureshi. This, in our opinion, is again
a breach of Section 50(1) of the NDPS
Act. The idea behind taking an accused
to a nearest Magistrate or a nearest
gazetted officer, if he so requires, is to
give him a chance of being searched
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officer. Therefore, it was improper for
PW-10 SI Qureshi to tell the respondents
that a third alternative was available
and that they could be searched before
PW-5 J.S. Negi, the Superintendent,.
who was part of the raiding party.
PW-5 J.S. Negi cannot be called an
independent officer. We are not expressingany opinion on the question whether
if the respondents had voluntarily expressed
that they wanted to be searched beforeof
PW-5 J.S. Negi, the search would have been
vitiated or not. But PW-10 SI Qureshirt could not have given a third option to
the respondents when Section 50(1) of
the NDPS Act does not provide for itand when such option would frustrate
the provisions of Section 50(1) of the
NDPS Act. On this ground also, in ouropinion, the search conducted by
PW-10 SI Qureshi is vitiated. We have,
therefore, no hesitation in concluding thatbreach of Section 50(1) of the NDPS
Act has vitiated the search. The convictionof the respondents was therefore,
illegal.
8(ii). While dealing with validity of third option-
alternative for personal search of an accused under
NDPS Act, before a police officer, has been answered
by the Hon’ble Supreme Court in negative in Ranjan
Kumar Chadha versus State of Himachal Pradesh,
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2023 SCC Online SC 1262, mandating Section 50of NDPS Act only contemplates for giving option for
being personal search before a Gazetted Officer or a
.
Magistrate and it is improper for police to ask the
accused to exercise the third alternative-option for his
search before a police officer, in the following terms:-
“25. What is pertinent to note in the oral
of
evidence of PW 12 and PW 14
respectively referred to above, is that
the appellant herein was told or
rt rather informed that if he so desired,
he may get himself searched before
the ASI or before the GazettedOfficer or Magistrate. Thus, it is evident
from the oral evidence of both PW 12
and PW 14 that three options weregiven to the appellant herein-first to
be searched before the ASI i.e. Assistant
Sub-Inspector, second, before the GazettedOfficer and third, before any Magistrate.
It is also pertinent to note that the
appellant was not informed in so many
words that it is his right under Section50 of the NDPS Act to seek search before
a Gazetted Officer or Magistrate.
27. We have no hesitation in recording a
finding that Section 50 of the NDPS
Act was not complied with as the
appellant could not have been offered
the third option of search to be
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of the NDPS Act only talks about a
Gazetted Officer or Magistrate. What is
the legal effect if an accused of the
offence under the NDPS Act is being
told, whether he would like to be searched.
before a police officer or a Gazetted
Officer or Magistrate ?
29. Thus, from the oral evidence on record
as discussed above it is evident that
Section 50 of the NDPS Act stoodof
violated for giving a third option of
being searched before a police officer.
49. As to what would be the consequences
rt of a recovery
Section 50, it was observed in
made in violation of
BaldevSingh (supra) that it would have the
effect of rendering such incriminating
material inadmissible in evidence andhence, cannot be relied upon to hold
the accused guilty for being found to
be in unlawful possession of anycontraband. The Court further held that
it would not impede the prosecutionfrom relying upon recovery of any other
incriminating article in any otherindependent proceedings. It was further
held that the burden of proving that the
conditions of Section 50 were complied
with, would lie upon the prosecution to
establish…
51. Thus, the Constitutional Bench in express
terms laid down that although the non-
compliance of Section 50 may not vitiate
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the trial yet would render the recovery
of the contraband doubtful and may
vitiate the conviction of the accused.
The emphasis laid by the Court is on
illicit articles seized from the “person
.
of an accused” during the search conducted
in violation of safeguards provided in
Section 50 of the NDPS Act. In other
words, according to Baldev Singh (supra),
the provisions of Section 50 will come
into play only in the case of personal
of
search of the accused and not of some
baggage like a bag, article or container,
rt etc. which he may be carrying.
66. From the aforesaid discussion, the
requirements envisaged by Section 50
can be summarised as follows:-
(i) Section 50 provides both a right as
well as an obligation. The person about
to be searched has the right to have
his search conducted in the presenceof a Gazetted Officer or Magistrate if
he so desires, and it is the obligationof the police officer to inform such
person of this right before proceedingto search the person of the suspect.
(ii) Where, the person to be searched declines
to exercise this right, the police officer
shall be free to proceed with the search.
However, if the suspect declines to
exercise his right of being searched
before a Gazetted Officer or Magistrate,
the empowered officer should take it
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in writing from the suspect that he
would not like to exercise his right
of being searched before a Gazetted
Officer or Magistrate and he may be
searched by the empowered officer.
.
(iii) Before conducting a search, it must be
communicated in clear terms though it
need not be in writing and is permissible
to convey orally, that the suspect has
a right of being searched by a Gazetted
of
Officer or Magistrate.
(iv) While informing the right, only two
options of either being searched in
rt presence of a Gazetted Officer or Magistrate
must be given, who also must be
independent and in no way connected
to the raiding party.
(v) to (ix) …..not relevant…
(x) Any incriminating contraband, possession
of which is punishable under the NDPS
Act and recovered in violation of Section
50 would be inadmissible and cannot
be relied upon in the trial by the
prosecution, however, it will not vitiate
the trial in respect of the same. Any
other article that has been recovered may
be relied upon in any other independent
proceedings.”
8(iii). The principle of law declared in the case
of Ranjan Kumar Chadha (supra) has been reiterated
by the Hon’ble Supreme Court in State of Himachal
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Pradesh v. Surat Singh [Criminal Appeal No.96
of 2018, decided on 16.03.2026, 2026 SCC Online
SC 376, that the third option for personal search
.
before a Police Officer given in addition to search
before a Gazetted Officer or a Magistrate and this
non-compliance and departure from the provision of
law is contrary to the express mandate of Section
of
50 of the NDPS Act, in the following terms:-
17. The High Court vide its judgement
rt dated 08.10.2015 acquitted the respondent-
accused while observing as under:
17. “The accused was apprehended on
13.03.2013 while carrying a bag. However,
despite that his personal search wascarried out. The police has given option
to the accused either to be personallysearched before the Magistrate or the
Gazetted Police Officer. The accused wasalso given option whether he wanted
to be searched by the I.O. in thepresence 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 consent
obtained from the accused was not in
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conformity with Section 50 of the Act.
It has vitiated the entire trial.
18. The oral testimony of the witnesses clearly
established that the Investigating Officer
.
took a departure from the provisions
of law and on the contrary committed
an act which is clearly contrary to
the provisions of law. It may not be
out of place to state at the cost of
repetition that the testimony of PW-8 re-
of
veals that there was no electronic weighing
scale available in the shop and he was
using only the traditional weighing scale
rt as such the story of prosecution that
an electronic weighing scale was used
for weighing the contraband article charas
falls flat on the face of it and the
version of the prosecution and the story
of the prosecution becomes doubtful and
ultimately unacceptable. The High Court
was also justified in placing reliance
on the judgment of this Court in
State of Rajasthan versus Parmanand
and Anr, in support of the conclusions
drawn by it.
19. Thus, in our opinion, the present
appeal is devoid of merits and
deserves to be dismissed. Accordingly,
the same is hereby dismissed.
8(iv). While dealing with a similar fact-situation,
the acquittal for non-compliance of Section 50 of
NDPS Act was upheld by the Division Bench of this
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Court in State of Himachal Pradesh v. Anil Kumar
alias Rinku [Criminal Appeal No.478 of 2015], decided
on 25.03.2026, in the following terms:-
.
“11. According to PW-2, police had left the
Police Station at 2:20 P.M., whereas
according to PW-9, police party left thePolice Station at about 11:00 A.M. and
reached Hanogi Mata at 12:00 noon.
According to the challan presented inof
the Court as also stated in the ruqua,
on the basis of which FIR has been
registered, it has been stated that
rt respondent was overpowered on the basis
of suspicion of having stolen propertywith him, but at the same time it has
been further stated that area was secluded
and, therefore, independent witness was
not available. Therefore, officials wereassociated as witnesses and after giving
jamatalashi by the police party to thesaid person, consent of respondent was
obtained, as provided under Section 50of NDPS Act and, thereafter, personal
search of the respondent was conducted.
12. In the Court, PW-9 has stated that he
asked the respondent as to whether he
was having some NDPS substance and
therefore, he wanted to search him,
whereupon consent was given by the
respondent and respondent was searched.
18. According to prosecution, contraband was
recovered from the person of the respondent.
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Consent memo depicts that it was stated
to the respondent by PW-9 that he had
a doubt that respondent was having
some narcotic drug, therefore, he intended
to search the respondent and, thereafter,.
respondent was asked to give consent
for search to some Magistrate or Gazetted
Officer by stating that it was the rightof the respondent under NDPS Act.
21. As per consent alleged to be given by
the respondent, it has been stated thatof
respondent had stated that he voluntarily
wanted to give his search to the Investigating
rt Officer.
23. In present case, respondent did not
decline to exercise his right, rather his
consent has been recorded for giving
search to the Investigating Officer.
As per mandate of the Apex Court thatonly two options are to be given to
the respondent and any third option willvitiate the proceedings. In present case,
there is nothing on record in writingthat respondent declined to exercise
his right, rather a third option appearsto have been given, as evident from the
consent alleged to have been recorded
in the consent memo. The memo is
not in consonance with the requirement
envisaged by Section 50 of NDPS Act,
as summarized in Ranjan Kumar
Chaddha‘s case and therefore also, the
trial vitiates.
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25. In view of above discussion, we are
of the considered opinion that respondent
deserves benefit of doubt and we do
not find any ground for interfering in
the judgment of acquittal for the reasons.
stated here-in-above.”
ANALYSIS:
9.
Taking into account the entirety of facts
and circumstances, the evidence on record and the
of
mandate of law, this Court is of the considered view
that the Impugned Judgment dated 16.03.2015 passed
rt
by Learned Special Judge, acquitting the Respondent
-accused, in Sessions Trial No. 48 of 2010, titled
as State of Himachal Pradesh versus Tara Chand,
does not suffer from any infirmity or illegality, for
the following reasons:-
9(i). The prosecution story is, that a police
patrolling party headed by PW-9 ASI Orender Singh;
PW-1 Constable Ashwani Kumar ; PW-2 HHG Brahma
Nand and HHG Baldev had gone in a Government
vehicle towards Ghatasni, near Kupardhar at about
08:10 a.m. During patrolling a vehicle, tempo-trax
bearing registration No. HP-01 M-3704, came on the
spot, which was full of passengers. The vehicle was
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stopped by the police for checking. On seeing thepolice party, Respondent-accused who was sitting on
backside of vehicle became perplexed. On suspicion,
.
Respondent-accused was directed to alight from the
vehicle and his pant was found bulging out, and
the accused was suspected having some contraband
inside his pant. The police party associated PW-3
of
Ajay Guleria and Bhim Chand (owner of temp trax-
vehicle) as witness to the incident. The consent of
rt
the Respondent-accused for his personal search wasobtained vide Consent memo Ex. PW-1/A. The police
conducted the personal search of respondent-accused
by making him to remove his pant-jeans, when, a
packet wrapped with cello tape was recovered from
the areas near the private parts of body of accused
and the same was found to be containing black
substance in the shape of sticks and after smelling
and testing the same came out to be Cannabis-
Charas, and as per the Identification Memo vide
Ex. PW-1/C, and on weighing, the contraband was
found to be 450 grams. After recovery, upon personal
search of the respondent-accused and after completing
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codal formalities, the Investigating Officer preparedRukka Ex. PW-9/A and the FIR Ex. PW-8/A was
registered on 29.03.2010 and respondent-accused was
.
arrested vide arrest memo Ex. PW-9/D on 29.03.2010
at 01:30 p.m.
9(i-a). Perusal of the Consent Memo for personal
search, Ex PW-1/A dated 29-03-2010 establishes that
of
PW-9 [Orender Singh, IO] had given the third option-
alternative to the respondent-accused for his personal
rt
search either before him [Orender Singh, IO] or aGazetted Officer or a Magistrate, in the following terms:-
Translation of Ex PW-1/A
“Police Station Padhar at Drang
Consent memo for personal search:
I, HC Orender Singh, I.O. Police Station, Padhar,
District Mandi, do hereby informs Tar Chand
son of Shri Setu Ram, Caste: Rajput, Village
Graman, Post Office Shilh Badhani, Tehsil Padhar,
District Mandi that you are suspected to be inpossession of psychotropic substance for which
you are liable to be personally search. Accordingly,
you are informed of the right for personal search,
if so desired, by me or other Gazetted Officer or
a Magistrate.
Sd/-
Orender Singh, I.O.
P.S. Padhar dt 29/03/2010
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Red Mark A
I want my personal search
to be done by you-police
Red Mark A
Sd/- (in Hindi)
TARA CHAND
.
Witness Witness
Sd/- (in Hindi) Sd/- (in English)
Bhim Chand Ajay Guleria
S/o Sh Radhe Lal S/o Sh. Inder Singh,
Tehsil Padhar, District Mandi. Village Balakrupi, P.O.
Joginder Nagar, District
Mandi.
of
Witness
Sd/-
Constable Ashwani Kumar
No.165, Police Station,
Padhar, District Mandi.
rt
Seal of Court
EX PW/1/A dated 19.08.2013Court of Special Judge,
Mandi (HP)
Attested
Sd/-
Orender Singh
I.O. P.S. Padhar,
Dt. 29.03.2010″
GIVING THIRD OPTION FOR PERSONAL SEARCH
AND THAT TOO BEFORE RAIDING PARTY RENDERSRECOVERY INADMISSIBLE IN EVIDENCE :
9(i-b). Perusal of Consent Memo, Ex PW-1/A, for
personal search reveals that PW-9 Investigating Officer
[Orender Singh] has given a third option-alternative
to the respondent-accused for personal search before
him, a police officer [PW9-Orender Singh, IO], who
was a member of the raiding party.
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In this backdrop, the personal search of
the respondent-accused, cannot sustain for the
reason, firstly, Section 50 of NDPS Act provides for
.
personal search before either of the “two designated
officers” i.e. before a Gazetted Officer or a Magistrate
and “giving of third option-alternative” for personal
search before a police officer” is not contemplated
of
under Section 50 of the Act. Investigating Officertook a departure from the express provisions of
law and
rt
Investigating Officer had committed anact contrary to the provisions of law; and secondly,
action of Investigating Officer, PW-9 Orender Singh,
in giving an option, Ex PW-1/A, to the accused for
personal search before him, a police officer, who
was a member of raiding party, defeats the protection
granted to accused for personal search before an
independent officer; and thirdly, it is improper for
an Investigating Officer (PW-9) to have even asked
an accused for personal search before third option-
alternative, i.e. before a police officer, who was a
member of raiding party; and fourthly, the action of
Investigating Officer (PW-9) in giving three options-
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alternatives for personal search and that too beforea member of the raiding party, defeats the protection
and safeguards conferred to an accused for personal
.
search before independent designated officers (Gazetted
Officer or Magistrate}, under the Act ; and fifthly,
action of Investigating Officer (PW-9) in giving three
options-alternatives for personal search and that too
of
before a member of the raiding party is contraryto the object and intent of Section 50 of NDPS
rt
Act; and sixthly, perusal of the deposition of PW-9Orender Singh I.O.] establishes that he obtained the
consent of respondent-accused vide memo Ex PW-1/A
regarding his personal search by the police party
present at the spot, as per endorsement in red-circle
marked as A to A on the consent form Ex PW-1/A.
PW-9 [Orender Singh I.O.] has deposed that he gave
three options-alternatives to the respondent-accused for
personal search by him i.e. PW-9-Investigating Officer
or a Gazetted Officer or a Magistrate. Even PW-1 [C,
Ashwani Kumar, a member of raiding party], deposed
that PW-9, {Orender Singh IO} asked for consent
and respondent-accused consented for his personal
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search by police party-IO present on the spot ; andseventhly, compliance of Section 50 is mandatory
and non-adherence of the pre-requisites for personal
.
search mandated under Section 50 of NDPS Act
shall render the incriminating material so recovered
upon personal search of an accused as inadmissible
in evidence and such material cannot be relied upon
of
to hold the accused as guilty, as per the mandateof law declared by the Constitutional Bench of the
rt
Honble Supreme Court in Baldev Singh and VijaySingh Chandubha (supra); and eighthly, action of
giving three options-alternatives for personal search
and/or before a member of raiding party is contrary
to the law declared by the Honble Supreme Court
in cases of Suresh, Parmanand, Ranjan Kumar
Chadha and Surat Singh (supra); and lastly, on
facts of instant case, a perusal of Seizure-Memo,
Ex.PW-1/E, dated 29-03-2010 reveals that the alleged
contraband {Cannabis-Charas, 450 grams} seized upon
personal search (conducted contrary to norms) was
the only contraband and no other contraband existed,
therefore, alleged contraband so recovered {contrary
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to law}, is inadmissible in evidence and the saidrecovery cannot be relied upon against the respondent-
accused to hold him guilty.
.
In this backdrop, Learned Special Judge
has committed no error in acquitting the respondent-
accused of the offence under Section 20 of the NDPS
Act, for non-compliance of Section 50 of the NDPS
of
Act.
FAILURE OF PROSECUTION TO INFORM-DISCLOSE
OF RIGHT FOR PERSONAL SEARCH BEFORE
rt
GAZETTED OFFICER OR MAGISTRATE VITATES
RECOVERY:
10. PW-9 [Orender Singh I.O.] deposed in cross-
examination that he did not apprised the respondent
-accused of his right to be searched before a Gazetted
Officer or Magistrate.
Even, PW-1 [C, Ashwani Kumar, a member
of raiding party], deposed that PW-9, {Orender Singh
IO} asked for consent and the respondent-accused
consented for his personal search by the police party
present on the spot. In cross examination, PW-1 [C,
Ashwani Kumar], has testified that before obtaining
consent of accused, the PW-9 {Orender Singh IO} has
not informed respondent-accused of his legal right
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for his personal search before a Gazetted officer or
a magistrate despite the fact that various Gazetted
Officers and Magistrates were available at Jogindrnagar
.
(nearest place) but no efforts were made by PW-9
{Orender Singh IO} to take the accused to either of
them.
Non-disclosure of right for personal search
of
before any of the “two designated officers” named in
Section 50 of NDPS Act i.e. a “Gazetted Officer or
rt
Magistrate”. Informing or disclosure of such a right
to an accused for personal search before either of
two designated officers is sacrosanct and indefeasible
is imperative. The prosecution cannot disregard to
inform or disclosure the availability of such a right
for personal search before either of two named
designated officers. The omission of the prosecution
to inform or disclose to an accused of such valuable
right, shall certainly deprive an accused of the
resultant protection contemplated under the Act and
shall prejudice an accused. Omission to inform or
disclose such a right is mandatory in terms of the
law declared by the Honble Supreme Court in
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Baldev Singh and Vijay Singh Chandubha (supra).
The alleged recovery effected, upon personal search
conducted illegally, without disclosing such a right
.
cannot sustain and said recovery cannot be used
or relied upon against an accused. Accordingly,
the Impugned Judgement passed by Learned Special
Judge acquitting the respondent-accused herein, does
of
not suffer from any infirmity or illegality.
GLARING INFIRMITIES AND DISCRIPENCIES IN
PROSECUTUION CASE:
rt
11. PW-9 [Orender Singh I.O.] deposed that all
the memos, i.e. Consent memo Ex.PW-1/A with
mark A to A, and the Search memo, Ex PW-1/B, and
Identification memo, Ex.PW-1/C and the seizure memo
Ex. PW-1/E, were prepared in presence of witnesses.
Once PW-1, C Ashwani Kumar, PW-3 Ajay Guleria,
and Bhim Chand were the attesting witness to these
memos then, non-examination of one of the attesting
witness {Bhim Chand}. Even no explanation has been
offered by prosecution for not examining the aforesaid
independent witness, is a glaring infirmity-discrepancy
in the process of seizure. Non-examination of attesting
independent witness and absence of any explanation
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for their non-examination, creates doubt about the
seizure of contraband, in terms of the mandate of
law declared by the Honble Supreme Court in the
.
case of Mohammad Khalid and another versus State
of Telangana (2024) 5 SCC 393 {Para 21} and similar
view has been taken in the case of Nadeem Ahmed
vs State of West Bengal, 2025 SCC Online 1779
of
{Para 28 (d)} rendering the prosecution story incredible.
11(i). Besides this, even the non-examination of
rt
Tula Ram, shopkeeper from whom the police personnel
brought the wights and measure and non-examination
of HHG Baldev, another member of the patrolling party
creates doubt about the entire process.
11(ii). Even deposition of PW-3 [Ajay Guleria, an
independent witness} has deposed that he had not
read the contents of consent memo Ex Pw-1/A and
its encircled portion “A to A” before signing it and
contents of the consent memo and its endorsement
A to A were not read over to him by PW-9 {Orender
Singh, IO}, before obtaining his signatures.
11(iii). Grave discrepancy in time of search and
seizure exists, whereby, PW-2 [C Ashwani Kumar, a
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member of patrolling party], deposed that he started
checking the vehicle at 9.45 am and after 5 minutes
(09.50 am), the vehicle in which accused was travelling
.
reached the spot whereas on the other hand, PW-9
[Orender Singh, IO] deposed in cross examination that
all proceedings i.e. checking of vehicle, search and
seizure were completed between 8.10 to 8.50 am.
of
11(v). Another glaring discrepancy is regarding
Rukka and registration of FIR. It has come on record
rt
that PW-9, Orender Singh, IO stated that he prepared
Rukka, Ex PW-9/A, on 29-03-2010 at 10.15 am whereas
PW-1 [C, Ashwani Kumar], deposed that he brought
the Rukka from Kuferdhar (spot of alleged incident)
at 12.00 noon by taking lift in a private vehicle.
Rukka reveals that the distance from Kupardhar to
Police Station Padhar was 33 Kilometers whereas the
FIR Ex PW-1/8, was registered on 29-03-2010 at 12.05
noon. Factum as how could PW-1, Ashwani Kumar
reached with the Rukka from the spot i.e. Kupardhar
to PS Padhar i.e. to a distance of 33 Kms, within
5 minutes and that too in a hilly terrain creates
doubt about the prosecution story.
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In aforesaid circumstances, the Impugned
judgment dated 16.03.2012 passed by Learned Special
Court, acquitting the Respondent-Accused does not
.
suffer from any perversity and illegality.
DIRECTIONS:
12.
In view of the above discussion and for
the reasons recorded hereinabove, instant appeal is
of
dismissed, in the following terms:
(i) Criminal Appeal No 406 of 2015,
rt titled as State of Himachal Pradesh
versus Tara Chand, is dismissed ;
(ii) Impugned Judgment dated 16.03.2015
passed in Sessions Trial No 48 of
2010 by Learned Special Judge (1)Mandi [HP], is upheld ;
(iii) Acquittal of the respondent-accused
is reiterated.
In the aforesaid terms, the instant appeal
and all pending miscellaneous application(s), if any,
shall accordingly stand disposed of.
(Vivek Singh Thakur)
Judge
(Ranjan Sharma)
Judge
April 06, 2026
[Bhardwaj]
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