Full Judgment Text
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
Digitally signed by
NEHA GUPTA
Date: 2026.03.16
16:21:30 IST
Reason:
prove the case against the accused for the commission of offence
under Section 20 of the Narcotic Drugs and Psychotropic
1
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
2
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
3
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 consent obtained from the accused was not in
conformity with Section 50 of the Act. The act of Investigating
Officer providing the third option namely, the search of accused in
presence of the Police officer was clearly contrary to the provisions
of the Act and particularly contrary to the provisions of Section 50
of ND & PS Act. Considering this act, the High Court observed that
when the provisions of the Act namely, Section 50 provides only
two options i.e. apprising the provision of the Act, apprising the
accused of his legal right available with two options namely, to be
searched either before the Gazetted Officer or before the Magistrate
and providing the third option by the officer concerned that the
4
search before the police officer being contrary to the provisions of
law vitiated the entire trial.
6. The Hon’ble High Court held that the prosecution has failed
to prove the case against the accused for the commission of offence
under Section 20 of the ND & PS Act. Accordingly, in view of the
analysis and discussion made, the appeal was allowed. Judgment
of conviction and sentence dated 31.12.2014, rendered by the
learned Special Judge-I, Shimla, H.P., in Sessions trial No. 21-S/7
of 2013, was set aside. Accused is acquitted of the charges framed
against him.
7. Aggrieved by the said judgement of the High Court, the
appellant is before us.
CONTENTIONS
8. The Learned Counsel for the State of Himachal Pradesh
vehemently submitted that the reasons given by the Trial Court,
while passing the judgment of conviction are on the basis of
evidence on record and without giving scope for contrary view and
as such the court ought not to have allowed the appeal.
9. Petitioner contended that Hon’ble High Court erred in setting
aside conviction of respondent and not considering the fact that
the said charas was being recovered from the bag of the accused
5
person and that the same was not recovered from the personal
search of accused. Statements of PW-1, PW-2 and PW-3 are in
corroboration that charas weighing 11 kg 50 grams was recovered
from the bag which the accused was carrying and not from the
physical search.
10. It was also contended that there was no prior information
with the Investigating Officers regarding the possession of charas
and that the police party had only proceeded on routine
nakkabandi. Therefore recovery made from the bag of the accused
person was rather a chance recovery. Even on examination under
section 313 Cr.P.C the accused denied that he has been falsely
implicated, but no evidence has been led by him to prove his
innocence. The petitioner relied upon Abdul Rashid Ibrahim
1
Mansuri v. State of Gujarat and State of Punjab v. Makhan
2
Singh .
11. Moreover, the site plans clearly show that the place where the
alleged recovery took place was an isolated one there was no
residential area near to the spot the statement corroborates with
the Investigating Officer-PW 11, as he states that due to the place
being isolated no individual witnesses could be engaged. Also, due
1. (2000) 2 SCC 513
2. (2004) 3 SCC 453
6
to the fact that it was early winter morning it is less likely to spot
individuals at 7 a.m.
12. Per contra, the Ld. Counsel for the respondent contended
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 consent
obtained from the accused was not in conformity with Section 50
of the Act. It has vitiated the entire trial.
13. The counsel for the respondent acknowledged that as per
Section 54 of ND & PS Act, under which “unless and until the
contrary is proved, the accused has committed an offence under
this Act for the possession of which he fails to account
satisfactorily”, there is a reverse burden of proof on the accused.
However, the respondent relied upon para 34 of the Sanjeet
7
Kumar Singh alias Munna Kumar Singh versus State Of
3
Chhattisgarh wherein this court held that-
“It is true that Section 54 of the Act raises a presumption and the burden shifts
on the accused to explain as to how he came into possession of the contraband.
But to raise the presumption under Section 54 of the Act, it must first be
established that a recovery was made from the accused. The moment a doubt is
cast upon the most fundamental aspect, namely, the search and seizure, the
appellant, in our considered opinion will also be entitled to the same benefit as
given by the Special Court to the co-accused.”
14. The learned counsel for respondent also relied upon the
judgment of this court in the case of State of Rajasthan Versus
4
Kistoora Ram wherein Hon’ble J. B. R. Gavai held under para 8
that-
“The scope of interference in an appeal against acquittal is very limited. Unless
it is found that the view taken by the Court is impossible or perverse, it is not
permissible to interfere with the finding of acquittal. Equally if two views are
possible, it is not permissible to set aside an order of acquittal, merely because
the Appellate Court finds the way of conviction to be more probable. The
interference would be warranted only if the view taken is not possible at all.”
15. Moreover, the Ld. counsel for the respondent also contended
the statement of PW-8 is contrary to the story of prosecution, as
per his cross examination, no Head Constable came to his shop
and no one asked for the electronic weighing scale. He did not
know that accused was apprehended by the police. PW-8 in his
oral testimony before the Court in clear and unambiguous words
stated that in his shop only the traditional weighing scale was
3. (2022) 16 SCC 58
4. (2023) 18 SCC 87
8
available and there was no electronic weighing scale. This
uncontroverted version of the witness falsifies the story of
prosecution to the effect that for weighing the contraband article
charas , electronic weighing scale was used. Thus, the oral evidence
of PW-8 is additional reason making the prosecution case doubtful
and untrustworthy.
ANALYSIS
16. After hearing the ld. counsels appearing for the respective
parties and on going through the material placed before us, we are
of the opinion that the High Court committed no error in
appreciating the submissions and also assessing the evidence
brought before the Trial Court in its proper perspective.
17. The High Court vide its judgement 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 was carried out. The police has 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 I.O. 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 consent obtained from the accused was not in conformity with
Section 50 of the Act. It has vitiated the entire trial.
18. Their lordships of the Hon'ble Supreme Court in the case of Suresh and
others versus State of Madhya Pradesh, reported in (2013) 1 SCC 550, have
held that in a case where the accused were merely asked whether they would
offer their personal search to police officer concerned or to gazetted officer and
the appellants gave their consent for their personal search by police officer
9
concerned, it will amount to non-compliance of Section 50(1) of the ND & PS
Act. Their lordships have held as follows:
"16) The above Panchnama indicates that the appellants were merely asked
to give their consent for search by the police party and not apprised of their
legal right provided under Section 50 of the NDPS Act to refuse/to allow the
police party to take their search and opt for being searched before the
Gazetted officer or by the Magistrate. In other words, a reading of the
Panchnama makes it clear 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 personal search. 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.
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 any opinion as to whether the provisions of Section 50 are
mandatory or directory but "failure to inform" the person concerned of his
right as emanating from sub-section (1) of Section 50 may render the
recovery of the contraband suspect and the conviction and sentence of an
accused bad and unsustainable in law. In Vijaysinh Chan Jadeja's case
(supra), recently the Constitution Bench has explained the mandate provided
under sub-section (1) of Section 50 and concluded that it is mandatory and
requires strict compliance. The Bench also held that failure to comply with
the 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. The
concept of substantial compliance as noted in Joseph Fernadez (supra) and
Prabha Shankar Dubey (supra) were not acceptable by the Constitution
Bench in Vijaysinh Chandubha Jadeja, accordingly, in view 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."
19. In the instant case the accused was to be apprised of his legal right to be
searched either before the Gazetted Officer or before the Magistrate and not
before the Police Officer.
20. Their lordships of the Hon'ble Supreme Court in case of State of Rajasthan
versus Parmanand and another, reported in (2014) 5 SCC 345, have held that
if merely a bag is carried by person is searched without there being any search
of his person, S. 50 will have no application but if bag carried by him is searched
and his person is also searched, S. 50 would be attracted. Their lordships have
also held that it was improper for PW-10 S.I. "Q" to tell respondents that a third
alternative was available. It has been held as follows:
10
15. “Thus, if merely a bag carried by a person is searched without there
being any search of his person, Section 50 of the NDPS Act will have no
application. But if the bag carried by him is searched and his person is also
searched, Section 50 of the NDPS Act will have application. In this case,
respondent No.1 Parmanand's bag was searched. From the bag, opium was
recovered. His personal search was also carried out. Personal search of
respondent No.2 Surajmal was also conducted. Therefore, in light of
judgments of this Court mentioned in the preceding paragraphs, Section 50
of the NDPS Act will have application.” ”
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 reveals that there was
no electronic weighing scale available in the shop and he was using
only the traditional weighing scale 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
5
of Rajasthan versus Parmanand and Anr. , in support of the
conclusions drawn by it.
5. (2014) 5 SCC 345
11
19. Thus, in our opinion, the present appeal is devoid of merits
and deserves to be dismissed. Accordingly, the same is hereby
dismissed.
........................................J.
[PANKAJ MITHAL]
.........................................J.
[PRASANNA B. VARALE]
NEW DELHI;
MARCH 16, 2026.
12
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
Digitally signed by
NEHA GUPTA
Date: 2026.03.16
16:21:30 IST
Reason:
prove the case against the accused for the commission of offence
under Section 20 of the Narcotic Drugs and Psychotropic
1
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
2
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
3
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 consent obtained from the accused was not in
conformity with Section 50 of the Act. The act of Investigating
Officer providing the third option namely, the search of accused in
presence of the Police officer was clearly contrary to the provisions
of the Act and particularly contrary to the provisions of Section 50
of ND & PS Act. Considering this act, the High Court observed that
when the provisions of the Act namely, Section 50 provides only
two options i.e. apprising the provision of the Act, apprising the
accused of his legal right available with two options namely, to be
searched either before the Gazetted Officer or before the Magistrate
and providing the third option by the officer concerned that the
4
search before the police officer being contrary to the provisions of
law vitiated the entire trial.
6. The Hon’ble High Court held that the prosecution has failed
to prove the case against the accused for the commission of offence
under Section 20 of the ND & PS Act. Accordingly, in view of the
analysis and discussion made, the appeal was allowed. Judgment
of conviction and sentence dated 31.12.2014, rendered by the
learned Special Judge-I, Shimla, H.P., in Sessions trial No. 21-S/7
of 2013, was set aside. Accused is acquitted of the charges framed
against him.
7. Aggrieved by the said judgement of the High Court, the
appellant is before us.
CONTENTIONS
8. The Learned Counsel for the State of Himachal Pradesh
vehemently submitted that the reasons given by the Trial Court,
while passing the judgment of conviction are on the basis of
evidence on record and without giving scope for contrary view and
as such the court ought not to have allowed the appeal.
9. Petitioner contended that Hon’ble High Court erred in setting
aside conviction of respondent and not considering the fact that
the said charas was being recovered from the bag of the accused
5
person and that the same was not recovered from the personal
search of accused. Statements of PW-1, PW-2 and PW-3 are in
corroboration that charas weighing 11 kg 50 grams was recovered
from the bag which the accused was carrying and not from the
physical search.
10. It was also contended that there was no prior information
with the Investigating Officers regarding the possession of charas
and that the police party had only proceeded on routine
nakkabandi. Therefore recovery made from the bag of the accused
person was rather a chance recovery. Even on examination under
section 313 Cr.P.C the accused denied that he has been falsely
implicated, but no evidence has been led by him to prove his
innocence. The petitioner relied upon Abdul Rashid Ibrahim
1
Mansuri v. State of Gujarat and State of Punjab v. Makhan
2
Singh .
11. Moreover, the site plans clearly show that the place where the
alleged recovery took place was an isolated one there was no
residential area near to the spot the statement corroborates with
the Investigating Officer-PW 11, as he states that due to the place
being isolated no individual witnesses could be engaged. Also, due
1. (2000) 2 SCC 513
2. (2004) 3 SCC 453
6
to the fact that it was early winter morning it is less likely to spot
individuals at 7 a.m.
12. Per contra, the Ld. Counsel for the respondent contended
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 consent
obtained from the accused was not in conformity with Section 50
of the Act. It has vitiated the entire trial.
13. The counsel for the respondent acknowledged that as per
Section 54 of ND & PS Act, under which “unless and until the
contrary is proved, the accused has committed an offence under
this Act for the possession of which he fails to account
satisfactorily”, there is a reverse burden of proof on the accused.
However, the respondent relied upon para 34 of the Sanjeet
7
Kumar Singh alias Munna Kumar Singh versus State Of
3
Chhattisgarh wherein this court held that-
“It is true that Section 54 of the Act raises a presumption and the burden shifts
on the accused to explain as to how he came into possession of the contraband.
But to raise the presumption under Section 54 of the Act, it must first be
established that a recovery was made from the accused. The moment a doubt is
cast upon the most fundamental aspect, namely, the search and seizure, the
appellant, in our considered opinion will also be entitled to the same benefit as
given by the Special Court to the co-accused.”
14. The learned counsel for respondent also relied upon the
judgment of this court in the case of State of Rajasthan Versus
4
Kistoora Ram wherein Hon’ble J. B. R. Gavai held under para 8
that-
“The scope of interference in an appeal against acquittal is very limited. Unless
it is found that the view taken by the Court is impossible or perverse, it is not
permissible to interfere with the finding of acquittal. Equally if two views are
possible, it is not permissible to set aside an order of acquittal, merely because
the Appellate Court finds the way of conviction to be more probable. The
interference would be warranted only if the view taken is not possible at all.”
15. Moreover, the Ld. counsel for the respondent also contended
the statement of PW-8 is contrary to the story of prosecution, as
per his cross examination, no Head Constable came to his shop
and no one asked for the electronic weighing scale. He did not
know that accused was apprehended by the police. PW-8 in his
oral testimony before the Court in clear and unambiguous words
stated that in his shop only the traditional weighing scale was
3. (2022) 16 SCC 58
4. (2023) 18 SCC 87
8
available and there was no electronic weighing scale. This
uncontroverted version of the witness falsifies the story of
prosecution to the effect that for weighing the contraband article
charas , electronic weighing scale was used. Thus, the oral evidence
of PW-8 is additional reason making the prosecution case doubtful
and untrustworthy.
ANALYSIS
16. After hearing the ld. counsels appearing for the respective
parties and on going through the material placed before us, we are
of the opinion that the High Court committed no error in
appreciating the submissions and also assessing the evidence
brought before the Trial Court in its proper perspective.
17. The High Court vide its judgement 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 was carried out. The police has 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 I.O. 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 consent obtained from the accused was not in conformity with
Section 50 of the Act. It has vitiated the entire trial.
18. Their lordships of the Hon'ble Supreme Court in the case of Suresh and
others versus State of Madhya Pradesh, reported in (2013) 1 SCC 550, have
held that in a case where the accused were merely asked whether they would
offer their personal search to police officer concerned or to gazetted officer and
the appellants gave their consent for their personal search by police officer
9
concerned, it will amount to non-compliance of Section 50(1) of the ND & PS
Act. Their lordships have held as follows:
"16) The above Panchnama indicates that the appellants were merely asked
to give their consent for search by the police party and not apprised of their
legal right provided under Section 50 of the NDPS Act to refuse/to allow the
police party to take their search and opt for being searched before the
Gazetted officer or by the Magistrate. In other words, a reading of the
Panchnama makes it clear 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 personal search. 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.
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 any opinion as to whether the provisions of Section 50 are
mandatory or directory but "failure to inform" the person concerned of his
right as emanating from sub-section (1) of Section 50 may render the
recovery of the contraband suspect and the conviction and sentence of an
accused bad and unsustainable in law. In Vijaysinh Chan Jadeja's case
(supra), recently the Constitution Bench has explained the mandate provided
under sub-section (1) of Section 50 and concluded that it is mandatory and
requires strict compliance. The Bench also held that failure to comply with
the 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. The
concept of substantial compliance as noted in Joseph Fernadez (supra) and
Prabha Shankar Dubey (supra) were not acceptable by the Constitution
Bench in Vijaysinh Chandubha Jadeja, accordingly, in view 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."
19. In the instant case the accused was to be apprised of his legal right to be
searched either before the Gazetted Officer or before the Magistrate and not
before the Police Officer.
20. Their lordships of the Hon'ble Supreme Court in case of State of Rajasthan
versus Parmanand and another, reported in (2014) 5 SCC 345, have held that
if merely a bag is carried by person is searched without there being any search
of his person, S. 50 will have no application but if bag carried by him is searched
and his person is also searched, S. 50 would be attracted. Their lordships have
also held that it was improper for PW-10 S.I. "Q" to tell respondents that a third
alternative was available. It has been held as follows:
10
15. “Thus, if merely a bag carried by a person is searched without there
being any search of his person, Section 50 of the NDPS Act will have no
application. But if the bag carried by him is searched and his person is also
searched, Section 50 of the NDPS Act will have application. In this case,
respondent No.1 Parmanand's bag was searched. From the bag, opium was
recovered. His personal search was also carried out. Personal search of
respondent No.2 Surajmal was also conducted. Therefore, in light of
judgments of this Court mentioned in the preceding paragraphs, Section 50
of the NDPS Act will have application.” ”
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 reveals that there was
no electronic weighing scale available in the shop and he was using
only the traditional weighing scale 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
5
of Rajasthan versus Parmanand and Anr. , in support of the
conclusions drawn by it.
5. (2014) 5 SCC 345
11
19. Thus, in our opinion, the present appeal is devoid of merits
and deserves to be dismissed. Accordingly, the same is hereby
dismissed.
........................................J.
[PANKAJ MITHAL]
.........................................J.
[PRASANNA B. VARALE]
NEW DELHI;
MARCH 16, 2026.
12