Acquittal upheld where NDPS prosecution failed to prove conscious possession and mandatory search compliance.

The prosecution alleged that, on 6 February 2010, Police Sub-Inspector G.D. Palsana received secret information that the respondent and his son were possessing and selling ganja.

A police raiding party proceeded to the respondent’s residence, where the respondent was absent and his minor son was present.

The police allegedly recovered 2.780 kg of ganja from a suitcase in the house and registered an offence under Sections 8 and 20(b)(2) of the NDPS Act.

After trial, the Sessions Court acquitted the respondent on 18 September 2012.

The State filed an appeal against acquittal under Section 378(1) and (3) of the Code of Criminal Procedure, 1973.

Whether the Trial Court was justified in acquitting the respondent of the offences under Sections 8 and 20(b)(2) of the NDPS Act.

Whether the Trial Court properly appreciated the oral and documentary evidence led by the prosecution.

Whether the impugned judgment of acquittal suffered from illegality, irregularity or perversity warranting appellate interference.

The Court applied Sections 8 and 20(b)(2) of the NDPS Act, under which unauthorised possession of ganja constitutes an offence; Sections 41, 42, 43, 50, 57 and related procedural safeguards governing search, seizure, prior information, personal search and post-seizure reporting; and Section 378 CrPC concerning appeals against acquittal.

Relying on State of Punjab v. Balbir Singh, AIR 1994 SC 1872, and Karnail Singh v. State of Haryana, (2009) 8 SCC 539, the Court held that prior information under Section 42 must ordinarily be reduced into writing and communicated to the superior officer, subject only to limited, satisfactorily explained urgency.

Under Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, the obligation to inform a person of the right under Section 50 to be searched before a Gazetted Officer or Magistrate is mandatory.

The Court also relied on State of Rajasthan v. Parmanand, (2014) 5 SCC 345, concerning the applicability of Section 50 to personal search.

The Court also relied on Chandrappa v. State of Karnataka, (2007) 4 SCC 415, as reaffirmed in Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471, and Ramesh v. State of Karnataka, (2024) 9 SCC 169, for the principle that although an appellate court may fully reappreciate evidence in an appeal against acquittal, it should not interfere where two reasonable views are possible and the accused has the benefit of double presumption of innocence.

The Court found that the prosecution had not established the statutory and evidentiary foundations necessary to prove conscious possession beyond reasonable doubt.

The secret information was neither reduced into writing nor produced, and the Investigating Officer admitted that the search warrant was obtained only after the search and seizure.

The prosecution did not satisfactorily prove that the premises belonged to or were occupied by the respondent; no investigation or documentary proof beyond a ration-card copy was produced.

The independent and panch witnesses did not support the prosecution, while the evidence regarding the weighing certificate was inconsistent because it was allegedly obtained two days later but bore the date of the raid.

The alleged signature or consent of the respondent’s minor son could not establish a valid search or connect the respondent with conscious possession, particularly as the respondent was not present at the premises.

Further contradictions concerning seizure and safe custody of the contraband created doubt regarding the integrity of the recovery.

In light of these lapses and the alleged non-compliance with Sections 41, 42, 43, 50 and 57 of the NDPS Act, the Court held that the Trial Court’s view was reasonable and supported by the record, not perverse or manifestly illegal.

It held that the prosecution failed to prove the respondent’s conscious and unlawful possession of 2.780 kg of ganja beyond reasonable doubt and that the Trial Court had properly appreciated the evidence and applied the applicable NDPS safeguards.

The State’s appeal was dismissed, the judgment and order of acquittal dated 18 September 2012 were confirmed, the bail bond was cancelled, and the record and proceedings were directed to be returned to the Trial Court.