NDPS: Search of a bag containing contraband and personal search of accused necessitates Section 50 compliance.

The respondent, Surat Singh, was apprehended on March 13, 2013, during a routine police nakabandi while carrying a red-grey colored backpack.

Upon seeing the police, the respondent became perplexed and attempted to flee, leading to his apprehension.

A consent memo (Ext. PW-1/A) was obtained for a personal search, and the police provided an option to be searched either before a Magistrate, a Gazetted Police Officer, or the Investigating Officer in the presence of witnesses.

During the search of his bag, 11 kg 50 grams of charas were recovered.

The charas was repacked, sealed, and samples were taken (Ext. P-1 and Ext. PW-1/C).

An electronic weighing scale was allegedly used, but PW-8, a witness, testified that his shop only had a traditional weighing scale and no one asked for an electronic one.

The Trial Court convicted the respondent under Section 20 of the NDPS Act, sentencing him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-.

The High Court set aside the conviction, holding that the consent obtained for the search was not in conformity with Section 50 of the NDPS Act, as it offered a third, impermissible option (search before a Police Officer).

The High Court also noted the discrepancy regarding the electronic weighing scale.

The State of Himachal Pradesh appealed this decision.

Whether the High Court erred in setting aside the conviction by finding that the consent for search, which included an option to be searched by the Investigating Officer, vitiated the entire trial under Section 50 of the NDPS Act, even though the contraband was recovered from a bag and not from the personal search of the accused.

Whether the prosecution proved its case beyond a reasonable doubt, considering the inconsistencies in the evidence provided by witnesses, particularly concerning the electronic weighing scale.

The court primarily applied Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which mandates that a person about to be searched must be apprised of their legal right to be searched before a Gazetted Officer or a Magistrate.

It relied on the precedent from Suresh and others versus State of Madhya Pradesh [(2013) 1 SCC 550], clarifying that merely asking for consent for a search by a police officer, without clearly informing the right to be searched before a Gazetted Officer or Magistrate, constitutes non-compliance with Section 50(1).

The court also cited Vijaysinh Chandubha Jadeja's case, which held that strict compliance with Section 50 is mandatory, and failure to comply renders the recovery of illicit articles suspect.

Furthermore, the court referred to State of Rajasthan versus Parmanand and another [(2014) 5 SCC 345], which distinguishes between a bag search and a personal search, stating that Section 50 applies if the person and their bag are both searched, especially if a third improper alternative is offered.

The principle regarding the limited scope of interference in an appeal against acquittal, as laid down in State of Rajasthan Versus Kistoora Ram [(2023) 18 SCC 87], was also considered.

The court also acknowledge the reverse burden of proof under Section 54 of the NDPS Act but reiterated that a recovery must first be established.

The Supreme Court affirmed the High Court's decision, emphasizing that the Investigating Officer's act of providing a third option—to be searched by a police officer—was explicitly contrary to the mandatory provisions of Section 50 of the NDPS Act, which only allows for search before a Magistrate or a Gazetted Officer.

This flawed consent process vitiated the entire trial because the accused was not properly apprised of his legal rights, as highlighted in Suresh and others.

Even though the charas was primarily recovered from the bag, the personal search was also carried out, bringing the case within the ambit of Section 50, according to State of Rajasthan versus Parmanand and another.

The Court further found that the prosecution's case was rendered doubtful and untrustworthy due to the oral testimony of PW-8, who contradicted the prosecution's claim regarding the use of an electronic weighing scale, stating that only a traditional scale was available at his shop.

This inconsistency further weakened the prosecution's case, undermining the reliability of the recovery itself.

The Court concluded that the High Court committed no error in its appreciation of the evidence and submissions, finding that the consent obtained from the accused was not in conformity with Section 50 of the NDPS Act, thereby vitiating the trial.

Furthermore, the prosecution's case was deemed doubtful due to conflicting evidence regarding the electronic weighing scale.