Non-compliance with mandatory NDPS search safeguards renders recovery suspect and sustains acquittal.

The State appealed under Section 378(1) and (3) of the Code of Criminal Procedure, 1973, against the acquittal dated 17 June 2009 passed by the Special Judge (NDPS), Himmatnagar, in Special NDPS Case No. 3 of 2006.

The prosecution alleged that, pursuant to prior information, police officers intercepted Shantilal Rupaji Kharadi and Narayan Devji Kharadi during night patrol and recovered approximately 2.5 kg of ganja from a cotton bag allegedly carried by Narayan.

Both persons were prosecuted under Sections 8 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985; the proceedings against Narayan abated after his death.

The prosecution examined six witnesses and produced the complaint, panchnama, FSL report and related documents.

The panch witnesses did not support the prosecution, the person who allegedly weighed the substance was not examined, and the evidence did not establish that the contraband was recovered from or was in the conscious possession of Shantilal.

The trial court consequently acquitted him, leading to the present appeal.

Whether the trial court was justified in acquitting the respondent-accused of the offences under Sections 8 and 20 of the NDPS Act.

Whether the trial court correctly appreciated the oral and documentary evidence adduced by the prosecution.

Whether the acquittal suffered from any illegality, irregularity, perversity or manifest error warranting appellate interference.

Whether the prosecution established compliance with the mandatory safeguards under Sections 42 and 50 of the NDPS Act and otherwise proved the respondent’s conscious possession of the contraband beyond reasonable doubt.

The court applied Sections 8 and 20 of the NDPS Act, which criminalise prohibited dealings in cannabis and possession of ganja, read with the definition of ganja under Section 2(iii)(b).

Sections 41, 42 and 43 prescribe the statutory requirements governing search, seizure and arrest; prior information must ordinarily be recorded and communicated to the superior officer under Section 42, subject to the limited relaxation recognised in Karnail Singh v. State of Haryana, (2009) 8 SCC 539.

Section 50 requires the empowered officer to inform a person proposed to be personally searched of the right to be searched before a Gazetted Officer or Magistrate; strict compliance is mandatory under State of Punjab v. Balbir Singh, AIR 1994 SC 1872, and Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.

The court also relied on State of Rajasthan v. Parmanand, (2014) 5 SCC 345, regarding the distinction between the search of a bag and personal search, and on Jag Raj Singh v. State of Rajasthan, (2016) 11 SCC 687, and Boota Singh v. State of Haryana, (2021) 19 SCC 606, concerning compliance with the NDPS search-and-seizure safeguards.

Although an appellate court has full power to reappreciate evidence in an appeal against acquittal, the accused enjoys a reinforced or “double” presumption of innocence; where two reasonable views are possible, the acquittal should not be disturbed, as stated in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, and reaffirmed in Ramesh v. State of Karnataka, (2024) 9 SCC 169, and Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149.

The High Court found that the prosecution evidence did not reliably connect Shantilal with the seized ganja. The material evidence indicated that the bag and contraband were recovered from Narayan, while no bag or incriminating article was recovered from Shantilal personally.

The panch witnesses failed to support the prosecution, and the alleged weighing witness was not examined, weakening proof of both the seizure and the quantity.

The prosecution also failed to establish compliance with the statutory safeguards concerning prior information, personal search and reporting of arrest and seizure; there was no evidence that the accused had been informed of the Section 50 right to be searched before a Gazetted Officer or Magistrate.

These deficiencies were particularly material in an NDPS prosecution, where possession and lawful recovery must be proved beyond reasonable doubt.

Applying the restricted standard governing interference with acquittal, the court held that the trial court’s view was reasonable, supported by the evidence, and neither perverse nor manifestly erroneous.

The State’s appeal was dismissed, the trial court’s judgment and order of acquittal were confirmed, the bail bond was cancelled, and the record and proceedings were directed to be returned to the trial court.