Third option for personal search before a police officer violates Section 50 of the NDPS Act.

On March 29, 2010, a police patrolling party headed by PW-9 (ASI Orender Singh) intercepted a passenger vehicle at Kupardhar.

Observing the respondent-accused appearing perplexed and noting a bulge in his trousers, the police suspected him of carrying contraband

A consent memo (Ex. PW-1/A) was prepared, offering the accused a search before the IO, a Gazetted Officer, or a Magistrate

Upon a personal search involving the removal of the accused's jeans, 450 grams of Charas was recovered from a packet wrapped in cello tape near his private parts

The Trial Court acquitted the accused on March 16, 2015, citing non-compliance with the mandatory provisions of Section 50 of the NDPS Act

The State appealed this acquittal, contending that the evidence and FSL report sufficiently proved the offense

1. Whether the investigating agency complied with the mandatory requirements of Section 50 of the NDPS Act regarding the communication of the accused's right to be searched before a Gazetted Officer or a Magistrate

2. Whether providing a "third option" to be searched by the Investigating Officer, in addition to a Gazetted Officer or Magistrate, vitiates the recovery and subsequent trial

3. Whether material discrepancies in the prosecution's timeline and the non-examination of independent witnesses created reasonable doubt

The Court applied Section 50 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, which governs the conditions under which a personal search of a person is conducted

It relied on the Constitutional Bench decisions in State of Punjab v. Baldev Singh (1999) and Vijaysinh Chandubha Jadega v. State of Gujarat (2011), establishing that informing the suspect of their right to be searched before a Gazetted Officer or Magistrate is a mandatory, sacrosanct, and indefeasible legal obligation

Furthermore, the Court applied the "third option" doctrine from State of Rajasthan v. Parmanand (2014) and Ranjan Kumar Chadha v. State of Himachal Pradesh (2023), which stipulates that offering a search by a police officer as an alternative to the two statutory authorities violates Section 50 and renders the recovery inadmissible

The Court determined that the personal search was procedurally fatal to the prosecution's case. Per the Consent Memo (Ex. PW-1/A), the IO (PW-9) improperly provided a "third option" by asking the accused if he wished to be searched by the police party itself

This departure from the two specific statutory options (Gazetted Officer or Magistrate) frustrated the legislative intent of providing an independent search environment

PW-9 further admitted in cross-examination that he did not explicitly apprise the accused of his legal right to such a search, which is a mandatory requirement under Baldev Singh

Beyond procedural non-compliance, the Court noted several "glaring infirmities": the prosecution failed to examine a key independent witness (Bhim Chand) without explanation; the independent witness who did testify (PW-3) admitted the memo was not read to him; and a significant temporal impossibility existed where the police allegedly travelled 33 kilometers in five minutes to register the FIR.

These factors collectively rendered the recovery suspect and the prosecution’s narrative incredible

The High Court dismissed the State's appeal and upheld the acquittal of the respondent-accused.

The Court found no perversity in the Trial Court's judgment, noting that the non-compliance with statutory procedures and the presence of material discrepancies entitled the accused to the benefit of the doubt