Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3403 (HP)

Dharmender Kumar @ Govinda v. State of H. P

2025-11-18

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment of conviction and order of sentence dated 28.06.2024, passed by learned Special Judge, Nurpur, District Kangra (learned Trial Court), vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substance (ND&PS) Act and was sentenced to undergo rigorous imprisonment for four years, pay a fine of Rs. 20,000/- and in default of payment of fine to further undergo simple imprisonment for six months for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court against the accused for the commission of an offence punishable under Section 21 of the NDPS Act. It was asserted that HC Govind Singh (PW13), HHC Shashi Pal (PW12), HHC Rattan Chand (PW14) and Constable Manod Kumar (PW11) were present near Anapurna Dhaba on 15.09.2016 at 8:30 pm. The accused came from the opposite side. He saw the police and returned. The police became suspicious and apprehended him. He revealed his name as Dharmender Kumar @ Govinda (the present accused). HC Govind Singh (PW13) issued a Hukamnama (Ext.PW1/E) to HASI Govind Singh (PW13) and directed him to bring independent witnesses. He brought Tilak Raj (PW1) and Harsimran Singh (PW7). HC Govind Singh gave an option to the accused to be searched in the presence of a Magistrate or Gazetted Officer. The accused opted to be searched by the police vide memo (Ext.PW1/D). The police party gave their search to the accused, and nothing incriminating was found in their possession. Memo (Ext.PW1/C) was prepared. HC Govind Singh (PW13) searched the accused and recovered one polythene envelope (Ext.P3) from the left pocket of the pants worn by the accused. He checked the polythene envelope and recovered a light brown substance, which was checked with the help of a drug detection kit and was found to be heroin (Ext.P4). HC Govind Singh (PW13) weighed the heroin and found its weight to be 5.50 grams. He put the heroin in the same envelope from which it was recovered. The envelope was put into the matchbox (Ext.P2). HC Govind Singh (PW13) weighed the heroin and found its weight to be 5.50 grams. He put the heroin in the same envelope from which it was recovered. The envelope was put into the matchbox (Ext.P2). The matchbox was put in a cloth parcel (Ext.P1) and the parcel was sealed with three impressions of seal ‘OT’. Sample seal ‘OT’ was taken on a separate piece of cloth (Ext.PW1/B) and NCB-1 Form (Ext.PW13/A). The seal was handed over to witness Harsimran Singh (PW7) after its use. The heroin was seized vide memo (Ext.PW1/A). HC Shashi Pal (PW12) took the photographs (Ext.PW6/A) of the proceedings. HC Govind Singh (PW13) prepared a rukka (Ext.PW11/A) and handed it over to Constable Manod Kumar (PW11) with the direction to carry it to the Police Station. 3. Constable Manod Kumar (PW11) handed over the rukka to HC Santosh Kumar (PW5), who registered the FIR (Ext.PW5/A) and handed over the case file to Constable Manod Kumar (PW11) with the direction to carry it to the spot. HC Govind Singh (PW13) investigated the matter. He prepared the site plan (Ext.PW13/B) and recorded the statements of witnesses as per their version. He arrested the accused vide memo (Ext.PW13/E). He produced the accused, case property and case file before Santosh Kumar (PW5), who resealed the parcel with three impressions of seal ‘LF’. He obtained the specimen seal impression (Ext.PW5/D) on a separate piece of cloth and issued a resealing certificate (Ext.PW5/C). He handed over the case property to ASI Ashok Kumar (PW4), who made an entry in the register of Maalkhana (Ext.PW4/B) and deposited the case property in Maalkhana. He handed over the case property to HC Govind Singh (PW13) on 16.09.2016 to get the inventory certified. HC Govind Singh (PW13) filed an application before the learned Judicial Magistrate First Class, Indora, for certifying the correctness of the inventory. Learned Judicial Magistrate First Class, Indora, issued the certificate (Ext.PW13/G) and returned the case property to HC Govind Singh (PW13). HC Govind Singh (PW13) returned the case property to ASI Ashok Kumar (PW4), who again deposited it in Maalkhana. HC Govind Singh (PW13) prepared a special report (Ext.PW3/A) and sent it to Sub Divisional Police Officer, Nupur. On 16.09.2016, HC Ashok Kumar (PW4) sent the case property to SFSL Junga, through HHC Rattan Chand (PW14) vide RC No 152/21 (Ext.PW4/A). HC Govind Singh (PW13) returned the case property to ASI Ashok Kumar (PW4), who again deposited it in Maalkhana. HC Govind Singh (PW13) prepared a special report (Ext.PW3/A) and sent it to Sub Divisional Police Officer, Nupur. On 16.09.2016, HC Ashok Kumar (PW4) sent the case property to SFSL Junga, through HHC Rattan Chand (PW14) vide RC No 152/21 (Ext.PW4/A). HHC Rattan Chand (PW14) deposited the case property at SFSL Junga and handed over the receipt to MHC on his return. The result of the analysis (Ext.PX) was issued, in which it was mentioned that the exhibit stated as heroin, was a sample of Diacetylmorphine (heroin). The statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Special Judge. 4. Learned Trial Court charged the accused with the commission of an offence punishable under Section 21 of the NDPS Act, to which he pleaded not guilty and claimed to be tried. 5. The prosecution examined 14 witnesses to prove its case. Tilak Raj (PW1) and Harsimran Singh (PW7) are the independent witnesses of the recovery. HASI Kewal Krishan (PW2) brought the result of the analysis from SFSL, Junga and handed it over to Ashok Kumar. LC Sandeep Kaur (PW3) carried the special report to SDPO. ASI Ashok Kumar (PW4) was working as MHC with whom the case property was deposited. SI Santosh Kumar (PW5) was posted as SHO, who resealed the case property and signed the FIR. Roshan Lal @ Bittu (PW6) developed the photographs. HHC Rajeev Kumar (PW8) proved the entry in the daily diary. Tilak Raj (PW9) prepared the challan. ASI Ashok Kumar (PW10) was posted as a Reader to SDPO Nurpur. Constable Manod Kumar (PW11) and HHC Shashi Pal (PW12) are the official witnesses to recovery. HASI Govind Singh (PW13) investigated the matter. Rattan Chand (PW14) carried the case property to SFSL Junga. 6. The accused, in his statement recorded under Section 313 of Cr. P.C. denied the prosecution's case in its entirety. He stated that he was innocent, and the witnesses deposed against him falsely. He did not produce any evidence in his defence. 7. Learned Trial Court held that Tilak Raj (PW1) did not support the prosecution's case, but he admitted his signature on the various documents. Therefore, his testimony could not be used to discard the prosecution's case. He stated that he was innocent, and the witnesses deposed against him falsely. He did not produce any evidence in his defence. 7. Learned Trial Court held that Tilak Raj (PW1) did not support the prosecution's case, but he admitted his signature on the various documents. Therefore, his testimony could not be used to discard the prosecution's case. Harsimran (PW7), on the other hand, supported the prosecution's case, and nothing was brought in his cross-examination to discredit his testimony. Minor contradictions in statements of the witnesses were not sufficient to discard the prosecution's case because the witnesses were deposing after the lapse of seven years, and contradictions were bound to come with time. The integrity of the case property was established; therefore, the accused was convicted and sentenced as aforesaid. 8. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in appreciating the evidence. One of the independent witnesses had not supported the prosecution's case, and the prosecution's case was required to be seen with due care and caution. The contradictions assumed significance in these circumstances. The integrity of the case property was not proved. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 9. I have heard Mr Lovneesh Singh Thakur, learned counsel for the appellant/accused, and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State. 10. Mr Lovneesh Singh Thakur, learned counsel for the appellant/accused, submitted that one of the independent witnesses did not support the prosecution's case. Various contradictions in the statements of official witnesses made them highly doubtful. The police had told the accused that he could be searched by a Gazetted Officer, and he opted to be searched by the police. However, no explanation was provided as to how the accused could have opted to be searched by the police. This means that a third option was given to him, which is fatal to the prosecution's case. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 11. Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the statements of witnesses were recorded seven years after the incident, and contradictions were bound to come with time. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 11. Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the statements of witnesses were recorded seven years after the incident, and contradictions were bound to come with time. Learned Trial Court had rightly ignored the minor contradictions in the statements. The accused never opted to be taken to the Magistrate or Gazetted Officer, and there is no violation of Section 50 of the NDPS Act. Therefore, he prayed that the present appeal be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. As per the prosecution, the recovery was effected from the pants being worn by the accused, which is part of the clothing covering the body. It was laid down by the Hon’ble Supreme Court in State of H.P. Versus Pawan Kumar (2005) 4 SCC 350 , that the word ‘person’ includes the body of a human being as presented to public view, usually with its appropriate coverings and clothing. It was observed:- “10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or bodies of individuals, as factually in these types of cases, search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section, it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not the naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view, usually with its appropriate coverings and clothing". In a civilised society, appropriate coverings and clothing are considered absolutely essential, and no sane human being comes into the gaze of others without appropriate coverings and clothing. The appropriate coverings will include footwear also as it is normally considered an essential article to be worn while moving outside one's home. In a civilised society, appropriate coverings and clothing are considered absolutely essential, and no sane human being comes into the gaze of others without appropriate coverings and clothing. The appropriate coverings will include footwear also as it is normally considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothing, or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief, do not cover their bodies with clothing, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothing and footwear. 14. Since the recovery was effected from the clothing covering the body, it was essential to comply with the requirement of Section 50 of the NDPS Act. 15. Section 50 of the ND&PS Act deals with the search of a person. It reads as under: “50. Conditions under which the search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such a requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. (4) No female shall be searched by anyone except a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person, but otherwise shall direct that search be made. (4) No female shall be searched by anyone except a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and, within seventy-two hours, send a copy thereof to his immediate official superior.” 16. Thus, the police were to search the accused as per Section 50 of the NDPS Act and had to inform the accused of his right to be searched before the Magistrate or Gazetted Officer. 17. HASI Govind Singh (PW13) stated that he told the accused of his right to be searched before the Magistrate or Gazetted Officer, and the accused opted to be searched by the police. He stated in the cross-examination that the accused was not taken to any Magistrate or Gazetted Officer, as it was night time, and the accused had opted to be searched by the police party. 18. Govind Singh did not explain how the accused could have consented to be searched by the police when an option to be searched before a Magistrate or a Gazetted Officer was given to him. Any person who was provided option to be searched before Magistrate or Gazetted Officer would have choosen either of them and could not have choosen to be searched by the police, he could have refused to be taken to the Magistrate or the Gazetted Officer but could not have himself opted to be searched by the police unless he was informed that he had an option to be searched by the police official. In the absence of any explanation from Govind Singh, it has to be concluded that the accused was also told that he could be searched by the police. It was laid down by the Hon’ble Supreme Court in State of Rajasthan v. Parmanand & another (2014) 5 SCC 345 , that Section 50 only provides an option to be searched before a Magistrate or a Gazetted Officer, and it does not provide for a third option to be searched before the police. It was observed: “19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate, before the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution's case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50 (1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when (1) of the NDPS Act does not provide for it, and when such an option would frustrate the provisions of (1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated.” 19. The law regarding the third option given to the accused was exhaustively considered by this Court in Pradeep Singh alias Rocky vs. State of Himachal Pradesh , 2020(1) Him. L.R. 133, and it was held that giving the third option to the accused is fatal. It was observed: “3(iii)(c). The law regarding the third option given to the accused was exhaustively considered by this Court in Pradeep Singh alias Rocky vs. State of Himachal Pradesh , 2020(1) Him. L.R. 133, and it was held that giving the third option to the accused is fatal. It was observed: “3(iii)(c). Under the provisions of Section 50 of the Act, the accused has to be informed about his legal rights regarding search before a Magistrate or Gazetted Officer. 3(iii)(d). In the instant case, the consent memo (Ext.PW- 1/A), obtained from the accused, shows that in addition to the two statutory options of search before the Magistrate or the Gazetted Officer, a 3rd option was also given to the accused for getting himself searched before any other police officer. It is in such circumstances that the accused gave his search to the police party. Giving 3rd option to the accused was clearly contrary to the mandatory provisions of Section 50 of the Act. In the case titled State of Rajasthan versus Parmanand and Another, (2014) 5 SCC 345 , it has been held by the Hon'ble Apex Court that such a 3rd option could not be given when there was no provision under (1) of the Act. Relevant para of the said judgment is reproduced as under: - "19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate, or before the nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution's case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50 (1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when (1) of the NDPS Act does not provide for it, and when such an option would frustrate the provisions of (1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated." Relying upon the above judgment, in the titled SK. Raju alias Abdul Haque alias Jagga versus State of West Bengal, (2018) 9 SCC 708 , Hon'ble Apex Court further observed thus: - "18. In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two-judge Bench of this Court considered whether compliance with Section 50 (1) was required. This Court held that the empowered officer was required to comply with the requirements of (1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two-judge Bench of this Court in Dilip v State of M.P.] It was held thus: (Parmanand, SCC p.351, para 15). "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, of the NDPS Act will have an application. 19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate, before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. 19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate, before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50 (1) as the empowered officer erred in giving the respondent an option of being searched before the Superintendent, who was not an independent officer." Effect of giving the 3rd option: 3(iii)(e). The effect of illegality committed during the course of the search of the accused has been considered by the Hon'ble Apex Court in the titled State of H.P. Versus Pawan Kumar , (2005) 4 SCC 350 , wherein, after considering various judgements on the question, it was observed thus:- "26. The Constitution Bench decision in Pooran Mal v. The Director of Inspection, (1974) 1 SCC 345 was considered in State of Punjab v. Baldev Singh and having regard to the scheme of the Act and especially the provisions of Section 50 thereof, it was held that it was not possible to hold that the judgment in the said case can be said to have laid down that the "recovered illicit article" can be used as "proof of unlawful possession" of the contraband seized from the suspect as a result of illegal search and seizure. Otherwise, there would be no distinction between recovery of illicit drugs, etc., seized during a search conducted after following the provisions of of the Act and a seizure made during a search conducted in breach of the provisions of . Having regard to the scheme and the language used, a very strict view of of the Act was taken, and it was held that failure to inform the person concerned of his right as emanating from sub-Section (1) of may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him." In a case titled State of H.P. versus Rakesh 2018 LHLJ 214 (HP), this Court observed as under: - "18. ....................................................................... ....................................................................... Now, in view of the above, this Court has to examine whether the provisions of Section 50 of the NDPS Act are applicable to the present case and if applicable, then whether those have been breached or not. Admittedly, as per the version of PW-3, HC Chaman Lal, he has conducted the personal search of both the accused persons and also prepared search memos, Ex. PW-3/P and Ex. PW-3/Q. If only the bag of the accused persons would have been searched, then of the NDPS Act has no application, but as the personal search of the accused persons was also conducted, certainly of the NDPS Act is applicable. In fact, of the NDPS Act has a purpose and communication of the said right, which is ingrained in , to the person who is about to be searched, is not an empty formality. Offences under the NDPS Act carry severe punishment, so the mandatory procedure, as laid down under the Act, has to be followed meticulously. of the Act is just a safeguard available to an accused against the possibility of false involvement. Thus, communication of this right to the accused has to be clear, unambiguous and to the individual concerned. The purpose of this Section is to make the accused aware of his right, and the whole purpose behind creating this right is effaced if the accused is not able to exercise the same for want of knowledge about its existence. This right cannot be ignored, as the same is of utmost importance to the accused. In the present case, certainly, the provisions of of the NDPS Act have not been complied with; therefore, the judgment (supra) is fully applicable to the facts of the present case. 19. In State of Himachal Pradesh vs. Desh Raj & another, 2016 Supp HimLR 3088 (DB), this Court has relied upon the law laid down in Parmanand's case (supra). Relevant paras of the judgment of this Court are extracted hereunder: "18. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that does not provide for the third option. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that does not provide for the third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, would be applicable. ......" Again, in the present set of facts and circumstances, the judgment (supra) is fully applicable to the present case, as the right provided under Section 50 of the NDPS Act can in no way be diluted and its compliance is mandatory in nature." Therefore, the combined effect of the law laid down by the Hon'ble Apex Court, as applied to the facts of the case in hand, is that non-compliance with the mandatory provisions of Section 50 of the Act has vitiated the proceedings related to search and recovery. Point is, therefore, answered in favour of appellant.” 20. It was held in Dayalu Kashyap v. State of Chhattisgarh , (2022) 12 SCC 398 : 2022 SCC OnLine SC 334, that giving a third option would vitiate the search and the recovery. It was observed at page 400: 4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and, in a way, affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563], more specifically, SCC para 19. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 : (2014) 2 SCC (Cri) 563], more specifically, SCC para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned, not being part of the statute, the same could not have been offered to the appellant, and thus, the recovery from him is vitiated.” 21. A similar view was taken in Ranjan Kumar Chadha v. State of H.P. , 2023 SCC OnLine SC 1262: AIR 2023 SC 5164 , wherein it was observed: 27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with, as the appellant could not have been offered the third option of a search to be conducted before the ASI. of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told whether he would like to be searched before a police officer or a Gazetted Officer, or a Magistrate? 28. This Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , held that it is improper for a police officer to tell the accused that a third alternative is also available, i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of ….. 29. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of ….. 29. Thus, from the oral evidence on the record as discussed above, it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police officer.” 22. It was further held in Ranjan Kumar Chadha (supra) that the Investigating Officer should give an option to the accused to be searched before the Magistrate or the Gazetted Officer, the accused can decline to avail of such option, and the investigating officer can carry out the search himself. It was observed: “62. Section 50 of the NDPS Act only goes so far as to prescribe an obligation to the police officer to inform the suspect of his right to have his search conducted either in the presence of a Gazetted Officer or Magistrate. Whether or not the search should be conducted in the presence of a Gazetted Officer or Magistrate ultimately depends on the exercise of such right as provided under . In the event the suspect declines this right, there is no further obligation to have his search conducted in the presence of a Gazetted Officer or Magistrate, and in such a situation the empowered police officer can proceed to conduct the search of the person himself. To read otherwise would render the very purpose of informing the suspect of his right a redundant exercise. We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate. 63. 63. A plain reading of the extracted paragraphs of Arif Khan (supra) referred to above would indicate that this Court while following the ratio of the decision of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) held that the same has settled the position of law in this behalf to the effect that, whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires strict compliance; this Court simultaneously proceeded to reiterate that in Vijaysinh Chandubha Jadeja (supra) “it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act”. 64. There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires”, as used in (1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived “such requisition”, as mentioned in the opening sentence of sub-Section (2) of of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only “if he so requires”, upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under of the NDPS Act. 65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. 65. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate, and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that “I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted Officer or Magistrate and I may be searched by the empowered officer.” This would lend more credence to the compliance of of the NDPS Act. In other words, it would impart authenticity, transparency and creditworthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively. 66. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:— (i) Section 50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. (ii) Where the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate, and he may be searched by the empowered officer. (iii) Before conducting a search, it must be communicated in clear terms, though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in the presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their rights, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50 . (vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate, but an endeavour should be made to take him before the nearest Magistrate. (vii) Section 50 is applicable only in case of search of a person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence. (viii) Where, during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation, Section 50 may not be required to be complied with for the reason that the search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 , would be inadmissible and cannot be relied upon in the trial by the prosecution; however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings. 23. In the present case, the memo (Ex.PW1/D) contains the writing of the accused that he wanted to be searched by the police. This writing does not mention that the accused, after having been apprised of the right to be searched before the Magistrate or Gazetted Officer, had elected to waive the right. Hence, the submission that the police had not complied with the provisions of Section 50 of the NDPS Act has to be accepted as correct. 24. It was laid down by the Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 , that violation of Section 50 of the NDPS Act is fatal and the police cannot rely upon the recovery effected in violation of of the NDPS Act. It was observed:– “29. …… We have no hesitation to hold that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit articles suspect and vitiate the conviction if the same is recorded only on the basis of recovery of an illicit article from the person of the accused during such search.” 25. This position was reiterated in Arif Khan @ Agha Khan versus State of Uttarakhand AIR 2018 SC 2123 , wherein it was observed:- “28. This position was reiterated in Arif Khan @ Agha Khan versus State of Uttarakhand AIR 2018 SC 2123 , wherein it was observed:- “28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “Charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 29. Though the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party, none of them deposed that the search/recovery was made in the presence of any Magistrate or a Gazetted Officer. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.” 25. The memo (Ext.PW1/D) regarding the option to be searched mentions the FIR number, date and Section 21 - 61- 85 of the NDPS Act. As per the police, this document was prepared before the search of the accused. The memo (Ext.PW1/D) regarding the option to be searched mentions the FIR number, date and Section 21 - 61- 85 of the NDPS Act. As per the police, this document was prepared before the search of the accused. However, there is no explanation as to how the Investigating Officer could have known that the accused would be found in possession of heroin or contraband, which would fall within the purview of of the NDPS Act. Thus, mentioning of the NDPS Act makes it doubtful that the document was prepared before the search of the accused. 26. In State of H.P. v. Gyasho Ram , 2024 SCC OnLine HP 4192, the police had recorded the section in the consent memo. It was laid down by this Court that this suggested that the police had prior information or the document was prepared after the search. It was observed: “20. Now in case, Ext. PW-1/A to Ext. PW-1/C are perused, it would be noticed that the number of the FIR on these documents is conspicuously missing and the heading thereof reads as “Fard Sahmati Patar Adhin Dhara 50 NDPS Act, i.e Consent Memo Under Section 50 of the NDPS Act.” This memo, as per the prosecution, was written on the spot and prepared prior to the recovery of the contraband. 21. Once the police party had gone for patrolling duty, we really wonder as to how, prior to the recovery of the contraband, the provisions of Section 50 of the NDPS Act could have been invoked. Even if some suspicion had arisen, how could it be only for the charas and for anything illegal like liquor, gold, forest produce, wild animal body parts, etc., etc. 22. In this background, the fact that the document makes a mention of only the NDPS Act can only lead to an inference that the police had prior information regarding the respondents being in possession of contraband punishable under the NDPS Act or that this document was prepared not only before the search of the respondents but after the recovery of the charas.” 27. A similar view was taken in State of H.P. v. Manoj Bahadur , 2024 SCC OnLine HP 3442, wherein it was observed: “16. Apart from the above, the manner in which the prosecution claims to have prepared the document is also not free from doubt. A similar view was taken in State of H.P. v. Manoj Bahadur , 2024 SCC OnLine HP 3442, wherein it was observed: “16. Apart from the above, the manner in which the prosecution claims to have prepared the document is also not free from doubt. As per the prosecution, search memos Ext.PW-1/A and Ext.PW-1/B were prepared prior to the signing of the rukka; however, it is not understandable as to how these documents bear FIR number and the provisions of law, under which the respondent was stated to have committed the crime.” 28. Thus, the prosecution’s case that an option to be searched before the Magistrate or the Gazetted Officer was given to the accused before his search becomes highly doubtful. 29. Tilak Raj (PW1) did not support the prosecution's case. He stated that the police had apprehended the accused. The police had searched before his arrival. He was permitted to be cross-examined. However, he denied the previous statement recorded by the police. He denied that the police searched the accused in his presence and in the presence of Harsimran Singh (PW7) and recovered the heroin. Thus, it is apparent that he has not supported the prosecution's case. 30. Learned Trial Court had rightly held that the prosecution’s case cannot be discarded by the mere fact that an independent witness had turned hostile. However, this would require a careful scrutiny of the testimonies of the official witnesses. 31. When the testimonies of the remaining officials are seen, the following contradictions emerge: (i) Constable Manod Kumar (PW11) stated that both the independent witnesses arrived on the spot on their motorcycles. HHC Shashi Pal (PW12) and HASI Govind Singh (PW13) stated that these witnesses reached the spot on foot. (ii) Constable Manod stated that HC Govind Singh (PW13) weighed and sealed the contraband. HHC Shashi Pal (PW12) stitched the parcel. HC Govind Singh (PW13), on the other hand, stated that he had weighed, sealed and stitched the parcel. (iii) Constable Manod Kumar (PW11) stated that the accused was seen from a distance of 50 meters and was chased for 5-10 meters. HHC Shashi Pal (PW12) stated that the accused was seen at a distance of 8-10 feet and was chased up to a distance of four feet. Govind Singh (PW13) stated that the accused was noticed from a distance of 20 meters and the police chased him up to 10-50 meters. HHC Shashi Pal (PW12) stated that the accused was seen at a distance of 8-10 feet and was chased up to a distance of four feet. Govind Singh (PW13) stated that the accused was noticed from a distance of 20 meters and the police chased him up to 10-50 meters. (iv) Constable Manod Kumar (PW11) and HASI Govind Singh (PW13) stated that the case file was handed over at 1:45 PM. HC Shashi Pal (PW12) stated that the case file was handed over to the Investigating Officer at 12:30 AM. 32. Learned Trial Court held that these contradictions were not significant and bound to come with time. There can be no dispute that the minor contradictions are insufficient to doubt the prosecution's case; however, when one independent witness has not supported the prosecution’s case, and the prosecution's case regarding giving an option to the accused to be searched before a Magistrate or Gazette Officer is suspect, these contradictions assume significance and cannot be ignored. 33. Once it is held that the prosecution's case regarding giving an option to be searched to the accused is highly suspect, the prosecution cannot rely upon the recovery effected from the accused, and the accused cannot be held guilty of the commission of an offence punishable under Section 21 of the NDPS Act. 34. Learned Trial Court did not advert to this aspect; therefore, the judgment and order passed by the learned trial court cannot be sustained. 35. In view of the above, the present appeal is allowed, and judgment and order dated 28.06.2024 passed by the learned Trial Court are ordered to be set aside. The accused is acquitted of the commission of an offence punishable under Section 21 of the NDPS Act. The fine amount, if deposited be refunded to him after the expiry of the period of limitation for filing an appeal if no appeal is filed and in case of appeal, it be dealt with as per the judgment of the Hon’ble Supreme Court. 36. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the appellant is directed to furnish bail bonds in the sum of Rs. 36. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the appellant is directed to furnish bail bonds in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 37. A copy of this judgment, along with the record of the learned Trial Court, be sent back forthwith. Pending applications, if any, also stand disposed of.