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2025 DAILYLAW 3681 (HP)

State of H. P v. Suresh Kumar @ Kalu

2025-11-22

Romesh Verma, Vivek Singh Thakur

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JUDGMENT : ROMESH VERMA, J. The present appeal arises out of the judgment of acquittal as passed by the learned Additional Sessions Judge (II), Mandi, District Mandi, H.P. on 03.01.2015, whereby, respondent has been acquitted of the charges in case FIR No. 128/10 dated 24.04.2010, registered at Police Station Sadar, Mandi, District Mandi, H.P. under Section 20 of Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS Act’). 2. The story, as projected by the prosecution against the respondent, is that on 24.04.2010, ASI Pal Singh alongwith Constable Sanjiv Kumar, Constable Dhameshwar Singh and HHC Amar Singh, left Police Station Sadar, Mandi, in the official vehicle for checking the traffic and detection of cases. At about 8.45 in the morning, one person was coming on foot from Pandoh to Mandi side. On seeing the police party, he started to flee away from the spot and on that the police officials got suspicion that he must be possessing some contraband. The said person was apprehended at about 30 - 35 meters, after chasing him. The area was secluded and no independent witnesses could be associated. Though, the passing vehicles were tried to be stopped to get the witnesses, however, nobody agreed to become a witness in the case. On inquiry, the accused disclosed his name as Suresh Kumar @ Kalu son of Sh. Sube Singh, resident of Village Panchi Jatan, Tehsil Ganaur, District Sonipat, (Haryana). The personal search of the accused was conducted and during search, in his right leg under the knee, a knee cap, brown in colour, having two plastic transparent packets containing contraband black and brown in colour in the shape of ‘Batti’ and ‘ Chapati’ was found. The said contraband was taken out and it was checked and on the basis of experience, it was found to be cannabis (charas). The charas was weighed and it was found to be 900 grams and thereafter put in a cloth and seal “A” was appended on the same. NCB Form in triplicate was filled up at the spot and it was embossed with seal impression”A”. The sample seal was taken on a piece of cloth which is Ext.PW4/C. The seal after its use was handed over to the witness Constable Dhameshwar PW-4. NCB Form in triplicate was filled up at the spot and it was embossed with seal impression”A”. The sample seal was taken on a piece of cloth which is Ext.PW4/C. The seal after its use was handed over to the witness Constable Dhameshwar PW-4. A ruka Ext.PW8/B was drawn and the same was sent to the Police Station through HHC Amar Singh and on the basis of which case FIR No.128/10 Ext.PW9/A was registered at Police Station Sadar, District Mandi.The case property was sent to FSL, Junga for analysis and report of chemical Analyst Ext PX was obtained. 3. On completion of investigation, the police presented the challan against the accused person in the Court for the offence punishable under Section 20 of NDPS Act. 4. During the trial before the learned court below, accused person (respondent herein) was charged for offence punishable under Section 20 of NDPS Act., to which he pleaded not guilty and claimed Trial. 5. In order to substantiate its case, the prosecution has examined nine witnesses in all. Thereafter, respondent was examined under Section 313 of Cr.P.C. He denied all the incriminating material and took the defence that he is innocent and has been falsely implicated in the case. However, respondent did not examine any witness in his defence. 6. The learned trial court, after evaluating the oral as well as documentary evidence, acquitted the respondent, as aforesaid, constraining the appellant-State to file the instant appeal. 7. Mr. I.N. Mehta, learned Senior Additional Advocate General would argue that the findings recorded by the learned Court below are totally perverse and therefore, deserve to be set aside. 8. On the other hand, Mr. Naresh K. Sharma, Advocate, has supported the impugned judgment and urged that since the same is based on evidence, it warrants no interference. 9. We have heard the learned counsel for the parties and have also gone through the records of the case in detail. 10. ASI Pal Singh, the Investigating Officer of the case was examined by the prosecution as PW-8 and he stated in his deposition that he alongwith Constable Sanjiv Kumar, Constable Dhameshwar Singh, HHC Amar Singh was present at about 8.45 p.m.,400 mts. ahead of Bindrawani, where they laid a naka. He stated that one person was coming on foot from Pandoh side towards Mandi. On seeing the police party, he turned back and started running. ahead of Bindrawani, where they laid a naka. He stated that one person was coming on foot from Pandoh side towards Mandi. On seeing the police party, he turned back and started running. The said person was apprehended at a distance of about 25-30 mts. PW-8 further stated that the place being secluded one, as such, no local witnesses was available there. He also stated that the occupants of the vehicle plying on the road were also requested to become the witnesses in this case, but they refused to do so. He cited Constable Sanjeev Kumar and Constable Dhameshwar as witnesses and accused was interrogated and asked about his name and address, who disclosed his name to be Suresh Kumar @ Kalu son of Sh. Sube Singh VPO Panchi Jata, Tehsl Gadaon, District Sonipat (Haryana). The accused was apprised of his legal right to be searched either before the Magistrate or a Gazetted Officer, vide memo Ext.PW4/B in the presence of the witnesses Sanjeev Kumar and Dhameshwar Singh, who gave in writing that he is ready to give his personal search to the police. The personal search of the accused was got done and the police officers found kept knee cap of brown colour in his right leg below knee. On opening of the knee cap, two polythene envelopes containing black coloured substance in the shape of ‘battis’ and ‘chapatis’ was recovered. On weighing the same, it was found to be 900 grams. Thereafter the recovered substance was put back into the polythene envelope and then into the cloth parcel and was sealed with seal at seven places. NCB form in triplicate was filled-in from column Nos. 1 to 8,which is Ext.PW8/A and embossed seal impression ‘A’ upon it and sample seal was also taken on a piece of cloth which is Ext.PW4/C, which bears the signatures of both the witnesses and that of the accused. He stated that seal after its use was handed over to Constable Dhameshwar Singh. Rukka Ext.PW8/B was sent through Constable Amar Singh for registration of FIR. Thereafter, he prepared the site plan Ext.PW8/C and the accused was given notice of the arrest vide memo Ext. PW4/C. 11. In the cross examination PW-8, the I.O. of the case stated that they reached at the place where they laid a naka at 6.00 a.m. . Rukka Ext.PW8/B was sent through Constable Amar Singh for registration of FIR. Thereafter, he prepared the site plan Ext.PW8/C and the accused was given notice of the arrest vide memo Ext. PW4/C. 11. In the cross examination PW-8, the I.O. of the case stated that they reached at the place where they laid a naka at 6.00 a.m. . He stated that before 8.45 a.m. they kept on checking vehicles but he did not remember the numbers of the vehicles. He further stated that NCB forms were filled in after search of the police officials, consent of the accused and seizure memo. He also stated that all the memos were got written by Constable Dhameshwar at his instance. He stated that Amar Singh left the spot with rukka at 10.00 a.m.. All the proceedings were carried out while sitting on a parapet. He stated that when the accused of case FIR 129/10 was detected, constable Amar Singh was also with them and that the said case was detected after the completion of case FIR No. 128/10. He has admitted that while travelling in official vehicle one has to write the purpose and mileage covered in log-book. 12. Constable Roshan Lal, was examined as PW-1 and he has stated that he remained posted in Police Station Sadar, Mandi as constable general duty w.e.f December,2009 to June, 2011. He further stated that on 26.04.2010, H.C Anil Kumar had handed over to him one sealed parcel with seal A and ‘T’ i.e 7 seals of ‘A’ and 4 seals of ‘T’ stated to be containing 900 grams of charas, NCB Form in triplicate, sample seals ‘A’ and ‘T’ vide R/C No. 20/10, dated 26.4.2010 for being taken to FSL Junga. He deposited the said case property in the Laboratory and obtained receipt. He returned the R/C along with receipt to the MHC/Malkhana Incharge on his return. 13. H.C Anil Kumar was examined by the prosecution as PW-2 who stated that he was posted as Incharge Malkhana in P.S Sadar, Mandi w.e.f September, 2009 to December 2010. On 24.4.2010, S.I./SHO Hari Singh deposited with him one sealed parcel sealed with seven seals of ‘A’ and 4 seals of ‘T’ stated to be containing 900 grams charas, NCB form in triplicate, sample seals ‘A’ and ‘T’ and seizure memo regarding which he made an entry in Malkhana register at Sr. No. 1051. On 24.4.2010, S.I./SHO Hari Singh deposited with him one sealed parcel sealed with seven seals of ‘A’ and 4 seals of ‘T’ stated to be containing 900 grams charas, NCB form in triplicate, sample seals ‘A’ and ‘T’ and seizure memo regarding which he made an entry in Malkhana register at Sr. No. 1051. He further stated that he has brought the abstract of malkhana register i.e Ext.PW2/A. PW-2 also stated that he forwarded the case property to FSL Junga through Constable Roshan Lal vide R/C No.20/10. After depositing the case property in the laboratory Constable Roshan Lal returned the R/C alongwith receipt to him and so long the case property remained in his custody no tampering was done by anybody. 14. In his cross examination, PW-2 has denied that on 24.04.2010, SHO Hari Singh had not deposited with him one sealed parcel sealed with 7 seals of 'A' and 4 seals of 'T’ stated to be containing 900 grams charas. He denied that entries in the malkhana register were manipulated later on. 15. PW-3 HHC Jagat Ram was also examined and he stated that he remained posted as HHC in general duty in Police Station, Sadar Mandi during the year 2010. On 17-5-2010, ??C/Malkhana Incharge handed over the case property of some other case bearing No. 146/2010 for being taken to F.S.L. Junga and he deposited the case property of this case in the Laboratory and on his return, report of this case Ext.PX was given to him in the Laboratory, which he handed over to H.C.Anil Kumar, Incharge Malkhana. 16. PW-4 C. Dhameshwar Singh was examined and he has stated that he remained posted in PS Sadar as Constable since 2009. On 24.4.2010, he along with C. Amar Singh, C. Sanjeev Kumar, HC Pal Singh was present 400 meters ahead of Bindravani, at about 8.45 a.m in connection with Nakabandi on NH 21. In the meantime, one person was seen coming from Pandoh side towards Mandi. On seeing the police party, he turned back and started running. However, on the basis of suspicion having been in possession of stolen articles and narcotic substance, he was apprehended at a distance of 30-35 meters by the I.O with the help of other police officials. In the meantime, one person was seen coming from Pandoh side towards Mandi. On seeing the police party, he turned back and started running. However, on the basis of suspicion having been in possession of stolen articles and narcotic substance, he was apprehended at a distance of 30-35 meters by the I.O with the help of other police officials. The place being secluded one and isolated, no local witness was available upon which, the I. O asked the drivers as well as the occupants of the vehicles plying to become witnesses, but none of them was ready to become the witness. PW-4 has stated that the I.O. associated him and C. Sanjeev Kumar as witnesses and asked the name and address of the person apprehended, who disclosed his name as Suresh Kumar @ Kalu, R/O Village Panchi Jatian Tehsil Gannaur Distt Panipat Haryana, Thereafter, the I.O. along with other police officials gave their personal search to the accused vide memo Ex. PW4/A in the presence of the witnesses, on which both the witnesses, accused and other police officials appended their signatures. Thereafter the accused was made aware of his legal right to be searched before the Magistrate or Gazetted Officer in writing vide memo Ext.PW 4/B, to which the accused Suresh Kumar gave in writing to the police that he is willing to give his search to the police which is in Red circle. Thereafter, the personal search of the accused was carried out by the I.O in their presence and they had found one knee cap over his right leg and had found two transparent polythene envelopes containing black coloured substance in the shape of ‘Chapati’ and ‘sticks’. As per experience and smelling, the same was found to be charas. On weighing, the recovered charas was found to be 900 gram. The recovered charas along with knee cap and polythene envelopes was put in a cloth parcel and was sealed with seal ‘A’ at seven places. The sample seal was taken on a piece of cloth which is Ext. PW 4/C on which the accused, Costable Sanjeev Kumar and he himself had appended the signatures. He stated that seal after its use was handed over to him . Thereafter, the recovered charas along with NCB form -1 in triplicate and sample seal was taken into possession vide memo Ex. PW 4/C on which the accused, Costable Sanjeev Kumar and he himself had appended the signatures. He stated that seal after its use was handed over to him . Thereafter, the recovered charas along with NCB form -1 in triplicate and sample seal was taken into possession vide memo Ex. PW4/D on which Constable Sanjeev Kumar and he had appended their signatures as witnesses. 17. In the cross examination, PW-4 stated that Amar Singh reached at the spot after registration of the FIR in between 10.45 AM to 11.00 AM. He did not remember that memo regarding notice of arrest was prepared either in the presence of C. Amar Singh or not. A notice of arrest was given and the accused was arrested and statement of C. Amar Singh was recorded. All the proceedings were completed at about 3.45 PM. He stated that they left the Police Station at about 5.45 a.m. in the morning in an official vehicle bearing No. HP 33B-2921. It took about 15 minutes to reach Bindravani. He stated that in between 6.00 a.m to 8.45 a.m, they checked about 10-15 vehicles. He further stated that no vehicle was challaned under Motor Vehicle Act. The accused was firstly noticed by the I.O and was firstly apprehended by the I.O with the help of other police officials. He also stated that they were not having full confidence about the possession of contraband before taking his search. Memo under Section 50 of NDPS Act was written by the I.O himself. He stated that all the documents were prepared by the I.O. himself. The one side of the parcel was stitched with thread and needle and the remaining portion was stitched with machine. On seeing the cloth parcel, the same was found to be stitched from both sides. He stated that his statement was recorded after recovery of charas and filling of NCB form in triplicate. Before sending rukka, the I.0 had completed the recovery proceedings except preparing site plan and recording of statement of witnesses. He has admitted that he is deposing for the first time in the court about the use of official vehicle by the police party. Before sending rukka, the I.0 had completed the recovery proceedings except preparing site plan and recording of statement of witnesses. He has admitted that he is deposing for the first time in the court about the use of official vehicle by the police party. He has stated that in order to cover distance from police station to Bindravani, it takes about 15- 20 minutes in a vehicle and on the same day, one more case of NDPS Act was detected by the police party and he was also associated in that case. He has admitted that NH- 21 is a busy road and the vehicles ply over it frequently. 18. PW-5 HHC Amar Singh No.353 entered into the witness box and stated that he was posted as Constable in Police Station Sadar. On 24.4.2010, he alongwith Constable Dhameshwar Singh, Constable Sanjeev Kumar and H.C Pal Singh was present 400 meters ahead of Bindravani. They were present on the spot at about 8.45 a.m. in the morning. One person was seen coming from Pandoh side towards Mandi. He was apprehended at a distance of 30-35 meters by the I.0 with the help of other police officials. He stated that the place being secluded and isolated, no local witness was available. Upon which, the I.O apprised the drivers as well as the occupants of the vehicles to become witnesses but none of them was ready to become witness. Thereafter, the Investigating Officer associated him and C. Sanjeev Kumar as witnesses and asked the name and address of the person apprehended, who disclosed his name as Suresh Kumar @ Kalu, r/O Village Panchi Jatian Tehsil Gannaur Distt Panipat (Haryana), The accused was made aware of his legal right to be searched before the Magistrate or Gazetted Officer in writing vide memo Ext. PW 4/B, to which the accused gave in writing that he is willing to give his search to the police, which is in Red circle. Thereafter, the personal search of the accused was carried out by the Investigating Officer and they found one knee cap over his right leg and found therein two transparent polythene envelopes containing black coloured substance in the shape of Chapati and sticks. As per experience and smelling the same was found to be charas.On weighing, the recovered charas was found to be 900 grams. As per experience and smelling the same was found to be charas.On weighing, the recovered charas was found to be 900 grams. The recovered charas along with knee cap and polythene envelopes was put in a cloth parcel and was sealed with seal A at 7 places. NCB-1 form in triplicate was filled in at the spot and embossed seal impression upon it from column Nos. 1 to 9. Sample seal was taken on a piece of cloth which is Ex. PW 4/C on which the accused, Constable Sanjeev Kumar appended their signatures. Seal after its use was handed over to him. 19. In the cross examination, PW-5 has stated that it is correct that he is deposing for the first time in the Court about detection of the second case whereby they reached in the police station at 4.45.p.m. He stated that they left the police station at 5.45 a.m in official vehicle and before the apprehension of the accused, they kept on checking the vehicles. PW-5 stated that he did not remember that besides recording his statement, I.O had written other documents or not. He stated that he did not remember the contents of the consent memo. He stated that all the documents were prepared by the I.O himself at the spot. He further stated that he left with rukka after recovery of charas. He also stated that I.O.had not sent any police personnel for calling local witness. Self stated that only the occupants of vehicles plying on the road were requested by the I.O but they refused to become witness. Accused in both the cases reached in police station together. He denied that no charas was recovered from the accused. 20. H.C. Sant Ram was examined as PW-6, who stated that he was posted as Reader to ASP Mandi since 2009. On 26.4.2010, ASP Sh Abhishek Dular handed over to him special report of case FIR No. 128/10 which is Ex PW6/A, after making his endorsement which is in red circle-A at 10.30 a.m and his endorsement is in Red Circle B. 21. PW-7 is Constable Farjand Ali. He stated that he was posted as Constable in PS Sadar since 2009. On 25.4.2010, at about 1.35 p.m, one sealed envelope containing special report of case FIR No. 128/10 was handed over to him by the I.O. Pal Singh for handing over the same to ASP Abhishek Dular. PW-7 is Constable Farjand Ali. He stated that he was posted as Constable in PS Sadar since 2009. On 25.4.2010, at about 1.35 p.m, one sealed envelope containing special report of case FIR No. 128/10 was handed over to him by the I.O. Pal Singh for handing over the same to ASP Abhishek Dular. 22. Sub Inspector Hari Singh, was examined as PW-9, who stated that he remained posted as Additional SHO Police Station Sadar, Mandi, H.P.On 24-4-2010, one rukka prepared by Head Constable Pal Singh was received by him through Constable Amar Singh on the basis of which FIR Ext. PW-9/A was registered by him. On the same day, he had re-sealed the parcel with seal "T" at 4 places. He had prepared the sample seal Ex. PW-9/B and handed over the case property to MHC Anil Kumar. He prepared the reseal memo Ex. PW-2/B and completed the NCB-1 form in triplicate and thereafter, he handed over the case property and record pertaining to this case to MHC Anil Kumar. On completion of investigation and receipt of the report of FSL Ex. PX, he prepared the challan for presenting in the court. 23. In the present case there are various infirmities and inconsistencies in the statements of the witnesses as recorded by the prosecution, which itself are sufficient to demolish the case of the prosecution. 24. PW-8 ASI Pal Singh, the Investigating Officer stated that all the memos were written by Constable Dhameshwar Singh at his instance. However, the statements under Section 161 Cr.P.C were recorded by him. To the contrary, PW-4 Constable Dhameshwar Singh has stated in his cross examination that all the documents were prepared by the I.O. himself. The story as projected by the prosecution itself comes under cloud the moment, the statements of PW-8 and PW-4 are read in its entirety. 25. PW-8 states that all the memos were written by Constable Dhameshwar Singh, whereas PW-4 states that all the documents were prepared by the I.O. This is material and glaring inconsistency in the statements of the witnesses of the spot. 26. Another inconsistency in the statements of the official witnesses is that PW-5 HHC Amar Singh has stated in his statement that seal after its use was handed over to him. On the contrary, PW-4 Constable Dhameshwar Singh has stated that seal after its use was handed over to him. 27. 26. Another inconsistency in the statements of the official witnesses is that PW-5 HHC Amar Singh has stated in his statement that seal after its use was handed over to him. On the contrary, PW-4 Constable Dhameshwar Singh has stated that seal after its use was handed over to him. 27. Above all, PW-8 ASI Pal Singh has stated that seal after its use was handed over to Constable Dhameshwar Singh. These three material witnesses, who have been examined by the prosecution to prove its case have stated contrary to each other and more importantly, it is not clear to whom seal ‘A’ after its use was handed over. Similarly, neither PW-4 Constable Dhameshwar Singh nor PW5 Amar Singh had produced the seal A in the Court. 28. This important fact creates doubt with regard to the case as put forth by the prosecution. 29. It is the case of the prosecution that on 24.4.2010, the police officials in order to control traffic and prevent the crime left police station Sadar Mandi in official vehicle towards Bindravani. It is admitted by PW-4 ,PW-5 and PW-8 that the alleged recovery was effected on Chandigarh Manali National Highway No.21 which is a busy road and vehicles ply over the same frequently. PW-4 has admitted that from 6 a.m. to 8.45 a.m. in the morning, they checked 10-15 vehicles. PW-5 has also stated in his cross-examination that they left the police station at 5.45 a.m. in official vehicle and before apprehending the accused, they kept on checking the vehicles. However, surprisingly, no independent witness has been examined from the spot, though it has been tried to be projected by the prosecution that no person was ready to become a witness in the present case, however, such story seems to be improbable and untrustworthy. Being a National highway No.-21, it is a busy road. Many vehicles ply from each side on the busy road and it is highly improbable that the police officials found no independent witness on the spot. The explanation given for not associating the independent witnesses does not seem to be correct and the story as projected seems to be highly improbable. 30. Many vehicles ply from each side on the busy road and it is highly improbable that the police officials found no independent witness on the spot. The explanation given for not associating the independent witnesses does not seem to be correct and the story as projected seems to be highly improbable. 30. More so, it has come on record in the statements of PW-4 C. Dhameshwar Singh and PW-5 HHC Amar Singh and ,PW-8 ASI Pal Sigh that on the very same day they had apprehended one another person in case FIR No. 129/10 which was registered against the accused in that case. Being a busy road, the prosecution ought to have associated some independent witness in order to corroborate and prove its case beyond reasonable doubt. 31. The prosecution has placed on record the consent recovery memo Ext.PW4/B and the perusal of the same clearly reveals that it was attested by PW-8 ASI Pal Singh and was signed by Constable Sanjeev Kumar and Constable Dhameshwar Singh . On the said memo on the top,case FIR No. 128/10 is mentioned in blue ink. Save and except the consent memo Ext.PW4/B, in all the proceedings, FIR has been mentioned with red ink, which is clear from a perusal of Ext.PW2/B, Ext.PW4/A, Ext.PW4/D , Ext.PW4/E. Therefore, except the consent memo Ext.PW4/B, case FIR in all the proceedings has been mentioned with red ink. The consent memo of the personal search was prepared by the I.O., whereas the entire memo is not written by the I.O. himself however entire proceedings were written with the same ink. It shows that case FIR had already been mentioned in it and it was not prepared at the spot. In case Ext.PW4/B had been prepared at the spot, in that event, the place of FIR ought to have been left blank by the I.O. because the FIR number was to be entered after the receipt of the FIR, but, this chain of event is missing in the present case. The perusal of the consent memo Ext.PW4/B shows that the prosecution has tried to prove that an option was given to the accused by asking him whether he wanted to be searched before the Magistrate or the Gazetted Officer and he has written in his on hand that he wants to give his search to the police. The perusal of the consent memo Ext.PW4/B shows that the prosecution has tried to prove that an option was given to the accused by asking him whether he wanted to be searched before the Magistrate or the Gazetted Officer and he has written in his on hand that he wants to give his search to the police. 32 The accused wrote in hindi that he wanted to give his search to the police. There is no explanation as to why the accused opted to be searched by the police. He was only given an option to be searched before a Magistrate or a Gazetted Officer. Therefore, he could have only chosen to be searched before a Magistrate or a Gazetted Officer. If no option to be searched by the police was given to the accused, he could not have opted to be searched by the police.He could have declined to be searched by the Magistrate or the Gazetted Officer, but without being informed that he could be searched before the police, he could not have mentioned specifically that he wanted to be searched before the police. This shows that the accused was given an option to be searched by the police as well, and that is why he opted to be searched by the police. It was laid down by the Hon’ble Apex Court in the State of Rajasthan Vs. 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. 33. 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. This position was reiterated by the Hon’ble Apex Court in Dayalu Kashyap vs.State of Chhattisgarh , (2022) 12 SCC 398 : 2022 SCC.OnLine SC 334. 34. A similar view was also taken by the Hon’ble Apex Court in Ranjan Kumar Chadha v. State of H.P. , 2023 SCC OnLine SC 1262: AIR 2023 SC 5164 , wherein it was observed as under: “27. 34. A similar view was also taken by the Hon’ble Apex Court in Ranjan Kumar Chadha v. State of H.P. , 2023 SCC OnLine SC 1262: AIR 2023 SC 5164 , wherein it was observed as under: “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 ..… 35 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 search the accused 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 Section 50 . 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. 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. 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 20 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 suspectbeing apprised by the empowered officer of his right under of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view thateven 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. 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. 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 it is permissible to convey orally that the suspect has a right to be 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 the 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. (vii) Section 50 is applicable only in case of search of the 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, 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 for the reason that 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. (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.” 36. From the perusal of the judgment of the Hon’ble Apex Court in the case of Ranjan Kumar Chadha especially para 66(ii) it has been held by the Hon’ble Apex Court that 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. Similar view was taken by this Court in Cr.Appeal No. 362 of 2023, titled as Charanjit Singh vs. State of H.P., decided on 05.05.2025 and affirmed by the Hon’ble Apex Court in Special Leave Petition (Criminal) Diary No.(s) 57775/2025, titled as State of H.P. vs. Charanjit Singh, decided on 14.11.2025. 37. From the aforesaid legal principle as laid down by the Hon’ble Apex Court there is non compliance of Section 50 of the NDPS Act. In the present case as per consent memo Ext. 37. From the aforesaid legal principle as laid down by the Hon’ble Apex Court there is non compliance of Section 50 of the NDPS Act. In the present case as per consent memo Ext. PW4/B option was given by the police officials to the accused/respondent to be searched before the Magistrate or the Gazetted Officer. Respondent gave his concent to be searched by the police. The Hon’ble Apex Court in para 65 of the judgment in Ranjan Kumar Chadha’s case has held that 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.” 38. The Hon’ble Apex Court has held that this would lend more credence to the compliance of Section 50 of the NDPS Act.However, the said compliance in the present case is missing. Therefore, on that ground the prosecution has failed to prove the guilt of the respondent. 39. It is an admitted fact that on the very same day case FIR No. 129/10 was also registered by the Police Official. PW-4 Constable Dhameshwar Singh during cross- examination stated that the respondent remained in custody of Constable Sanjeev Kumar w.e.f 11 .00 a.m. to 3.30 p.m. PW-5 Amar Singh has also deposed that accused remained in his custody. The aforesaid FIR No. 129/10 was also registered by the same police official i.e PW-8 Pal Singh. In FIR No. 129/10, it has been mentioned that the accused in that case namely Agarsen was apprehended at about 10.30 a.m. and in that case also rukka was handed over to PW-5 Amar Singh. In the present case, he deposed that he reached at the place of recovery at 11.00 a.m. and as per Investigating Officer, custody of the accused was handed over to PW-5 Amar Singh in case FIR No. 129/10, rukka was also handed over to him. In the present case, he deposed that he reached at the place of recovery at 11.00 a.m. and as per Investigating Officer, custody of the accused was handed over to PW-5 Amar Singh in case FIR No. 129/10, rukka was also handed over to him. The story as has been tried to be projected by the prosecution is unbelievable as one person cannot perform two duties at the same time and it casts serious doubt on the prosecution story. 40. In the present case, the State has failed to point out errors in the judgment passed by the learned Court below. It is well settled principle of law that in order to prove its case, the prosecution must establish the guilt of the accused from the oral as well as documentary evidence placed on record. It is a primary principle that accused ‘must be’ and not merely ‘may be’ proved guilty before a Court can convict the accused. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. An accused can not be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. 41. The Hon’ble Apex Court, in its various decisions, has held that in the case of acquittal, scope of inteference in an appeal against acquittal is very limited. The Hon’ble Apex Court has repeatedly held that unless it is found that the view taken by the Court is impossible or perverse, only in those circumstances, interference can be done by the appellate Court. It is not permissible to interfere with the findings of acquittal and equally, if two views are possible, it is not permissible to set aside an order of acquittal, merely because the appellate court finds the way of conviction to be more probable. The intereference would be warranted only if the view taken is not possible at all. 42 The Hon’ble Supreme Court in Criminal Appeal No. 2119/2010, titled as State of Rajasthan vs. Kistoora Ram , decided on 28.7.2022, has held as under:- 8. “The scope of interference in an appeal against acquittal is very limited. The intereference would be warranted only if the view taken is not possible at all. 42 The Hon’ble Supreme Court in Criminal Appeal No. 2119/2010, titled as State of Rajasthan vs. Kistoora Ram , decided on 28.7.2022, has held as under:- 8. “The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 43 Similarly, the Hon’ble Supreme Court in case Constable 907 Surendra Singh and another vs. State of Uttarakhand (2025) 5 Supreme Court Cases 433 has held as under:- 23. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka6, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: (SCC pp.163-64, para 38-41) “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC(Cri)31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp.482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case7, SCC p.432,para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code 1973 puts no limitation restriction on condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Variousexpressions, such as, “substantial and compelling reasons”,“good and sufficient grounds” “very strong circumstances ”,“distortedconclusions”,“glaring mistakes”,etc. Are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.’ ” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. … 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/ omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 44. In the case of Ballu @ Bal Ram @ Balmukund and another Versus The State of Madhya Pradesh 2024 (4) SCALE, 513 the Hon’ble Supreme Court has held as under:- “9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. In the case of Ballu @ Bal Ram @ Balmukund and another Versus The State of Madhya Pradesh 2024 (4) SCALE, 513 the Hon’ble Supreme Court has held as under:- “9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warrated Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below: “13.In case of Sadhu Saran Singh vs. State of U.P.(2016) 4 SCC 397, the Supreme Court has held that:- "In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded." 14. Similar, In case of Harljan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665 , the Supreme Court has held that:- "No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same.” 45. The Hon’ble Supreme Court in Special Leave to Appeal (Crl.) Dy. The Hon’ble Supreme Court in Special Leave to Appeal (Crl.) Dy. 23115/2025, titled as Brijesh Singh vs. State of U.P. , decided on 18.6.2025, has held as under:- “Law is well settled that interference in an appeal against acquittal should be made only if the view taken by the Courts below is perverse or if no two views are possible and the only logical conclusion from the evidence is to record the guilt of the accused. In the present case, we do not find any view other than that taken by the trial Court and affirmed by the High Court acquitting the respondents of the charges is permissible.” 46. Perusal of judgments as passed by the Hon’ble Supreme Court demonstrates that scope of interference in an appeal against acquittal is very limited. It has been held that prosecution in order to prove its case must establish the guilt of the accused beyond all reasonable doubts. 47. In the present case, the prosecution has failed to point out errors in the judgment passed by the learned Additional Sessions Judge, (II), Mandi. The learned Court below has rightly appreciated the oral as well as documentary evidence placed on record after thrashing out the entire evidence and material for the determination of the case and thus has rightly acquitted the respondent of the charges framed against him. Therefore, we are of the considered opinion that the learned Court below has rightly passed the judgment of acquittal in favour of the respondent. The view taken by the learned Additional Sessions Judge(II), Mandi is plausible as well as possible one. 48. Consequently, the instant appeal is dismissed, so also the pending application(s), if any. 49. The bails bonds furnished by the respondent are discharged. 50. Records be sent down.