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2026 DAILYLAW 16786 (HP)

Sonu @ Ajay Kumar v. State of H. P.

2026-01-01

Rakesh Kainthla

body2026
JUDGMENT : RAKESH KAINTHLA, J. 1. The present appeal is directed against the judgment dated 24.11.2014, passed by learned Special Judge-III, Kangra at Dharamshala, District Kangra, H.P., (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘the ND&PS Act’) and was sentenced to undergo rigorous imprisonment for one year, pay a fine of Rs.10,000/- and in default of payment of fine to undergo further simple imprisonment for three 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 against the accused for the commission of an offence punishable under Section 20 of the ND&PS Act. It was asserted that ASI Balbir Singh (PW11) and ASI Prem Chand (not examined) were investigating into the FIR No. 38 of 2009 dated 13.02.2009 registered at Police Station Dharamshala for the commission of an offence punishable under Section 20 of the NDPS Act at new taxi stand Dharamshala on 13.02.2009 at 5:50 P.M. Prabhat Singh disclosed during the interrogation that accused Sonu Kumar was selling charas near HRTC work shop, Dharamshala, and a huge quantity of charas could be recovered by his search. The information was reduced into writing (Ext.PW5/A) and was sent to the Superintendent of Police Kangra through Constable Tungal Singh (PW5). ASI Balbir Singh (PW11), Constable Suman Kumar (PW2) and HHG Madan Lal (not examined) went towards the HRTC workshop in the official vehicle being driven by HHC Ramesh Chand (PW1). They found the accused, Sonu Kumar alias Ajay Kumar, on the left side of the road. ASI Balbir Singh told the accused that he had a right to be searched before a Magistrate or the Gazetted Officer. The accused consented to be searched by the police vide memo (Ext.PW2/A). The police gave their personal search to the accused, and nothing incriminating was found in their possession. Memo (Ext.PW2/B) was prepared. The personal search of the accused was conducted. A white plastic envelope containing 20 sticks of charas was recovered from the jacket of the accused. The accused consented to be searched by the police vide memo (Ext.PW2/A). The police gave their personal search to the accused, and nothing incriminating was found in their possession. Memo (Ext.PW2/B) was prepared. The personal search of the accused was conducted. A white plastic envelope containing 20 sticks of charas was recovered from the jacket of the accused. The police checked the sticks and confirmed them to be charas. Two samples of 25 grams each were separated on the spot for chemical analysis. These were put into two separate polythene envelopes. The remaining 140 grams of charas were put in the plastic envelope. The plastic envelope was put in the cloth parcel. Each parcel was sealed with three impressions of seal ‘A’. The seal impression (Ext.PW11/A) was taken on a separate piece of cloth, and the seal was handed over to witness Suman Kumar (PW2) after its use. NCB-1 Form (Ext.PW11/E) was filled in triplicate, and a seal impression was put on the form. Rukka (Ext.PW11/D) was prepared and was handed over to HHC Ramesh Chand (PW1) with a direction to carry it to the Police Station. ASI Balbir Singh (PW11) investigated the matter. He prepared the site plan (Ext.PW11/B) and recorded the statements of witnesses as per their version. HHC Ramesh Chand, handed over the rukka to Rajiv Attri (PW12), who registered the FIR (Ext.PW12/A). ASI Balbir (PW11) arrested the accused vide memo (Ext.PW2/D). He prepared the memo of personal search (Ext.PW2/E). He produced the accused, case property and the case file before Rajiv Attri (PW12) in the Police Station. Rajiv Attri (PW12) checked the parcels and found the seals to be intact. He resealed each parcel with seal impression ‘T’. He obtained the seal impression ‘T’ on the NCB-1 Form and a separate piece of cloth (Ext.PW12/B). He prepared the resealing certificate (Ext.PW12/C). He handed over the case property to MHC Rajinder Kumar (PW10), who made an entry in the Malkhana register at Sl. No. 31/19 (Ext.PW10/C). MHC Rajinder Kumar (PW10) sent two sample parcels of charas, a copy of FIR and NCB-1 Form to SFSL Junga through Constable Vipin Kumar (PW3) vide R.C. No. 17/21 (Ext.PW10/D). Vipin Kumar handed over all the articles at SFSL Junga and handed over the receipt to Rajinder Kumar (PW10) on his return. Special report (Ext.PW5/B) was prepared and was sent to Additional Superintendent of Police Kangra on 15.02.2009 at 10:30 AM. Vipin Kumar handed over all the articles at SFSL Junga and handed over the receipt to Rajinder Kumar (PW10) on his return. Special report (Ext.PW5/B) was prepared and was sent to Additional Superintendent of Police Kangra on 15.02.2009 at 10:30 AM. Additional Superintendent of Police, Kangra, made an endorsement on the special report and handed it over to his Reader, HHC Shashi Kumar (PW7), who made an entry in the register No.4 (Ext.PW5/B) and retained the special report on his record. The result of the analysis (Ext.PA) was issued, mentioning that the exhibit was an abstract of cannabis and a sample of charas. The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the ND&PS Act, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined 12 witnesses to prove its case. HHC Ramesh Chand (PW1) and Constable Suman Kumar (PW2) are the official witnesses to the recovery. HHC Vipin Kumar (PW3) carried the samples to SFSL Junga. Rajesh Singh (PW4) is an independent witness to the recovery who did not support the prosecution's case. HHC Tungal Singh (PW5) accompanied the police party and brought the information recorded under Section 42 of the NDPS Act to the Superintendent of Police, Dharamshala. HHC Arun Kumar (PW6) carried the special report to the Chief Judicial Magistrate, Kangra. HHC Shashi Kumar (PW7) was working as a Reader to the Additional Superintendent of Police to whom the special report and information under Section 42 were handed over. ASI Jitender Kumar (PW8) partly investigated the matter. Inspector Nek Ram (PW9) prepared the challan. HC Rajinder Kumar (PW10) was working as MHC with whom the case property was deposited. ASI Balbir Singh (PW11) effected the recovery and investigated the matter. Rajiv Attri (PW12) resealed the parcel and signed the FIR. 5. The accused in his statement recorded under Section 313 of Cr. P.C. denied the prosecution's case in its entirety. He stated that a false case was made against him, and the witnesses deposed falsely against him. 6. Learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. 5. The accused in his statement recorded under Section 313 of Cr. P.C. denied the prosecution's case in its entirety. He stated that a false case was made against him, and the witnesses deposed falsely against him. 6. Learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. The mere fact that independent witness Rajesh Singh (PW4) was declared hostile was not sufficient to discard the prosecution's case. The failure to join independent witnesses was not fatal to the prosecution's case. The integrity of the case property was duly established. The requirements of Sections 42 and 50 of the NDPS Act were satisfied. The minor contradictions in the statements of witnesses were not sufficient to discard the prosecution's case. Therefore, the learned Trial Court convicted and sentenced him as aforesaid. 7. 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 on record. The testimonies of prosecution witnesses were highly contradictory. The Investigating Officer was present near the new Taxi stand in Dharamshala at the time of receiving the secret information. He did not make any effort to join any independent witnesses. There was a discrepancy in the time in the statements of the witnesses and the rukka. HHC Tungal Singh (PW5) stated that he had handed over the information under Section 42 of the NDPS Act to the Superintendent of police at 4:45 PM, whereas the information was received at 5:50 PM. This showed that the investigation was defective. The sample was received on 17.02.2009 as per the report of SFSL (Ext.PA). Vipin Kumar (PW3), on the other hand, stated that the sample was handed over by him on 16.02.2009 at FSL Junga. The NCB-1 Form mentions the quantity of the charas recovered from the accused as 60 grams, which is contrary to the prosecution's case that 190 grams of charas was recovered. One independent witness had not supported the prosecution's case, and the learned Trial Court erred in relying upon the prosecution's version. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Mr. Rajesh Mandhotra, learned counsel for the appellant/accused, and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State. 9. Mr. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Mr. Rajesh Mandhotra, learned counsel for the appellant/accused, and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State. 9. Mr. Rajesh Mandhotra, learned counsel for the appellant/accused, submitted that as per the prosecution, the police had received secret information at the taxi stand in Dharmshala. No effort was made to join any independent witness. There is a discrepancy regarding the time, which makes the whole prosecution case suspect. The third option was given to the accused, which is impermissible and made the recovery inadmissible. The NCB-1 form mentioned the quantity of charas recovered from the accused as 60 grams, whereas the quantity of recovered charas, as per the testimonies of the witnesses, was 190 grams. There is a discrepancy regarding the date of deposit of the sample at SFSL Junga. All these circumstances create a reasonable doubt regarding the prosecution's case. The accused is entitled to the benefit of doubt, which was wrongly denied to him. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He relied upon the judgments of this Court in Lata Deen vs. State of H.P. Cr. Appeal No. 387 of 2020 decided on 10.05.2024 in support of his submission. 10. Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State, submitted that the requirements of Section 50 of the NDPS Act are not attracted to the present case because the recovery was made from the jacket and not from the person of the accused. The police had effected two recoveries, and by mistake, the NCB-1 form in the second FIR was placed in the file of the present case. The NCB-1 form should not be used to discard the testimonies of the witnesses who corroborated each other. Learned Trial Court had rightly convicted and sentenced the accused, and no interference is required with the judgment and order passed by the learned Trial Court. Hence, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. Learned Trial Court had rightly convicted and sentenced the accused, and no interference is required with the judgment and order passed by the learned Trial Court. Hence, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. It is the admitted case of the prosecution that the recovery was made from the jacket being worn by the accused. It was laid down by the Hon’ble Supreme Court in State of H.P. vs. 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, a 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 normally it is 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. 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 body with clothing, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothing and also footwear. 13. Therefore, clothes are included in the definition of a person as per the judgment of the Hon’ble Supreme Court, and the submission that the recovery effected from the jacket does not attract Section 50 of the NDPS Act cannot be accepted. 14. Section 50 of the NDPS 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 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 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. 15. Thus, the police were required to comply with Section 50 of the NDPS Act and to inform the accused of his right to be searched before a Magistrate or Gazetted Officer. 16. The consent memo (Ext.PW2/A) mentions that ASI Balbir Singh had received secret information that the accused was selling charas, and ASI Balbir suspected that the accused had kept charas in the clothes worn by him. ASI Balbir wanted to search the accused, and the accused should inform in writing whether he wanted to be searched before a Magistrate, a Gazetted Officer or the Police Officials. It was his legal right. 17. Therefore, the consent memo shows that the accused was told that he had three options to be searched. He could be searched before the Magistrate, Gazetted Officer or the police official. Section 50 of the NDPS Act specifically deals with the option to be searched before a Magistrate or a Gazetted Officer. It does not provide a third option to be searched by the police. It was laid down by the Hon’ble Supreme Court in State of Rajasthan Vs. Parmanand & another, (2014) 5 SCC 345 , that Section 50 of the NDPS Act 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 laid down by the Hon’ble Supreme Court in State of Rajasthan Vs. Parmanand & another, (2014) 5 SCC 345 , that Section 50 of the NDPS Act 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 of 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 Section 50(1) of the NDPS Act does not provide for it, and when such an option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated.” 18. 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: “Effect of giving the 3rd option: 3(iii)(e). 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: “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 case 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 the recovery of illicit drugs, etc., seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used, a very strict view of Section 50 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 Section 50 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 Section 50 of the NDPS Act has no application, but as the personal search of the accused persons was also conducted, certainly Section 50 of the NDPS Act is applicable. In fact, Section 50 of the NDPS Act has a purpose and communication of the said right, which is ingrained in Section 50, 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. Section 50 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 aware the accused 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 Section 50 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 Section 50 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 Section 50 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, Section 50 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 in no way can 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 to 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.” 19. It was held in Dayalu Kashyap v. State of Chhattisgarh, (2022) 12 SCC 398 : 2022 SCC OnLine SC 334, that giving a third option to the accused would vitiate 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, (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, (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.” 20. 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. Section 50 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, 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 Section 50….. 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 Section 50….. 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.” 21. 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 an 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 Section 50 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 Section 50(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 Section 50 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 Section 50 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 Section 50 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 Section 50 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 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. (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 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.” 22. In the present case, the police had given the third option to be searched before the police official. Therefore, there was a violation of Section 50 of the NDPS Act. 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 Section 50 of the NDPS Act. It was observed:– “29. …… We have no hesitation to hold that, insofar 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.” 23. This position was reiterated in Arif Khan @ Agha Khan vs. 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. 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, 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 Section 50 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 Section 50 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 the benefit to seek his acquittal.” 24. Thus, the conclusion of the learned Trial Court that there was sufficient compliance with Section 50 of the NDPS Act is not correct. The prosecution has failed to prove the compliance of Section 50 of the NDPS Act, and it cannot rely upon the recovery effected as a result of a search conducted in violation of Section 50 of the NDPS Act. 25. The memo of personal search (Ext.PW2/C) shows that 190 grams of charas was recovered from the accused. The prosecution has failed to prove the compliance of Section 50 of the NDPS Act, and it cannot rely upon the recovery effected as a result of a search conducted in violation of Section 50 of the NDPS Act. 25. The memo of personal search (Ext.PW2/C) shows that 190 grams of charas was recovered from the accused. The NCB-1 Form (Ext.PW11/E), on the other hand, mentioned that ASI Balbir had recovered 60 grams of charas on 13.02.2009 at 7:15 PM at the HRTC workshop. There is no explanation regarding the discrepancy in the NCB-1 Form. The mention of 60 grams of charas in the NCB-1 Form will make the recovery doubtful. 26. It was submitted that two cases of charas were detected by ASI Balbir Singh (PW11), and by mistake, the NCB-1 Form of another case was annexed to the present case. This submission cannot be accepted. The NCB-1 Form specifically mentions FIR No. 38 of 2009, which is the FIR number in the present case. It mentions the place of recovery near the HRTC workshop, which is the place where the recovery was effected in the present case. ASI Balbir Singh (PW11) did not state that he had detected two cases of charas on the date of the incident and had placed the NCB-1 Form by mistake in the present case. Thus, the explanation that the wrong NCB- 1 form was placed in the present case cannot be accepted. 27. Rukka (Ext.PW11/D) specifically mentions that ASI Balbir Singh was investigating FIR No. 37 of 2009 on 13.02.2009 at 5:50 PM at the new taxi stand, Dharmshala, when the information was received. The information (Ext.PW5/A) contains the endorsement regarding the receipt of the information and mentions the time as 5:45 PM. Both these times were noticed while writing the document and cannot be incorrect. HC Tungal Singh (PW5) carried the information to the Additional Superintendent of Police. He stated that he had handed over the information to the Additional Superintendent of Police, Dharmshala, in his office at 4:45 PM. He was not cross-examined to clarify this part of his testimony, which means the prosecution had accepted his statement as correct. HC Tungal Singh (PW5) carried the information to the Additional Superintendent of Police. He stated that he had handed over the information to the Additional Superintendent of Police, Dharmshala, in his office at 4:45 PM. He was not cross-examined to clarify this part of his testimony, which means the prosecution had accepted his statement as correct. The fact that he had handed over the special report to the office of the Superintendent of Police, Dharmshala, at 4:45 PM and that the information was received at 5:45 PM, would make the prosecution suspect that the information was received at 5:50 PM. 28. Learned Trial Court failed to advert to these aspects and was impressed by the consistencies in the statements, which were not sufficient. Therefore, the judgment and order passed by the learned Trial Court cannot be sustained. 29. In view of the above, the present appeal is allowed, and the judgment and order passed by the learned Trial Court are set aside, and the accused is acquitted of the charged offence. The fine amount, if deposited by the appellant/accused, be refunded to him after the expiry of the statutory period of limitation in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Apex Court. 30. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the appellant/accused is directed to furnish his personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/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/accused, on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court. 31. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.