He was offered a third choice the statute does not contain, and the consent memo named the offence before anyone had searched him

Fifteen years after conviction, the Himachal Pradesh High Court acquits on Section 50 of the NDPS Act — a recovery made in breach of it cannot be relied on at all.

Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 gives a person about to be searched one right and one choice. The right is to be told; the choice is between a Gazetted Officer and a Magistrate. The provision is short, and the Supreme Court has repeatedly held that its safeguards are mandatory because of what an NDPS conviction costs.

On 28 September 2026 Justice Rakesh Kainthla allowed an appeal from a conviction under Section 20 on the footing that the choice actually offered was not the one the section provides.

The third option

The police suspected the appellant of carrying contraband and proceeded to search him. A consent memo was prepared.

The difficulty is what it recorded. The appellant was told that his search could be conducted before a Gazetted Officer, before a Magistrate — or before a police officer.

That third alternative has no basis in the statute, and offering it is not a harmless addition. The Court applied State of Rajasthan v. Parmanand, (2014) 5 SCC 345, in which the Supreme Court held it improper for a police officer to tell an accused that a third alternative is available, namely a search before an independent police officer, and held that a joint communication of the right under Section 50 would frustrate its very purport.

The reason the addition matters is practical. A person told he may be searched by the officer standing in front of him, or alternatively by a Gazetted Officer or Magistrate who must be sent for, is being offered the quick option and the slow one. The choice Section 50 creates is between two supervised searches; adding an unsupervised third collapses the protection.

The Court also drew on Ranjan Kumar Chadha, which states the position accurately in the other direction: the investigating officer must give the option of a search before a Magistrate or Gazetted Officer, and if the suspect declines, there is no further obligation and the empowered officer may search him himself. Declining the right is permissible; being offered the wrong menu is not.

A consent memo that knew too much

The second infirmity concerns what the memo said before the search took place.

The consent memo specifically mentioned Section 20 of the NDPS Act. As the Court observed, the Investigating Officer could have had no reason to know that the accused would be found in possession of charas, and so could not have mentioned Section 20 at that stage. The Court applied a Division Bench decision of the same Court, State of H.P. v. Vikram @ Vicky, on that point.

The inference is the obvious one. A document recording consent to a search, which names the offence the search has not yet uncovered, was not prepared when it purports to have been.

The consequence of a breach

The trial court had held there was sufficient compliance with Section 50. The High Court held that conclusion incorrect: the prosecution failed to prove compliance, and it cannot rely upon a recovery effected as a result of a search conducted in violation of Section 50.

That is the settled consequence, and it is a severe one by design. Section 50 is not a rule about the weight of evidence; a recovery made in breach of it is excluded, however incriminating it may be. The prosecution case here rested on the recovery, and with the recovery unavailable there was nothing left.

The judgment also notes that an independent witness examined by the prosecution did not support its case — so the recovery was not independently spoken to either.

The order

The appeal was allowed, the judgment and order of the trial court set aside, and the accused acquitted of the charged offence.

As required by Section 437-A of the Code of Criminal Procedure, now Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant was directed to furnish a personal bond of ₹25,000 with one surety in the like amount within four weeks, effective for six months, with the stipulation that if a Special Leave Petition is filed against the judgment or leave is granted, he will appear before the Supreme Court on receipt of notice. The record was directed to be sent back forthwith. The judgment is marked reportable.

Why these cases keep recurring

The appeal was of 2011 and the conviction earlier still, so the appellant has carried an NDPS conviction for the better part of two decades on a search the Court has now held unlawful.

Nothing in the judgment suggests the charas was not found. What it decides is that the State did not establish its right to look for it in the manner it did — and the NDPS Act, given the sentences it carries, makes that failure fatal rather than merely regrettable. For investigating officers the practical instruction is narrow and has been stated many times: read the section, offer the two options it contains and no others, and do not write the offence into a document prepared before the search.