HP High Court Upholds NDPS Acquittal After Gazetted Officer Gave Unauthorised Second Search Option
A Division Bench of the Himachal Pradesh High Court dismissed the State's appeal against Ram Lal's acquittal, holding that a second search option given by the Gazetted Officer violated Section 50 of the NDPS Act and rendered the recovery of 350 grams of charas inadmissible.
The State of Himachal Pradesh challenged the acquittal of Ram Lal, who had been tried before the Special Judge-II, Kullu for alleged possession of 350 grams of charas recovered from his sports shoes on 23 February 2013. The Special Judge acquitted him on 9 March 2015, and the State filed Criminal Appeal No. 409 of 2015 under Section 378 of the Code of Criminal Procedure. On 23 July 2026, a Division Bench of Justice Vivek Singh Thakur and Justice Ranjan Sharma dismissed the appeal, affirming the acquittal on multiple grounds, principally that the Gazetted Officer's act of calling a fresh search option from the accused — after the accused had already exercised his right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 — was impermissible and vitiated the entire search and recovery.
The Prosecution's Case and the Trial Court's Acquittal
According to the prosecution, on the evening of 23 February 2013, a police party led by PW-2, ASI Jagjit Singh, was patrolling in an official vehicle. At village 16 Miles at about 7:45 p.m., the party noticed Ram Lal inside a rain shelter. On seeing the police, he stood up, turned his back and tried to cover his face. This behaviour aroused suspicion, and he was detained.
PW-2 ASI Jagjit Singh issued a consent memo, Ext. PW-1/A, giving Ram Lal the option to be personally searched before a Magistrate or a Gazetted Officer under Section 50 of the NDPS Act. Ram Lal consented, vide Ext. PW-1/B, to be searched before a Gazetted Officer. Acting on directions of PW-7, SDPO Sanjeev Chauhan, the police party took Ram Lal to Police Station Manali, approximately 12 kilometres from village 16 Miles, arriving at about 8:20 p.m. At the police station, PW-7 SDPO Sanjeev Chauhan then asked Ram Lal a second, fresh question: whether he wanted to be searched before the SDPO himself or someone else. A search followed, and 350 grams of charas was recovered from inside Ram Lal's shoes. An FIR, Ext. PW-8/A, was registered under Section 20 of the NDPS Act, the contraband was sent to the Forensic Laboratory at Junga, and a challan was filed.
The Special Judge framed the charge on 20 April 2013. Ram Lal pleaded not guilty and claimed trial. After appreciating the evidence, the trial court acquitted him on 9 March 2015, rejecting the prosecution case.
What Section 50 of the NDPS Act Requires
Section 50 of the NDPS Act conditions personal searches. Sub-section (1) requires that when an empowered officer is about to search a person, he must, if that person so requires, take the person to the nearest Gazetted Officer of any department mentioned in Section 42, or to the nearest Magistrate. Sub-section (3) provides that the Gazetted Officer or Magistrate before whom the person is brought must direct a search only if reasonable grounds for it exist; otherwise the person must be discharged.
The Division Bench traced the law through a series of Supreme Court decisions. The Constitutional Bench in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, held it imperative for the investigating officer to inform the suspect of the right to be searched before a Gazetted Officer or Magistrate, and that omission causes inherent prejudice. The Constitutional Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, confirmed that this obligation is mandatory and requires strict compliance.
In Suresh and others v. State of Madhya Pradesh, (2013) 1 SCC 550, the Supreme Court held that merely asking an accused to consent to search by police, rather than informing him of his right to be searched before a Gazetted Officer or Magistrate, does not satisfy Section 50. In State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, the Supreme Court held that offering a third option — search before the investigating officer or a member of the raiding party in addition to the two designated officers — frustrates the protection in Section 50(1) and vitiates the search.
The Supreme Court in Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 SCC Online SC 1262, summarised the requirements: only two options (Gazetted Officer or Magistrate) are to be offered; the officer giving the option and the Gazetted Officer before whom the search is conducted must be independent; an endeavour must be made to take the suspect before the nearest Magistrate; and any contraband recovered in violation of Section 50 is inadmissible. This position was reiterated in State of Himachal Pradesh v. Surat Singh, 2026 SCC Online SC 376.
Why the Gazetted Officer's Second Option Was Impermissible
The bench identified the core procedural defect clearly. Ram Lal had already exercised his right under Section 50 by consenting, via Ext. PW-1/B, to be searched before a Gazetted Officer. That consent was given at village 16 Miles in response to the option memo Ext. PW-1/A issued by PW-2 ASI Jagjit Singh, the empowered-authorised officer. Once that option was exercised, the role of PW-7 SDPO Sanjeev Chauhan, the Gazetted Officer, was limited under Section 50(3): to determine whether reasonable grounds for search existed, and if so, to direct the search.
Instead, PW-7 SDPO Sanjeev Chauhan asked Ram Lal a further question on arriving at Police Station Manali — whether he wanted to be searched before PW-7 himself (a police officer) or someone else. The bench held that Section 50 confers the authority to give an option on the “empowered-authorized officer” alone, and does not authorise the Gazetted Officer to re-exercise that function. By doing so, PW-7 assumed a role statutorily assigned to the investigating officer, and in offering a search before a police officer as one of the choices, introduced an option the statute does not recognise.
The bench further held that SHO PW-8 Neel Chand was also present during the personal search, constituting participation by interested persons in the search. The presence of police officials not contemplated by the statute compounded the procedural infirmity.
This position was consistent with how similar fact patterns had been dealt with in two recent Division Bench decisions of the same court: State of Himachal Pradesh v. Anil Kumar alias Rinku, Criminal Appeal No. 478 of 2015, decided on 25 March 2026, and State of Himachal Pradesh v. Tara Chand, Criminal Appeal No. 406 of 2015, decided on 6 April 2026, both of which had upheld acquittals on analogous grounds.
Failure to Approach the Nearest Gazetted Officer
A separate and independent ground fortified the acquittal. Section 50(1) requires that the suspect be taken to the nearest Gazetted Officer. Evidence on record showed that a Fisheries Officer, a Gazetted Officer, was posted at Patlikuhal, which was only 4 to 5 kilometres from village 16 Miles. Police Station Manali, where Ram Lal was ultimately taken, was 12 kilometres away.
PW-2 ASI Jagjit Singh admitted in his deposition that he did not have the contact number of the Fisheries Officer at Patlikuhal. The bench found this explanation inadequate. No evidence was placed on record showing any effort by PW-2 to contact the Fisheries Officer. The investigating officer had instead acted on the directions of the senior officer, PW-7 SDPO, and taken Ram Lal to Manali. By abdicating his statutory discretion to a higher police authority, the investigating officer violated Section 50(1) and failed to comply with the Supreme Court's direction in Ranjan Kumar Chadha that an endeavour must be made to take the suspect before the nearest Magistrate.
Additional Infirmities in the Prosecution Case
The bench catalogued several further failures in the prosecution's evidence, each of which independently weakened the case.
On independent witnesses: PW-2 ASI Jagjit Singh stated in cross-examination that he had sent HHC Lal Singh No. 134, a member of the patrolling party, to look for independent local witnesses. PW-1 HC Rakesh Kumar, however, contradicted this account, deposing that no effort was made to call local witnesses. The prosecution did not examine HHC Lal Singh.
HC Narayan Chand No. 78 was present at village 16 Miles, was a witness to the consent memo Ext. PW-1/A and Ext. PW-1/B, and was present at the time of the alleged recovery. He was given up by the prosecution on 14 July 2014 on the ground that his evidence would be repetitive. The bench found that plea untenable given the grave contradictions in the depositions of the witnesses who were examined. The non-examination of both HC Narayan Chand and HHC Lal Singh, described as key witnesses, was held to further damage the prosecution case.
On the alleged spot: PW-7 SDPO Sanjeev Chauhan deposed in cross-examination that there is no rain shelter in village 16 Miles. PW-1 HC Rakesh Kumar stated that he did not know whether a rain shelter existed at village 16 Miles. With the spot of the interception itself in doubt, and both the members of the patrolling party who could have spoken to it left unexamined, the bench found the prosecution version untrustworthy.
On the photographs of recovery: PW-1 HC Rakesh Kumar stated that photographs of the case property and weighing machine were taken inside Police Station Manali. PW-2 ASI Jagjit Singh said photographs were taken in the SHO's office, where the Gazetted Officer PW-7 SDPO, his table, the case property, and the accused were shown. The photographs themselves, Ext. P-6 to Ext. P-8, contradicted this account: they did not show PW-7 SDPO, his table, or the accused. Additionally, while the NCB Form Ext. PW-2/A recorded the time of recovery as 8:45 p.m. on 23 February 2013, photographs Ext. P-7 and Ext. P-8 depicted the accused in broad daylight, inconsistent with a nighttime recovery.
On the NCB Form: PW-2 ASI Jagjit Singh testified that he had entered Ram Lal's name in NCB Form Ext. PW-2/A. PW-7 SDPO also testified that the form had a column for the offender's name. Inspection of the form showed no such column and no entry of Ram Lal's name, contradicting both witnesses.
Appellate Standard and Dismissal of the State's Contentions
The State had argued that the trial court's findings were based on surmises and conjectures, that the evidence of the prosecution witnesses was erroneously discarded, and that the trial court had wrongly treated PW-7 SDPO Sanjeev Chauhan as a Gazetted Officer. The bench rejected these contentions.
On the characterisation of PW-7: the argument that SDPO Sanjeev Chauhan was not a Gazetted Officer did not assist the State. The bench's conclusion rested on the fact that even if PW-7 was a Gazetted Officer, he had no authority to seek a fresh option from the accused after the accused had already exercised his right before the investigating officer.
On appellate interference: the bench applied the principle, drawn from Khekh Ram v. State of Himachal Pradesh, 2018(1) SCC 202, that a plausible and reasonably convincing view taken by a trial court after appreciating evidence cannot be casually substituted in appellate proceedings. The trial court's view was held to be equally plausible and convincingly reasonable.
The bench summarised eleven distinct grounds on which the prosecution case failed, ranging from the multiple Section 50 violations to the photographic contradictions, and concluded that “graver the offence, stricter is the proof is the foundational rule” had been disregarded by the prosecution in this case.
Order
Criminal Appeal No. 409 of 2015 was dismissed on 23 July 2026. The judgment of the Special Judge-II, Kullu dated 9 March 2015, acquitting Ram Lal in Sessions Trial No. 24 of 2014 (2013), was upheld. The acquittal of Ram Lal was affirmed. All pending miscellaneous applications were disposed of accordingly.