J&K High Court Upholds Heroin Acquittal as Police Failed to Inform Accused of Section 50 NDPS Rights

A Division Bench at Jammu dismissed the State’s acquittal appeal, holding that complete non-compliance with Section 50 of the NDPS Act vitiated the recovery of 680 grams of heroin and rendered the entire prosecution case unsustainable.

The High Court of Jammu & Kashmir and Ladakh at Jammu has dismissed an appeal filed by the State against the acquittal of Mohd. Irfan, who had been tried for possession of 680 grams of heroin under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem, with the judgment authored by Justice Shahzad Azeem, found that the police search party never informed the accused of his statutory right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate. That failure, combined with glaring contradictions among prosecution witnesses, led the bench to confirm the trial court’s judgment of acquittal dated 29 February 2012.

The Prosecution Case and Trial Court Acquittal

On 8 March 2010, at around 5:00 PM, Sub Inspector Doulat Khan (PW-8), In-charge Police Post, Greater Kailash, along with a police party, laid a naka at City Farm, Greater Kailash, on the National Highway. Mohd. Irfan, a resident of Silbula Gool, Tehsil and District Ramban, was intercepted while proceeding from the Kunjwani side. A personal search allegedly yielded a yellow plastic envelope containing 680 grams of heroin from his arm-pit. An FIR was registered and a challan was presented before the Special Judge (Principal Sessions Judge), Jammu.

The prosecution examined 12 of 13 listed witnesses, including PW-6 Raj Singh and PW-7 Jagdish Singh as independent witnesses. Despite this, the trial court acquitted the accused. Its primary ground was that the accused was not given a proper option to be searched before a Gazetted Officer or a Magistrate as required by Section 50 of the NDPS Act. The trial court also found that no written information under Section 42(1) of the NDPS Act was recorded and no copy was sent to the immediate superior officer. Beyond procedural non-compliance, the trial court identified major contradictions in the evidence regarding the colour of the envelope, the place of recovery, the weighing of the contraband, the identity of the officer who conducted the search, the colour of the jacket worn by the accused, the sealing and sampling procedure, and the failure to join independent civilian witnesses.

The State appealed under CRAA No. 51/2012, contending that the trial court had taken a hyper-technical approach and failed to properly appreciate the oral and documentary evidence placed on record.

A Clerical Error in the Charge and Its Consequence

Before reaching the merits, the bench addressed a preliminary irregularity. The trial court had framed the charge with reference to Section 18 of the NDPS Act instead of Section 21, even though the challan and evidence clearly concerned a recovery of heroin from the person of the accused, an offence falling under Section 21. The bench held that a mere wrong mention of a section does not vitiate a trial where the substance of the offence and the underlying facts are clearly discernible from the charge-sheet and evidence. The error was treated as clerical and causing no prejudice to the accused, given that the ingredients of the offence and the punishment structure were materially the same.

Contradictions Among Eye Witnesses on the Search

The bench examined the testimony of the prosecution’s own eye witnesses and found them in direct conflict with each other on the central question of who conducted the personal search and in what circumstances.

PW-3 Kaim Din, a constable, deposed that when the accused tried to run on seeing the police party, he was apprehended and the officer In-charge asked him which officer he wished to be searched by. According to PW-3, the accused opted for a Gazetted Officer, the SDPO arrived at the spot, and on his search, a white-coloured material was recovered from an envelope.

PW-8 Doulat Khan, the In-charge naka and the officer who lodged the FIR, gave a materially different account. He deposed that he himself had recovered the packets from the arm-pit of the accused and that neither the SDPO nor the SHO had conducted the personal search. He stated that after the FIR was lodged, the SHO along with the SDPO reached the spot, whereupon he handed over the packets to the SHO and prepared the seizure memo.

PW-9 Kulwant Singh, the SDPO, corroborated neither version cleanly. He deposed that he received information from the SHO Gangyal that the In-charge Police Post had apprehended the accused and recovered a leather packet wrapped in a yellow envelope during a personal search. The Investigating Officer, PW-13 Ajay Jamwal, corroborated the version of PW-8 and PW-9, confirming that the recovery was made by PW-8 during a personal search conducted by a Non-Gazetted Officer.

The bench noted that the prosecution case, as ultimately established through its own witnesses, was that the contraband was recovered by PW-8 Doulat Khan, a Non-Gazetted Officer, and that the accused was never informed of his right under Section 50 of the NDPS Act.

Section 50 NDPS Act: Mandatory Compliance and Its Breach

The bench framed the core question as whether the search and recovery from the person of the accused was conducted in accordance with the procedure prescribed under Section 50 of the NDPS Act. Section 50 requires that when an empowered officer intends to search a person, that person must be informed of the right to be searched before a Gazetted Officer or a Magistrate.

The bench relied on the Constitution Bench judgment of the Supreme Court in VjaySinh Chandubha Jadeja v. State of Gujarat (AIR 2011 SC 77), which settled that the provisions of Section 50 are mandatory and must be strictly complied with. The empowered officer is required to apprise the person to be searched of this right, and if the suspect so requires, strict compliance is non-negotiable.

Applying that standard, the bench found that the prosecution evidence neither suggested nor proved that the search and recovery were conducted in the presence of a Magistrate or a Gazetted Officer. The police search party did not even apprise the accused of his right under Section 50. The bench described this as “complete non-compliance of the mandatory requirement.”

Contradictions on Weighing the Contraband

Separately, the bench addressed contradictions in the prosecution evidence regarding how the contraband was weighed. PW-2 Rajinder Singh deposed that Hardev Singh was sent to a shopkeeper and weighing stones were brought. PW-8 Doulat Khan, however, deposed that an electronic weighing scale was brought from the shop. The two accounts were irreconcilable.

The bench drew support from a recent Supreme Court judgment in State of Himachal Pradesh v. Surat Singh (2026 SCC Online SC 376), which dealt with similar contradictions about the type of weighing scale used. In that case, the Supreme Court held that such inconsistencies render the prosecution version doubtful and ultimately unacceptable. The bench quoted paragraph 18 of that judgment, which observed that where the testimony of witnesses established that the Investigating Officer departed from the provisions of law, and where the prosecution story about the type of weighing scale used was contradicted by the evidence itself, “the story of prosecution becomes doubtful and ultimately unacceptable.”

Effect of Vitiated Recovery on the Prosecution Case

The bench held that the failure to comply with Section 50 of the NDPS Act rendered the recovery itself vitiated, making the alleged contraband inadmissible in evidence. Once the recovery was held to be vitiated, the entire prosecution case collapsed. There was, in the bench’s view, no justifiable ground to interfere with the trial court’s judgment of acquittal.

The bench expressly concurred with the trial court’s reasoning and found that the trial court had rightly extended the benefit of non-compliance to the accused. The State’s argument that the trial court had adopted a hyper-technical approach was rejected. The non-compliance was not technical; it went to the root of the prosecution case.

Outcome

The Division Bench dismissed CRAA No. 51/2012, filed by the State of J&K through Police Station Gangyal, being devoid of merit. The acquittal of Mohd. Irfan recorded by the Special Judge (Principal Sessions Judge), Jammu on 29 February 2012 stands confirmed. The judgment was pronounced on 3 June 2026 and is marked as reportable.