Shocking That Investigating Officer Without Conducting Search Knew That He Was Carrying Contraband: Himachal Pradesh High Court Upholds Acquittal Of NDPS Accused
The Himachal Pradesh High Court dismissed an Appeal filed by the State against the acquittal of an accused under Section 20 of the NDPS Act.
The Himachal Pradesh High Court upheld the acquittal of an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Court was dealing with an Appeal filed by the State against the acquittal of the said accused under Section 20 of the NDPS Act.
A Division Bench of Justice Tarlok Singh Chauhan and Justice Sushil Kukreja observed, “It is shocking to note that the Investigating Officer admittedly even without conducting search of the person of respondent very well knew that he was carrying the contraband as is evident from the reading of the consent memo (supra).”
The Bench added that it is a case of prior information and not that of chance recovery which requires strict compliance of provisions of the Act.
Senior Additional Advocate General (AAG) Yashwardhan Chauhan represented the Appellant/State while Advocate Yudhvir Singh Thakur represented the Respondent/Accused.
Brief Facts
As per the prosecution case in 2010, when the Police was present on a public road, they noticed the Respondent-accused coming from another side and on seeing the police, he got perplexed and tried to run away from the spot. On suspicion, the accused was nabbed by the police and thereafter he was informed by the Investigating Officer (IO) that the police intended to carry out his personal search. The accused was apprised about his right to be searched either before a Gazetted Officer or a Magistrate.
However, the accused consented to the personal search by the police. After his personal search, one white coloured cloth was found tied around his waist. The police opened the said cloth, in which 500 grams charas was alleged to have been found. Thereafter, an FIR was registered and the accused was produced to face trial. The Single Judge after recording the evidence and evaluating the same, acquitted the accused and hence, the State approached the High Court.
Reasoning
The High Court in view of the above facts, said, “… one of the main grounds which weighed with the learned Special Judge for acquitting the respondent is non-compliance of Section 50 of the Act.”
The Court further noted that the violation of Section 50 of the Act is fatal and the police cannot rely upon the recovery so effected in violation of this Section.
“… the record reveals that the respondent was also told that he could be searched before the police and only then he opted to be searched by the police, which is insufficient compliance with Section 50 of the Act and the prosecution cannot rely upon the recovery effected as a result of search conducted in violation of Section 50 of the Act”, it observed.
The Court also noted that the recovery in this case has been effected from the person of the accused because the witnesses have stated that the accused had tied one piece of cloth around his waist from which 500 grams of charas was recovered, yet none of them has specifically stated that how the IO came to know that the substance found in the said cloth was charas.
“There is nothing in the testimony of the Investigating Officer or the other officials witnesses that he or any one of them had tested the aforesaid substance and on the basis of experience they came to the conclusion that the substance was charas”, it added.
The Court said that none of the prosecution witnesses has stated that the substance recovered from the accused was weighed and then it was found to be 500 grams.
“Lastly and more importantly, the prosecution has failed to comply with the provisions of Section 42 (2) of the Act. … provisions of Section 42(2) of the Act were scrupulously required to be followed. … Since the prosecution has failed to prove mandatory compliance of sections 42(2) and 50 of the Act, which itself is fatal to the prosecution, the other grounds, on which the respondent has been acquitted by the learned Special Judge need not be gone into”, it remarked.
The Court, therefore, concluded that view taken by the Special Judge is possible and plausible one and the same warrants for no interference.
Accordingly, the High Court dismissed the Appeal.
Cause Title- State of Himachal Pradesh v. Vikram alias Vicky (Neutral Citation: 2025:HHC:4601-DB)
Appearance:
Appellant: Sr. AAG Yashwardhan Chauhan, AAG Navlesh Verma, and DAG Raj Negi.
Respondent: Advocate Yudhvir Singh Thakur
