Mere Assertion That Accused Opted For Search Before Gazetted Officer Does Not Establish Compliance With S.50 NDPS Act: J&K&L High Court
Holding that mere assertion that an accused opted to be searched before a Gazetted Officer does not by itself establish compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the High Court of Jammu & Kashmir and Ladakh has observed that the prosecution must further prove through consistent and reliable evidence that the search was actually conducted before...
Holding that mere assertion that an accused opted to be searched before a Gazetted Officer does not by itself establish compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the High Court of Jammu & Kashmir and Ladakh has observed that the prosecution must further prove through consistent and reliable evidence that the search was actually conducted before or by such officer.
The Court held that where prosecution witnesses give contradictory versions regarding the identity of the officer who conducted the search, the alleged recovery becomes legally unsustainable.
The Court was hearing an acquittal appeal filed by the State against the judgment passed by the Special Judge (Principal Sessions Judge), Jammu, whereby the respondent-accused, Mohd. Irfan, was acquitted of the offence punishable under Section 21 of the NDPS Act.
The trial court had found non-compliance with mandatory statutory safeguards under the NDPS Act and noticed several material contradictions in the prosecution evidence relating to the alleged recovery of heroin from the accused.
A Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem while dismissing the appeal observed,
“... The prosecution has failed to prove that the search and recovery of the contraband (heroin) from the person of the accused was in accordance with the procedure prescribed under Section 50 of the NDPS Act. The non-compliance of this mandatory procedure is fatal to the prosecution case.” The Bench further held that there was “no compliance whatsoever with the mandatory provisions of Section 50 of the NDPS Act and, therefore, the recovery stands vitiated.”
As per record, a police naka had intercepted the accused Irfan and during his personal search, the police claimed to have recovered a yellow plastic envelope containing 680 grams of heroin concealed in his arm-pit. The contraband was seized and the accused was arrested for offences punishable under the NDPS Act. Investigation culminated in the filing of a challan before the competent court.
To establish its case, the prosecution examined twelve witnesses, including police officials forming part of the naka party and two independent witnesses. During trial, the prosecution sought to prove that the recovery had been lawfully effected and that all statutory requirements had been complied with.
The trial court, however, found several infirmities in the prosecution case. It held that the accused had not been properly informed of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. The court further noticed non-compliance with Section 42 of the Act, discrepancies regarding the recovery proceedings, contradictions concerning the colour of the envelope, the place where the contraband was weighed, the identity of the person conducting the search, the sealing procedure and the failure to associate independent witnesses. Consequently, the accused was acquitted.
Aggrieved of the acquittal, the State preferred the present appeal before the High Court.
Court's Observations:
Justice Azeem, writing for the bench observed that the entire prosecution case rested upon the alleged recovery of heroin from the person of the accused. Since the recovery was admittedly effected during personal search, strict compliance with Section 50 of the NDPS Act became indispensable. The Court noted that the principal question requiring determination was whether the search and recovery had been carried out in accordance with the mandatory procedure prescribed under the statute.
The Bench examined the testimony of the prosecution witnesses in detail and found that they were not speaking in one voice on the crucial aspect of who had actually conducted the search.
The Court noted that one of the prosecution witnesses deposed that after the accused was apprehended, he was asked before which officer he wished to be searched. According to this witness, the accused opted for search before a Gazetted Officer. The witness stated that thereafter the SDPO arrived at the spot and conducted the search, resulting in the recovery of the contraband.
However, this version, the court noted, was completely inconsistent with the testimony of the officer who headed the naka party as the officer categorically stated 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.
The Court further noticed that the testimony of the SDPO also failed to support the prosecution version that he had personally conducted the search. The SDPO merely stated that he had received information that the accused had already been apprehended and that recovery had already been effected by the police party.
The Bench found these contradictions to be fundamental rather than trivial. According to the Court, once the prosecution itself claimed that the accused had opted to be searched before a Gazetted Officer, it became incumbent upon it to establish through cogent evidence that such search was actually conducted in the manner contemplated by Section 50. The prosecution's evidence, however, failed to establish this essential fact.
Relying upon the Constitution Bench judgment of the Supreme Court in VijaySinh Chandubha Jadeja v. State of Gujarat, the Court reiterated that the requirements of Section 50 are mandatory and not directory. The empowered officer is required not only to apprise the suspect of his legal right but must also ensure strict compliance if the suspect chooses to exercise that right. The Bench observed,
“... It is imperative for the empowered officer to apprise the person to be searched of his right to be searched before a gazetted officer or a Magistrate. It is equally mandatory for the authorised officer to make the suspect aware of the existence of such right.”
The Court concluded that the evidence led by the prosecution neither suggested nor proved that the search and recovery were conducted before a Magistrate or a Gazetted Officer. On the contrary, the prosecution witnesses gave irreconcilable versions on this vital aspect, making it impossible for the Court to conclude that the statutory safeguard had been honoured, the bench opined.
Apart from the Section 50 violation, the Court found several other discrepancies affecting the credibility of the prosecution case. There were contradictions regarding the colour of the envelope in which the alleged contraband was kept, the precise place where the substance was weighed, whether an electronic weighing scale or traditional weighing stones were used and other procedural aspects relating to seizure and sampling.
Referring to the recent Supreme Court judgment in State of Himachal Pradesh v. Surat Singh (2026 SCC Online SC 376), the Bench observed that contradictions relating to the weighing process and seizure procedure are not inconsequential in NDPS prosecutions and may render the prosecution version doubtful.
The Court observed that the cumulative effect of the contradictions, coupled with the failure to establish compliance with Section 50, completely undermined the prosecution case. It held,
“... The police search party miserably failed even to apprise the accused of his right under Section 50 of the NDPS Act. There is complete non-compliance of the mandatory requirement.”
In view of these serious infirmities, the court upheld the acquittal observing that once the recovery itself stood vitiated, the entire prosecution case necessarily collapsed. Accordingly, the acquittal appeal filed by the State was dismissed and the acquittal of the respondent-accused was affirmed.
Case Title: State of J&K Through Police Station Gangyal v. Mohd. Irfan
Citation: 2026 LiveLaw (JKL)