NDPS Act | Cannot Rely On Magistrate's Presence To Validate Search While Disregarding His Testimony On Source Of Recovery: J&K&L High Court

Justice Sanjay Parihar observed that where the prosecution case is founded on personal recovery, a contradiction by the Magistrate associated with the search that the contraband was actually recovered from the vehicle is not a minor discrepancy, particularly when compliance with Section 50 of the NDPS Act is itself premised on the alleged personal search.

The Court was hearing an appeal filed by Mohammad Shafi Lone and Bilal Ahmad Dar against their conviction under Sections 8/21 of the NDPS Act by the Additional District and Sessions Judge, Kupwara. The appellants had been sentenced to 10 years' rigorous imprisonment and a fine of ₹1 lakh each. Mohammad Shafi Lone & Others Vs UT Of

The Court ultimately set aside the conviction and acquitted both appellants, holding that the prosecution had failed to establish beyond reasonable doubt that the alleged contraband was recovered from their personal possession in the manner asserted.

Background:

According to the prosecution, the appellants were intercepted at Drugmulla while travelling in a vehicle. Nothing incriminating was allegedly recovered from the vehicle, following which their personal searches were conducted in the presence of an Executive Magistrate. The prosecution claimed that 435 grams of heroin was recovered from appellant No.1 and 372 grams from appellant No.2.

The defence disputed compliance with Section 50, pointing out that the alleged consent/option forms did not bear the appellants' signatures and had not been duly proved. More importantly, the Executive Magistrate, PW-5, stated that the two polythene pouches had been recovered from the vehicle.

Court's Observations:

The Court held that the contradiction regarding the source of recovery went to the root of the prosecution case.

“If the prosecution version is accepted, the contraband was recovered from the persons of the appellants after compliance with Section 50. If the testimony of the Executive Magistrate is accepted, the recovery was from the vehicle,” the Court observed, adding that these materially different versions could not simultaneously constitute the factual basis of conviction.

The Court particularly emphasised that the prosecution itself had associated the Executive Magistrate with the proceedings and relied upon his presence as an assurance of fairness. Therefore, his substantive evidence concerning the recovery could not simply be ignored because it did not support the prosecution version, Justice Parihar reasoned.

.. Once the prosecution relies upon the presence of the Executive Magistrate to lend authenticity to the proceedings, his substantive testimony concerning the very source of recovery cannot be ignored merely because it does not support the prosecution version on that material aspect. It is also significant that the prosecution did not have PW-5 declared hostile in relation to his assertion that the contraband was recovered from the vehicle. His evidence, therefore, continues to form part of the prosecution evidence and must be assessed along with the testimony of the remaining witnesses”, the court remarked.

The Court further found serious deficiencies in the alleged exercise of the Section 50 option. The consent forms were not duly exhibited as substantive evidence, did not bear the appellants' signatures, no civilian witness was associated when the option was allegedly offered, and one prosecution witness had categorically stated that no such option was given.

Importantly, the Court held,

“The mere physical presence of an Executive Magistrate at the spot cannot, by itself, substitute proof that the appellants were made aware of the statutory right available to them and that the alleged option was thereafter consciously exercised.”

The Bench also held that a document merely marked during trial does not thereby become substantive evidence. Where such a document is relied upon to establish compliance with an important statutory safeguard, its execution and contents must be proved in accordance with law.

The Court further clarified that the statutory presumption under Section 54 cannot be invoked before the prosecution establishes the foundational fact of possession through reliable and legally admissible evidence.

“Where the very manner and source of the alleged recovery are rendered doubtful by the prosecution evidence itself, the deficiency cannot be supplied by invoking the statutory presumption,” the Court held.

Similarly, the forensic report establishing that the samples contained diacetylmorphine could not independently prove that the substance had been recovered from the appellants. The chemical identity of the substance could not cure the foundational defect concerning possession and recovery.

The Court accordingly held that the prosecution evidence, viewed cumulatively, created reasonable doubt regarding both the recovery and compliance with Section 50. It observed,

“..A criminal Court cannot choose between two materially inconsistent versions appearing from the prosecution evidence and sustain a conviction merely because one of those versions supports the charge. Where a reasonable doubt arises from the prosecution evidence itself on a foundational circumstance, the benefit thereof must necessarily enure to the accused”.

On a cumulative consideration of the above findings the appeal was allowed, the conviction and sentence were set aside, and both appellants were acquitted.

Case Title: Mohammad Shafi Lone and Another v. Union Territory of J&K

Citation: 2026 LiveLaw (JKL)

Appearances:


For the appellants: S.T. Hussain, Senior Advocate with Nida Nazir, Advocate.


For the respondent: Mohsin S. Qadiri, Senior AAG with Maha Majeed, Assisting Counsel.

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