The Telangana High Court has set aside a man's conviction in a cocaine possession case, after finding that the police had served a common notice to the appellant and other accused and the State had failed to establish that he was individually and meaningfully informed of his right under Section 50 NDPS Act before his personal search.

Section 50 pertains to conditions under which search of persons shall be conducted.

Granting him the benefit of doubt, Justice Juvvadi Sridevi also found serious gaps in the evidence that cocaine had been recovered from his possession.

The Court observed:

The alleged recovery from the accused No.2 is a personal search recovery. Therefore, the safeguard contained in Section 50 of the NDPS Act assumes considerable importance. PW.4 (Inspector of Police) admitted that Ex.P.1, stated to be the notice under Section 50 of the NDPS Act, was a common notice served upon both accused on the ground that they were together. PW.5 (Detective Inspector) also admitted that he did not know whether separate notices were required to be served upon each accused. The statutory right under Section 50 is a valuable safeguard available to a person whose body is proposed to be searched"

The court referred to State of Punjab v. Baldev Singh, where Supreme Court emphasised that the person to be searched must be informed of his right to have the search conducted before a Gazetted Officer or a Magistrate and that compliance with the safeguard has to be established by the prosecution on the basis of the evidence adduced at trial.

It thus said:

"The significance of the safeguard becomes greater in the present case because the prosecution itself has introduced uncertainty as to the manner of communication of the right. PW.4 admitted that a common notice was served upon both accused. PW.5 admitted that he did not know whether separate notices were required. The prosecution has thus failed to place before the Court satisfactory and convincing evidence establishing that the statutory right of the accused No.2 was individually and meaningfully communicated to him before his personal search".

The appeal was filed by Vikram Malhotra against a 2014 judgment sentencing him to one year's rigorous imprisonment and a fine for offences under Sections 8(c), 21(b) and 29 of the NDPS Act.

According to the prosecution, police apprehended Malhotra and another man after they met near a car in Hyderabad in December 2011. Officers alleged that they recovered six small packets of cocaine from Malhotra and nine from the other accused.

P. Krishna Prakash, appearing for Malhotra, argued that the prosecution had failed to prove possession beyond reasonable doubt. He questioned compliance with Section 50, pointed to contradictions in the police evidence and noted that the independent witnesses had not supported the alleged seizure.

Assistant Public Prosecutor M. Vivekananda Reddy submitted that the trial court had properly assessed the evidence and that the conviction called for no interference.

The Court examined whether the prosecution had proved the alleged personal recovery, compliance with search safeguards and the charge of conspiracy. It noted that the two witnesses to the seizure said no proceedings had taken place in their presence and that their signatures were obtained on papers.

Although police testimony could support a conviction if reliable, the Court found material inconsistencies in the officers' accounts of how the accused arrived at the spot. The seizure record also failed to state that the packets were recovered from Malhotra's pocket or person, despite that being central to the prosecution's case.

On Section 50, the Court held that merely asserting Malhotra had opted for a search before a Gazetted Officer was insufficient. The prosecution had to show that he made that choice after being informed of his right. Its evidence did not remove reasonable doubt on that point.

The forensic examination could establish the nature of the seized substance, the Court added, but could not itself prove that it had been recovered from Malhotra's possession. Nor did the accused persons' presence together in a car establish a conspiracy under Section 29 without reliable evidence of an agreement or participation in the alleged offence.

Finding that these deficiencies cumulatively affected the foundation of the prosecution case, the Court allowed the appeal and acquitted Malhotra. It directed that any fine paid be refunded in accordance with law.

Case Title: Vikram Malhotra @ Vicky v. State of Telangana

Case No.: Criminal Appeal No. 765 of 2014

Appearance: P. Krishna Prakash for the appellant; Assistant Public Prosecutor M. Vivekananda Reddy for the State.

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