A flawed police procedure during a narcotics search has led the Supreme Court to uphold the acquittal of a man accused of possessing charas, underscoring that strict adherence to the safeguards under the Narcotic Drugs and Psychotropic Substances (NDPS) Act is non-negotiable.
The Court concluded that investigators compromised the case by offering the accused an option that the law simply does not recognise — to be searched in the presence of a police officer. Under Section 50 of the NDPS Act, a person facing a personal search must only be informed of the right to choose between two authorities: a Magistrate or a Gazetted Officer. Introducing any additional option distorts that right and invalidates the process.
A Bench of Justices Pankaj Mithal and Prasanna B. Varale dismissed an appeal filed by the State of Himachal Pradesh, affirming the High Court’s decision that had earlier overturned the conviction of the accused.
The Court agreed with the High Court’s reasoning that the police had improperly expanded the legal choices available to the accused. Investigators had told him he could either be searched before a Magistrate, before a Gazetted police officer, or by the investigating officer himself in the presence of witnesses. The judges emphasised that the law permits only the first two options, and any deviation undermines the statutory protection granted to the accused.
By presenting this unlawful third alternative, the police effectively misrepresented the legal position, the Court noted, adding that consent obtained in such circumstances cannot be treated as valid. As a result, the entire search — and the prosecution built upon it — stood legally compromised.
The case stemmed from an incident in Himachal Pradesh where a police team returning from checkpoint duty reportedly noticed a man carrying a backpack who attempted to run upon seeing them. He was detained, and the bag was searched. Officers claimed to have recovered over 11 kilograms of charas packed in balls and sticks. The substance was seized, sealed, and later examined in a forensic laboratory.
Based on this recovery, the man was prosecuted under Section 20 of the NDPS Act. A trial court found him guilty and imposed a sentence of ten years’ rigorous imprisonment along with a fine of ₹1 lakh.
However, the High Court later overturned that conviction, holding that the prosecution had failed to demonstrate compliance with the mandatory safeguards governing personal searches under Section 50. The improper option offered to the accused, it ruled, rendered the procedure defective.
The State challenged that ruling before the Supreme Court, but the top court found no reason to interfere.
The judgment reiterated that Section 50 exists to protect individuals from arbitrary searches and to ensure transparency in narcotics investigations. The accused must clearly understand that the search can be conducted only in the presence of either a Magistrate or a Gazetted Officer — nothing beyond that.
The Court also referred to an earlier ruling in Suresh and Others v. State of Madhya Pradesh, which clarified that if an accused is merely asked whether they wish to be searched by the police officer involved or a Gazetted Officer, and they consent to the former, such consent does not amount to compliance with Section 50.
Reaffirming this principle, the Court concluded that presenting an impermissible choice dilutes the statutory safeguard and invalidates the search itself. With that finding, the appeal was dismissed, leaving the acquittal undisturbed.
