'Shocking That IO Knew Accused Was Carrying Contraband Without Conducting Search': Himachal Pradesh HC Upholds Acquittal In Drugs Case

The Himachal Pradesh High Court has upheld an acquittal in an NDPS Act case, expressing shock over the fact that the investigating officer already knew that the accused was carrying contraband without searching him or conducting a test on the material.

Justice Tarlok Singh Chauhan and Justice Sushil Kukreja, said "while perusing the consent memo of search of the accused observed that, "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."

The Court said that clearly it is a case of prior information and not that of chance recovery, which requires strict compliance of provisions of the NDPS Act.

Perusing the consent memo, the bench noted that the option was sought from the accused to be searched before the Magistrate or a Gazetted Officer or the police party and according to the prosecution, the accused opted to be searched before the police party present at the spot.

The bench pointed that "the empowered officer has not taken in writing from the suspect i.e. respondent herein that he would not like to exercise his right of being searched before the Magistrate or a Gazetted Officer and he would be searched by the empowered officer and therefore, this vitiates compliance of provisions of Section 50 of the Act."

It highlighted that "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 accused 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," the Court opined.

The Court was hearing an appeal against the acquittal filed by the State Government, wherein the accused, Vikram was acquitted in the drugs case in which he was booked as allegedly carrying 500 grams of charas.

After hearing the submissions, the Court found the violation of the NDPS provisions. It noted that Vikram was 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.

Speaking for the bench Justice Chauhan highlighted that the recovery in the instant case has been effected from the person of the accused because the witnesses have stated that the respondent 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 Investigating Officer came to know that the substance found in the cloth tied by the respondent around his waist 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.

Lastly and more importantly, the prosecution has failed to comply with the provisions of Section 42 (2) of the Act as the case is on the basis of prior information and not of chance recovery as is evident from the consent memo, "therefore, provisions of Section 42(2) of the Act were scrupulously required to be followed," the bench said.

In the light of the above the Court opined that, "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."

Consequently, the plea was dismissed.

Title:  State of Himachal Pradesh v. Vikram alias Vicky

Citation: 2025 LiveLaw (HP) 04

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