The State Of Himachal Pradesh vs Surat Singh

2026 INSC 240 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 96 OF 2018

THE STATE OF HIMACHAL PRADESH ……….Appellant

VERSUS

SURAT SINGH ………Respondent

JUDGMENT

PRASANNA B. VARALE, J.

1. The present criminal appeal arises out of a judgement and

order dated 08.10.2015 passed by High Court of Himachal Pradesh

vide Cr. Appeal No. 155 of 2015 wherein the judgment of conviction

and sentence to undergo rigorous imprisonment for a period of 10

years and to pay fine of Rs. 1,00,000/-, rendered by the learned

Special Judge-I, Shimla, H.P, in Sessions trial No. 21-S/7 of 2013,

dated 31.12.2014 was set aside. The prosecution has failed to Signature Not Verified Digitally signed by

prove the case against the accused for the commission of offence NEHA GUPTA Date: 2026.03.16 16:21:30 IST Reason:

under Section 20 of the Narcotic Drugs and Psychotropic

1 Substances Act, 1985 (herein after ND & PS Act). Accused was

acquitted of the charges framed against him.

BRIEF FACTS

2. The factual matrix of the case is that on 13.3.2013, police

party headed by SHO Daya Ram consisting of ASI Raj Kumar and

others was present during Nakabandi at place Pandranu from 4:00

am to 6:00 am. The police party while coming back in vehicle No.

HP-07A-0839 reached near Dhangu Dhank. The accused was

found coming downward carrying red-gray coloured bag pack. On

seeing the police party, the accused became perplexed and tried to

run away. On suspicion, accused was apprehended by the police

party. The consent was taken vide consent memo Ext. PW-1 /A.

The police official has given the personal search vide memo Ext.

PW-1/B. On search of the bag of accused, one plastic bag was

found containing charas in the form of balls and sticks. The charas

weighed 11 kg 50 grams.

3. The charas Ext. P-4 was repacked in the same bag and sealed

with three seals of "H'' in parcel Ext. P-1 in the presence of

witnesses and taken into possession vide memo Ext. PW-1/D.

Sample of seal "H" was also taken on a piece of cloth vide Ext. PW-

1/C. Rukka Ext. PW-11/A was prepared on the basis of which FIR

2 Ext. PW-7 /D was recorded. Investigating Officer sent the rukka

and sealed parcel containing charas through Head Constable Babu

Lal who deposited it in the malkhana and corresponding entry was

taken in the register. The abstract of malkhana register is Ext. PW-

7 /A. The Investigating Officer prepared NCB form in triplicate vide

Ext. PW-1/E. The case property was sent to FSL Junga vide RC

No. 4. On completion of the investigation, the chargesheet was

submitted in the competent court.

4. The prosecution, in order to prove its case, has examined as

many as 11 witnesses. The statement of accused under Section

313 of Criminal Procedure Code, 1973 (hereinafter ‘Cr.P.C.’) was

recorded. The accused has denied the prosecution case. According

to him, he was falsely implicated. The accused claimed trial. The

learned Trial Court on appreciation of evidences on record,

convicted and sentenced the accused, as noticed herein above.

5. Being aggrieved by the judgment of Trial Court, the accused

preferred an appeal before the High Court. The Hon’ble High Court

of Himachal Pradesh after considering the material and on hearing

the submissions advanced by the respective parties allowed the

appeal by setting aside the judgment of Trial Court. The High Court

observed that the accused was apprehended on 13.3.2013 while

3 carrying a bag. However, despite that his personal search was

carried out. The police had given option to the accused either to be

personally searched before the Magistrate or the Gazetted Police

Officer. The accused was also given option whether he wanted to

be searched by the Investigating Officer in the presence of

witnesses mentioned in Ext. PW-1/A. According to Section 50 of

the ND & PS Act, the accused has to be apprised of his legal right

to be searched either before the Magistrate or the Gazetted Officer.

There is no third option to be searched before the Police Officer.

Thus, the consent obtained from the accused was not in

conformity with Section 50 of the Act. The act of Investigating

Officer providing the third option namely, the search of accused in

presence of the Police officer was clearly contrary to the provisions

of the Act and particularly contrary to the provisions of Section 50

of ND & PS Act. Considering this act, the High Court observed that

when the provisions of the Act namely, Section 50 provides only

two options i.e. apprising the provision of the Act, apprising the

accused of his legal right available with two options namely, to be

searched either before the Gazetted Officer or before the Magistrate

and providing the third option by the officer concerned that the

4 search before the police officer being contrary to the provisions of

law vitiated the entire trial.

6. The Hon’ble High Court held that the prosecution has failed

to prove the case against the accused for the commission of offence

under Section 20 of the ND & PS Act. Accordingly, in view of the

analysis and discussion made, the appeal was allowed. Judgment

of conviction and sentence dated 31.12.2014, rendered by the

learned Special Judge-I, Shimla, H.P., in Sessions trial No. 21-S/7

of 2013, was set aside. Accused is acquitted of the charges framed

against him.

7. Aggrieved by the said judgement of the High Court, the

appellant is before us.

CONTENTIONS

8. The Learned Counsel for the State of Himachal Pradesh

vehemently submitted that the reasons given by the Trial Court,

while passing the judgment of conviction are on the basis of

evidence on record and without giving scope for contrary view and

as such the court ought not to have allowed the appeal.

9. Petitioner contended that Hon’ble High Court erred in setting

aside conviction of respondent and not considering the fact that

the said charas was being recovered from the bag of the accused

5 person and that the same was not recovered from the personal

search of accused. Statements of PW-1, PW-2 and PW-3 are in

corroboration that charas weighing 11 kg 50 grams was recovered

from the bag which the accused was carrying and not from the

physical search.

10. It was also contended that there was no prior information

with the Investigating Officers regarding the possession of charas

and that the police party had only proceeded on routine

nakkabandi. Therefore recovery made from the bag of the accused

person was rather a chance recovery. Even on examination under

section 313 Cr.P.C the accused denied that he has been falsely

implicated, but no evidence has been led by him to prove his

innocence. The petitioner relied upon Abdul Rashid Ibrahim

Mansuri v. State of Gujarat1 and State of Punjab v. Makhan

Singh2.

11. Moreover, the site plans clearly show that the place where the

alleged recovery took place was an isolated one there was no

residential area near to the spot the statement corroborates with

the Investigating Officer-PW 11, as he states that due to the place

being isolated no individual witnesses could be engaged. Also, due

1. (2000) 2 SCC 513

2. (2004) 3 SCC 453

6 to the fact that it was early winter morning it is less likely to spot

individuals at 7 a.m.

12. Per contra, the Ld. Counsel for the respondent contended

that the accused was apprehended on 13.3.2013 while carrying a

bag. However, despite that his personal search was carried out.

The police had given option to the accused either to be personally

searched before the Magistrate or the Gazetted Police Officer. The

accused was also given option whether he wanted to be searched

by the Investigating Officer in the presence of witnesses mentioned

in Ext. PW-1/A. According to Section 50 of the ND & PS Act, the

accused has to be apprised of his legal right to be searched either

before the Magistrate or the Gazetted Officer. There is no third

option to be searched before the Police Officer. Thus, the consent

obtained from the accused was not in conformity with Section 50

of the Act. It has vitiated the entire trial.

13. The counsel for the respondent acknowledged that as per

Section 54 of ND & PS Act, under which “unless and until the

contrary is proved, the accused has committed an offence under

this Act for the possession of which he fails to account

satisfactorily”, there is a reverse burden of proof on the accused.

However, the respondent relied upon para 34 of the Sanjeet

7 Kumar Singh alias Munna Kumar Singh versus State Of

Chhattisgarh3 wherein this court held that-

“It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely, the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co-accused.”

14. The learned counsel for respondent also relied upon the

judgment of this court in the case of State of Rajasthan Versus

Kistoora Ram4 wherein Hon’ble J. B. R. Gavai held under para 8

that-

“The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”

15. Moreover, the Ld. counsel for the respondent also contended

the statement of PW-8 is contrary to the story of prosecution, as

per his cross examination, no Head Constable came to his shop

and no one asked for the electronic weighing scale. He did not

know that accused was apprehended by the police. PW-8 in his

oral testimony before the Court in clear and unambiguous words

stated that in his shop only the traditional weighing scale was

3. (2022) 16 SCC 58

4. (2023) 18 SCC 87

8 available and there was no electronic weighing scale. This

uncontroverted version of the witness falsifies the story of

prosecution to the effect that for weighing the contraband article

charas, electronic weighing scale was used. Thus, the oral evidence

of PW-8 is additional reason making the prosecution case doubtful

and untrustworthy.

ANALYSIS

16. After hearing the ld. counsels appearing for the respective

parties and on going through the material placed before us, we are

of the opinion that the High Court committed no error in

appreciating the submissions and also assessing the evidence

brought before the Trial Court in its proper perspective.

17. The High Court vide its judgement dated 08.10.2015

acquitted the respondent-accused while observing as under:

17. “The accused was apprehended on 13.03.2013 while carrying a bag.

However, despite that his personal search was carried out. The police has given option to the accused either to be personally searched before the Magistrate or the Gazetted Police Officer. The accused was also given option whether he wanted to be searched by the I.O. in the presence of witnesses mentioned in Ext. PW-1/A. According to Section 50 of the ND & PS Act, the accused has to be apprised of his legal right to be searched either before the Magistrate or the Gazetted Officer. There is no third option to be searched before the Police Officer. Thus, the consent obtained from the accused was not in conformity with Section 50 of the Act. It has vitiated the entire trial.

18. Their lordships of the Hon'ble Supreme Court in the case of Suresh and others versus State of Madhya Pradesh, reported in (2013) 1 SCC 550, have held that in a case where the accused were merely asked whether they would offer their personal search to police officer concerned or to gazetted officer and the appellants gave their consent for their personal search by police officer

9 concerned, it will amount to non-compliance of Section 50(1) of the ND & PS Act. Their lordships have held as follows:

"16) The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e. the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh's case.

17. Further a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh's case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but "failure to inform" the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chan Jadeja's case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law."

19. In the instant case the accused was to be apprised of his legal right to be searched either before the Gazetted Officer or before the Magistrate and not before the Police Officer.

20. Their lordships of the Hon'ble Supreme Court in case of State of Rajasthan versus Parmanand and another, reported in (2014) 5 SCC 345, have held that if merely a bag is carried by person is searched without there being any search of his person, S. 50 will have no application but if bag carried by him is searched and his person is also searched, S. 50 would be attracted. Their lordships have also held that it was improper for PW-10 S.I. "Q" to tell respondents that a third alternative was available. It has been held as follows: 10

15. “Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.””

18. The oral testimony of the witnesses clearly established that

the Investigating Officer took a departure from the provisions of

law and on the contrary committed an act which is clearly contrary

to the provisions of law. It may not be out of place to state at the

cost of repetition that the testimony of PW-8 reveals that there was

no electronic weighing scale available in the shop and he was using

only the traditional weighing scale as such the story of prosecution

that an electronic weighing scale was used for weighing the

contraband article charas falls flat on the face of it and the version

of the prosecution and the story of the prosecution becomes

doubtful and ultimately unacceptable. The High Court was also

justified in placing reliance on the judgment of this Court in State

of Rajasthan versus Parmanand and Anr.5, in support of the

conclusions drawn by it.

5. (2014) 5 SCC 345

11

19. Thus, in our opinion, the present appeal is devoid of merits

and deserves to be dismissed. Accordingly, the same is hereby

dismissed.

........................................J. [PANKAJ MITHAL]

.........................................J. [PRASANNA B. VARALE]

NEW DELHI;

MARCH 16, 2026.

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