NDPS | Compliance with Section 50 of NDPS Act is mandatory and non-negotiable: Punjab and Haryana High Court

On October 15, 2024, the Punjab and Haryana High Court, in a decision by Justices Sudhir Singh and Jasjit Singh Bedi, upheld the acquittal of Ajay Kumar and Manoj Kumar in an NDPS Act case. The Court emphasized the prosecution's failure to comply with the mandatory procedural safeguards under Section 50 of the NDPS Act and noted critical evidence discrepancies. These procedural lapses were deemed fatal to the State's appeal, leading to its dismissal.
The case arose from an incident on July 14, 2016, when the police intercepted a motorcycle carrying two individuals, Ajay Kumar and Manoj Kumar, and allegedly recovered 560 grams of intoxicant powder and a stolen laptop. The Special Court in Rupnagar acquitted the accused in August 2019, citing significant procedural flaws and lack of proof of the alleged stolen property's ownership. The State appealed, arguing that the Special Court had overlooked substantial evidence and exaggerated minor discrepancies.
The Court observed that ASI Tarlochan Singh, the Investigating Officer (IO), failed to inform the accused properly of their right to be searched in the presence of a Magistrate or Gazetted Officer as mandated by Section 50 of the NDPS Act. Instead, the IO offered to conduct the search himself, which is explicitly prohibited.
Judicial Precedent Cited: The Court relied on the Supreme Court’s decision in Arif Khan @ Agha Khan vs. State of Uttarakhand (2018), which held that Section 50’s requirements are mandatory. The Supreme Court ruled that failure to inform the accused accurately of their right to search in the presence of a Gazetted Officer or Magistrate invalidates the search and renders any recovery inadmissible.
Quote from the Judgment: “The Investigating Officer’s offer to conduct the search himself instead of ensuring the presence of a Magistrate or Gazetted Officer directly violates Section 50, warranting acquittal.”
The High Court noted that crucial documents, such as the recovery memo and site plan, contained the FIR number even though the FIR was formally registered later, casting doubt on the authenticity and timing of these documents. The prosecution failed to provide any satisfactory explanation for this discrepancy.
Court Observation: “The presence of the FIR number on documents prepared before its formal registration raises questions about the integrity of the evidence.”
The Court found additional discrepancies regarding the handling of the recovered contraband. The recovered powder's description in the recovery memo did not match the Forensic Science Laboratory (FSL) report, which noted additional colors in the substance, thereby casting doubt on the authenticity and continuity of evidence.
Significant Quote: “The failure to maintain a clear chain of custody and the color discrepancies in the contraband further weaken the prosecution’s case.”
The prosecution claimed the laptop found in Ajay Kumar’s possession was stolen, but failed to establish ownership conclusively. The complainant, Manoj Kumar, could not verify that the laptop recovered matched the one stolen from him, and discrepancies were found between the model and serial numbers on the invoices and the recovered item.
Court’s Conclusion: “The prosecution did not provide sufficient evidence to prove that the laptop found with Ajay Kumar was the stolen property as required under Section 411 IPC.”
The accused were also charged under Sections 192 and 181 of the Motor Vehicles Act for alleged vehicle-related offenses. However, the prosecution did not produce any supporting evidence, leading the Court to uphold the acquittal on these charges as well.
On Compliance with Section 50 of the NDPS Act: “Section 50’s requirements are mandatory and essential to any NDPS search process. Failure to comply cannot be excused and justifies acquittal.”
On Documentary Discrepancies: “The premature mention of the FIR number on documents challenges the chain of evidence and cannot be overlooked as a mere procedural oversight.”
On Stolen Property Evidence: “The prosecution’s inability to definitively link the recovered laptop to the complainant’s property renders the charge under Section 411 IPC unsustainable.”
The High Court dismissed the State’s application for leave to appeal, affirming the Special Court’s acquittal of Ajay Kumar and Manoj Kumar. The Court cited multiple procedural and evidentiary failures that substantially undermined the prosecution’s case. The ruling emphasized strict adherence to procedural safeguards under the NDPS Act, especially concerning search protocols, and cautioned against overlooking procedural lapses that impact evidence integrity.
This judgment reinforces the mandatory nature of Section 50 of the NDPS Act, setting a clear precedent that compliance with procedural safeguards is non-negotiable. The ruling also underscores the importance of maintaining the chain of custody and accuracy in documentation, especially in cases involving stringent statutes like the NDPS Act. This decision serves as a cautionary reminder that procedural irregularities can invalidate prosecutions, even in cases involving serious charges.

Date of Decision: October 15, 2024