Police Cannot Offer A Third Option During NDPS Search: Supreme Court Upholds Acquittal In 11 Kg Charas Case, Holds Section 50 Violation Vitiates Entire Trial

"There Is No Third Option To Be Searched Before The Police Officer — The Consent Obtained Was Not In Conformity With Section 50 Of The NDPS Act And Has Vitiated The Entire Trial", In a ruling that reaffirms the mandatory character of procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985, the Supreme Court on March 16, 2026, dismissed the State of Himachal Pradesh's appeal against the acquittal of an accused found carrying 11 kg 50 grams of charas.

The bench of Justice Pankaj Mithal and Justice Prasanna B. Varale held that the Investigating Officer's act of offering the accused a third option — of being searched in the presence of a police officer — was directly contrary to Section 50 of the NDPS Act, which permits only two choices: search before a Magistrate or before a Gazetted Officer. This departure from the statutory mandate, the Court held, vitiated the entire trial and rendered the recovery unsustainable.

Background of the Case

On March 13, 2013, a police party led by SHO Daya Ram was returning from a nakabandi near Dhangu Dhank in Himachal Pradesh when they spotted the accused, Surat Singh, descending a slope carrying a red-grey coloured bag pack. On seeing the police, the accused became perplexed and attempted to flee. He was apprehended on suspicion. A consent memo was drawn up and a personal search was conducted. From the bag, one plastic bag was recovered containing charas in the form of balls and sticks, weighing 11 kg 50 grams — a commercial quantity. The charas was sealed and sent to the Forensic Science Laboratory at Junga. A chargesheet was filed before the Special Court, Shimla.

The Trial Court convicted Surat Singh under Section 20 of the NDPS Act and sentenced him to ten years' rigorous imprisonment along with a fine of Rs. 1,00,000. The accused appealed to the Himachal Pradesh High Court, which set aside the conviction and acquitted him, finding that the Investigating Officer had offered the accused a third, impermissible option during the search procedure. The State then approached the Supreme Court.

Legal Issues and Court's Observations

On the Mandatory Nature of Section 50 and the Impermissibility of a Third Option

The State argued that since the charas was recovered from the bag the accused was carrying — and not from his person directly — Section 50 of the NDPS Act ought not to apply, and the recovery should be treated as a chance recovery unaffected by procedural infirmity. The Court rejected this contention.

The bench noted that the consent memo drawn up by the Investigating Officer had offered the accused three choices: to be searched before a Magistrate, before a Gazetted Officer, or before the Investigating Officer himself in the presence of witnesses. Section 50, however, is unambiguous — it provides only two options. Offering a third choice is not a procedural irregularity that can be condoned; it is a direct violation of the statutory safeguard the provision was designed to provide.

The Court quoted with approval the principle laid down in Suresh v. State of Madhya Pradesh (2013): "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... The concept of substantial compliance is not acceptable. Compliance with Section 50(1) is mandatory and requires strict observance."

On Whether Section 50 Applies When Both Bag and Person Are Searched

The State further contended that Section 50 is attracted only to personal searches and not to searches of bags or belongings. The Court addressed this by relying on State of Rajasthan v. Parmanand (2014), which had authoritatively settled the question: if merely a bag is searched without any search of the person, Section 50 has no application. However, where both the bag and the person of the accused are searched, Section 50 is squarely attracted.

In the present case, the prosecution's own record — the consent memo and the personal search memo — established that both a bag search and a personal search had been conducted. Section 50 was therefore fully applicable, and its violation was fatal to the prosecution's case.

On the Reverse Burden Under Section 54 and Its Limits

The State invoked Section 54 of the NDPS Act, which raises a presumption of guilt against an accused who is found in possession of a contraband and fails to satisfactorily account for it. The Court acknowledged this reverse burden but held that it cannot be triggered unless a valid recovery is first established. Citing Sanjeet Kumar Singh v. State of Chhattisgarh (2022), the bench reiterated: "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 accused will be entitled to the benefit." Since the search itself was vitiated by non-compliance with Section 50, the Section 54 presumption could not be invoked to save the prosecution.

On the Additional Infirmity: The Electronic Weighing Scale Contradiction

Beyond the Section 50 violation, the Court noted a further and independent reason to distrust the prosecution's case. The prosecution had claimed that an electronic weighing scale was used at a shopkeeper's premises to weigh the seized charas. However, PW-8, the shopkeeper, categorically stated in cross-examination that he possessed only a traditional weighing scale and had no electronic scale at his shop. No head constable had visited his shop, and he was entirely unaware of any police operation involving an accused.

"The oral evidence of PW-8 is an additional reason making the prosecution case doubtful and untrustworthy. The story of the prosecution that an electronic weighing scale was used for weighing the contraband article charas falls flat on the face of it."

This uncontroverted testimony of a prosecution witness — directly contradicting the prosecution's own version — independently rendered the recovery suspect and the case unacceptable.

On the Scope of Interference in Appeals Against Acquittal

The Court also reaffirmed the well-settled principle governing appellate interference in acquittal cases. Citing State of Rajasthan v. Kistoora Ram (2023), the bench noted that the scope of such interference is very limited — unless the view taken by the acquitting court is impossible or perverse, or only one view is possible, an appellate court cannot substitute its own preference for conviction. Where two views are possible, the acquittal must stand.

Decision

The Supreme Court's dismissal of the State's appeal is a firm reminder to investigating agencies that the procedural safeguards embedded in the NDPS Act are not bureaucratic formalities to be given a liberal or approximate compliance. Section 50 exists precisely to protect individuals from arbitrary searches by police officers wielding broad powers under a stringent statute that carries severe minimum sentences. Offering an accused a third, unlawful option — however innocuously intended — does not merely weaken the prosecution's case. It destroys it entirely. Coupled with the shopkeeper's testimony that directly undermined a material fact asserted by the prosecution, the acquittal was not merely justified — it was compelled.

Date of Decision: March 16, 2026