Total Non-Compliance of Section 42 and 50 is Impermissible: Himachal Pradesh High Court Affirms Acquittal in 100 Grams Charas Case

Procedural Safeguards Are Not Empty Formalities—They Are Substantive Rights of the Accused Under the NDPS Act
In a significant ruling on April 1, 2025, the Himachal Pradesh High Court in State of Himachal Pradesh vs. Sher Singh (Criminal Appeal No. 360 of 2015) dismissed the State’s appeal against the acquittal of Sher Singh, who had been charged under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for alleged possession of 100 grams of charas. The Division Bench comprising Justice Tarlok Singh Chauhan and Justice Sushil Kukreja held that “total non-compliance of Sections 42 and 50 of the NDPS Act is impermissible”, and such violations vitiate the trial, making the recovery and prosecution unsustainable. 

The case arose out of an incident dated 3 March 2010, when a police team intercepted a Punjab-registered bus at Bajaura checkpoint. During the search of the bus, the respondent Sher Singh, who appeared “perplexed” to the police officers, was found in possession of a polythene bag containing 100 grams of charas, allegedly concealed in the right pocket of his jeans. The police conducted his search and seized the substance, which was later confirmed to be charas by forensic analysis. 
The respondent was charged and tried before the Special Judge under Section 20 of the NDPS Act. However, the trial court acquitted him after finding material lapses in procedural compliance. The State challenged the acquittal before the High Court. 
The High Court primarily considered whether there was due compliance with Sections 42 and 50 of the NDPS Act, which lay down mandatory procedural safeguards in cases of search and seizure. 
Even though the prosecution would claim that it is a case of chance recovery, the documents speak otherwise and prove on record that it was a case of prior information. This factual conclusion triggered the requirement of strict compliance with Section 42. 
The memo drawn during the search stated that the respondent was suspected to be in possession of narcotics, and yet, there was no record of the information having been taken down in writing, nor any proof that it was communicated to a superior officer, as required under Section 42(2). 
Once it is a case of prior information, then the prosecution was required to comply with the mandatory provisions of the Act in its letter and spirit, more especially Section 42 of the Act.
Referring to the Constitution Bench ruling in Karnail Singh v. State of Haryana (2009) 8 SCC 539, the Court reiterated: Total non-compliance of Section 42 is impermissible.
Where the police officer fails to record in writing the information received, or fails to send a copy thereof to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act.
The Court further cited Boota Singh v. State of Haryana, (2021) 19 SCC 606, where the Supreme Court held: In no case, total non-compliance of Section 42 can be accepted.
The High Court also found that the police failed to properly inform the respondent of his right to be searched before a Gazetted Officer or a Magistrate, as mandated under Section 50. 
While the prosecution contended that consent was obtained to be searched by police officers, the Court held: Even taken at face value, the prosecution evidence reveals that the investigating agency failed to comply with the mandatory provisions of the Act.
Citing Arif Khan @ Agha Khan v. State of Uttarakhand (2018) 18 SCC 380, the Court stressed: It is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted Officer or a Magistrate.
Further reinforcing the principle from Vijaysinh Chandubha Jadeja, the Court emphasized: Section 50 provides both a right as well as an obligation… The person has the right to be searched in presence of a Magistrate or a Gazetted Officer, and the officer must inform him of that right in clear terms.
The Court also drew from Ranjan Kumar Chadha v. State of H.P., AIR 2023 SC 5164, which held: Any incriminating contraband recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution.
Summing up its conclusions, the High Court categorically ruled: Since there is total violation of mandatory provisions of Section 50 of the Act, the recovery of the alleged contraband stands vitiated.
The view taken by the learned Special Judge while acquitting the respondent is reasonable, based on the evidence, and cannot be said to be either perverse or contrary to the material available on record.
The Himachal Pradesh High Court thus held that “Procedural compliance under Sections 42 and 50 of the NDPS Act is not optional—it is the bedrock of a lawful prosecution under this stringent statute.” With these findings, the Court dismissed the State’s appeal and affirmed the acquittal of the respondent. 
 

Date of Decision: April 1, 2025