HP High Court Upholds Acquittal in Charas Case | Joint Consent Memo for Search Breached Mandatory Section 50 Safeguards under NDPS Act
Safiya Malik
The High Court of Himachal Pradesh, Division Bench of Justice Vivek Singh Thakur and Justice Sushil Kukreja upheld the acquittal of two men accused of possessing charas, dismissing the State’s appeal against a 2013 trial court judgment. The case involved the recovery of 600 grams of charas from one accused and 400 grams from the other during a police patrol in 2012. The Court found that the prosecution failed to prove its case beyond reasonable doubt due to non-compliance with the mandatory requirement under Section 50 of the NDPS Act, as both accused were informed of their search rights through a joint consent memo rather than individually.
The appeal arose from a judgment dated 30 April 2013 of the Special Judge, Chamba, which acquitted the accused Soni and Ajay Kumar of charges under Section 20 of the NDPS Act. The prosecution alleged that on 8 May 2012, at about 2:40 a.m., a police party led by Head Constable Devanand encountered the two accused near Zero Point Jassourgarh while on patrol. On seeing the police, the accused attempted to flee but were apprehended. As no independent witnesses were available, Constable Som Parkash and SPO Sanjeev Kumar were associated with the search proceedings.
According to the prosecution, the accused were apprised of their right to be searched before a Magistrate or a Gazetted Officer, but both opted to be searched by the police on the spot. A joint consent memo was prepared to this effect. During the search, 600 grams of charas was allegedly recovered from accused Soni in a cream-coloured bag tied under his clothing, while 400 grams of charas was recovered from accused Ajay Kumar concealed under his vest in a red-coloured bag. Both recoveries were sealed and documented, with samples of the seal impression taken.
After completion of investigation and upon receipt of the forensic science laboratory (SFSL) report, the accused were charged under Section 20 of the NDPS Act. They pleaded not guilty and claimed false implication. The prosecution examined eleven witnesses, including the investigating officer and police officials present during the recovery. The defence, however, examined no witnesses.
The trial court acquitted the accused, holding that since the SFSL report did not mention the percentage of tetrahydrocannabinol (THC), it could not be conclusively established that the recovered substance was charas, relying on the judgment in Sunil v. State of Himachal Pradesh, 2010 (1) Shim. LC 192. The State challenged this acquittal under Section 378 of the Code of Criminal Procedure, arguing that the trial court had misappreciated the evidence and erred in discarding the testimony of prosecution witnesses.
The Bench observed that in appeals against acquittal, an appellate court has the power to reappreciate evidence but must recognize the double presumption in favour of the accused. It referred to Muralidhar alias Gidda & another v. State of Karnataka (2014) 5 SCC 730, recording that “if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.” Similarly, in Rajesh Prasad v. State of Bihar (2022) 3 SCC 471, the Supreme Court had observed that interference with acquittal is permissible only in the rarest cases where reasoning is perverse.
On the question of the trial court’s reliance on Sunil v. State of Himachal Pradesh, the Bench noted that the judgment had been overruled by a larger Bench in State of Himachal Pradesh v. Mehboob Khan, 2014 Crl LJ 705. The Bench recorded: “There is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas.” It therefore found that the trial court’s acquittal on this ground was incorrect.
However, the Court proceeded to examine compliance with Section 50 of the NDPS Act, which provides that the accused must be informed of their right to be searched before a Magistrate or a Gazetted Officer. The Court referred to State of Rajasthan v. Parmanand (2014) 5 SCC 345 and Ranjan Kumar Chaddha v. State of Himachal Pradesh, AIR 2023 SC 5164, both of which held that a joint communication of this right is invalid. The Bench quoted: “A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest Gazetted Officer or before a nearest Magistrate.”
After examining the consent memo (Ex. PW1/B), the Court found that both accused had been jointly informed and had signed a single document. It held: “informing the right available under NDPS Act jointly to both the accused persons is a clear violation of Section 50 of NDPS Act.”
The Bench recorded: “Consequently, in view of the detailed discussion made hereinabove, we are of the firm opinion that the prosecution has failed to prove its case against both the accused persons beyond reasonable doubt. Therefore, the appeal, which is devoid of merits, deserves dismissal and is accordingly dismissed, however, in view of the reasons given by this Court and not for the reasons assigned by the learned Trial Court.”
The Court directed that the bail bonds furnished by the accused stand discharged. However, in accordance with Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023, both accused were directed to furnish personal bonds of Rs.50,000 each with one surety in the like amount to the satisfaction of the Registrar or Additional Registrar (Judicial) of the High Court within four weeks. The Bench specified: “with the stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondents on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.”
The appeal was accordingly disposed of, along with any pending miscellaneous applications.
Advocates Representing the Parties
For the Appellant: Mr. J.S. Guleria, Deputy Advocate General.
For the Respondents: Mr. Arvind Sharma, Advocate; Ms. Aashima Premy, Advocate
Case Title: State of Himachal Pradesh v. Soni and another
Neutral Citation: 2025: HHC:33178
Case Number: Cr. Appeal No. 4144 of 2013
Bench: Justice Vivek Singh Thakur, Justice Sushil Kukreja
