1

           REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 273 OF 2007

Arif Khan @ Agha Khan ... Appellant(s)

Versus

State of Uttarakhand      ... Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the

final judgment and order dated 26.06.2006 passed

by  the  High  Court  of  Uttaranchal  at  Nainital  in

Criminal Appeal No.368 of 2004 whereby the High

Court  confirmed  the  judgment  and  order  dated

09.11.2004  passed  by  the  Additional  Sessions

Judge, Fast Track Court II, Udham Singh Nagar in

2

Special Sessions Trial No.20 of 2003 by which the

appellant-accused  was  convicted  for  the  offence

punishable under Section 20 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (hereinafter

referred to as “the NDPS Act”) and sentenced him to

undergo rigorous imprisonment for 10 years and a

fine of Rs.1,00,000/-.  

2. In order to appreciate the issue involved in the

appeal, few facts need to be mentioned hereinbelow.

3. In  short,  the  case  of  the  prosecution  is  as

under:

4. On  23.11.2002,  a  secret  information  was

received  in  P.S.  Kichha  from  one  unknown

informant  that  one  person  is  travelling  in  a

roadways bus carrying with him some contraband

articles. The secret informant also gave information

that the person concerned would get down near the

3

railway crossing from the Bus and would approach

towards a place called “Chowki  Pul  Bhatta” along

with contraband article.

5. The  raiding  party  headed  by  SHO-Harish

Mehra, who was on duty at P.S. Kichha along with

the police officials on duty accordingly left for the

place informed by the informant.  

6. On  reaching  the  informed  place,  the  raiding

party  waited  for  sometime  and  thereafter  spotted

the  person  concerned,  who  was  approaching

towards the place informed to them.  The raiding

party intercepted the person concerned.  

7. Thereafter,  the  accused  was  asked  by  the

police personnel of raiding party as to whether he is

in possession of contraband “Charas”. The accused

admitted that he is in possession of “Charas”.  On

apprehending the accused, he was informed by the

4

police  personnel  that  he  has  a  legal  right  to  be

searched in the presence of a Gazetted Officer or a

Magistrate to which the accused replied that he has

a faith on the raiding police party and consented to

be searched by them.  

8. The raiding police party accordingly obtained

his consent in writing to be searched by the raiding

police party. The raiding police party then searched

the accused which resulted in seizure of “Charas”

weighing around 2.5 K.G. in quantity from his body.

9. It  is  this  incident,  which  gave  rise  to

prosecution  of  the  appellant  (accused)  for

commission of the offence punishable under Section

20  of  the  NDPS  Act  in  Special  Sessions  Trial

No.20/2003.  After  investigation,  the  prosecution

filed the charge sheet (Ex- 11) against the appellant

5

and examined 5 witnesses to bring home the charge

levelled against the appellant.  

10. By  order  dated  09.11.2004,  the  Additional

Sessions Judge/ Fast Track Court II, Udham Singh

Nagar held that the prosecution was able to prove

the  case  beyond  reasonable  doubt  against  the

appellant  and  accordingly  convicted  him  for  the

offences punishable under Section 20 of the NDPS

Act  and  sentenced  him  to  undergo  rigorous

imprisonment  for  10  years  and  a  fine  of

Rs.1,00,000/-.

11. The accused felt aggrieved and filed appeal in

the High Court at Nainital. By impugned judgment,

the High Court dismissed the appeal and upheld the

order of Additional Sessions Judge, which has given

rise to filing of the present appeal by the accused by

way of special leave in this Court.

6

12. Heard Mr. J.C. Gupta, learned senior counsel

for  the  appellant  (accused)  and  Mr.  Ashutosh

Kumar  Sharma,  learned  counsel  for  the

respondent-State.  

13. Learned  counsel  for  the  appellant  (accused)

while  assailing the legality  and correctness of  the

impugned judgment contended that both the Courts

below  erred  in  holding  the  appellant  guilty  of

commission  of  the  offence  in  question  and  thus

erred in convicting him for the alleged offence under

the NDPS Act.

14. Learned  counsel  contended  that  the

prosecution  has  failed  to  ensure  mandatory

compliance of Section 50 of the NDPS Act inasmuch

as  the  alleged  recovery/search  of  the  contraband

(Charas) made by the raiding police party from the

appellant's body was not done in accordance with

7

the procedure prescribed under Section 50 of  the

NDPS  Act  which  according  to  learned  counsel  is

mandatory  as  held  by  this  Court  in  the  case  of

Vijaysinh Chandubha Jadeja vs. State of Gujarat,

2011(1) SCC 609.

15.  Learned  counsel  urged  that  the

search/recovery of the alleged contraband from the

appellant  ought  to  have  been  made  only  in  the

presence of either a Magistrate or a Gazetted Officer

only.  

16. It  was  urged  that  since  admittedly  the

prosecution did not make the search/recovery from

the appellant in the presence of a Magistrate or a

Gazetted Officer and, therefore, the alleged recovery

of  the  contraband “Charas”  from the  appellant  is

rendered  illegal  being  in  contravention  of

requirements of Section 50 of the NDPS Act thereby

8

entitling  the  appellant  for  an  acquittal  from  the

charges.

17.  In  reply,  learned  counsel  appearing  for  the

respondent  (State)  supported  the  reasoning  and

conclusion  arrived  at  in  the  impugned  judgment

and,  therefore,  prayed  for  upholding  of  the

impugned judgment.

18. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while  setting

aside  of  the  impugned  judgment  acquit  the

appellant from the charges in question.

19. The  short  question  which  arises  for

consideration  in  the  appeal  is  whether  the

search/recovery  made  by  the  police  officials  from

the  appellant  (accused)  of  the  alleged  contraband

(charas) can be held to be in accordance with the

9

procedure prescribed under Section 50 of the NDPS

Act.  

20. In  other  words,  the  question  that  arises  for

consideration  in  this  appeal  is  whether  the

prosecution was able  to prove  that  the  procedure

prescribed under Section 50 of the NDPS Act was

followed by the Police Officials in letter and spirit

while  making  the  search  and  recovery  of  the

contraband “Charas” from the appellant (accused).  

21. What is the true scope and object of Section 50

of the NDPS Act, what are the duties, obligation and

the  powers  conferred  on  the  authorities  under

Section  50  and  whether  the  compliance  of

requirements  of  Section  50  are  mandatory  or

directory, remains no more res integra and are now

settled  by  the  two  decisions  of  the  Constitution

Bench of this Court in State of Punjab vs. Baldev

10

Singh (1999) 6 SCC 172 and Vijaysinh Chandubha

Jadeja (supra).  

22. Indeed, the latter Constitution Bench decision

rendered  in  the  case  of  Vijaysinh  Chandubha

Jadeja (supra)  has  settled  the  aforementioned

questions  after  taking  into  considerations  all

previous case law on the subject.  

23. Their  Lordships  have  held  in  Vijaysinh

Chandubha Jadeja (supra) that the requirements of

Section  50  of  the  NDPS  Act  are  mandatory  and,

therefore,  the  provisions  of  Section  50  must  be

strictly complied with.  It is held that 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. It is held that it is equally

mandatory on the part of the authorized officer to

11

make the suspect aware of the existence of his right

to  be  searched  before  a  Gazetted  Officer  or  a

Magistrate, if so required by him and this requires a

strict compliance. It is ruled that the suspect person

may  or  may  not  choose  to  exercise  the  right

provided to him under Section 50 of the NDPS Act

but so far as the officer is concerned, an obligation

is cast upon him under Section 50 of the NDPS Act

to apprise the suspect of his right to be searched

before a Gazetted Officer or a Magistrate. (See also

Ashok  Kumar  Sharma  vs.  State  of  Rajasthan,

2013 (2) SCC 67 and Narcotics Control Bureau vs.

Sukh Dev Raj Sodhi, 2011 (6) SCC 392)

24. Keeping in view the aforementioned principle

of law laid down by this Court, we have to examine

the question arising in this case as to whether the

prosecution  followed  the  mandatory  procedure

12

prescribed under Section 50 of the NDPS Act while

making  search  and  recovery  of  the  contraband

“Charas” from the appellant and, if  so, whether it

was  done  in  the  presence  of  a  Magistrate  or  a

Gazetted  Officer  so  as  to  make  the  search  and

recovery of contraband “Charas” from the appellant

in conformity with the requirements of Section 50.  

25. In our considered view, the evidence adduced

by  the  prosecution  neither  suggested  and  nor

proved that the search and the recovery was made

from  the  appellant  in  the  presence  of  either  a

Magistrate or a Gazetted Officer.

26. It  is  the  case  of  the  prosecution  and  which

found  acceptance  by  the  two  Courts  below  that

since  the  appellant  (accused)  was apprised of  his

right  to  be  searched  in  the  presence  of  either  a

Magistrate or a Gazetted Officer but despite telling

13

him about  his  legal  right  available  to  him under

Section 50 in relation to the search, the appellant

(accused) gave his consent in writing to be searched

by the police officials (raiding party), the two Courts

below came to a conclusion that the requirements of

Section 50 stood fully complied with and hence the

appellant was liable to be convicted for the offence

punishable under  the NDPS Act.

27. We  do  not  agree  to  this  finding  of  the  two

Courts  below  as,  in  our  opinion,  a  search  and

recovery  made  from  the  appellant  of  the  alleged

contraband “Charas” does not satisfy the mandatory

requirements of Section 50 as held by this Court in

the case of  Vijaysinh Chandubha Jadeja (supra).

This we say for the following reasons.

28. First,  it is an admitted fact emerging from the

record  of  the  case  that  the  appellant  was  not

14

produced before any Magistrate or Gazetted Officer;

Second, it is also an admitted fact that due to the

aforementioned  first  reason,  the  search  and

recovery of the contraband “Charas” was not made

from the appellant in the presence of any Magistrate

or Gazetted Officer; Third, it is also an admitted fact

that none of the police officials of the raiding party,

who recovered the contraband “Charas” from him,

was the Gazetted Officer and nor they could be and,

therefore, they were not empowered to make search

and recovery from the appellant of the contraband

“Charas” as provided under Section 50 of the NDPS

Act except in the presence of either a Magistrate or

a  Gazetted  Officer;  Fourth,  in  order  to  make  the

search and recovery of the contraband articles from

the body of  the  suspect,  the  search and recovery

has  to  be  in  conformity  with  the  requirements  of

15

Section  50  of  the  NDPS  Act.  It  is,  therefore,

mandatory  for  the  prosecution  to  prove  that  the

search and recovery was made from the appellant in

the presence of a Magistrate or a Gazetted Officer.  

29. Though, the prosecution examined as many as

five  police  officials  (PW-1  to  PW-5)  of  the  raiding

police  party  but  none  of  them  deposed  that  the

search/recovery  was  made  in  presence  of  any

Magistrate or a Gazetted Officer.  

30.   For the aforementioned reasons,  we are of

the considered opinion that the prosecution was not

able to prove that the search and recovery of  the

contraband (Charas) made from the appellant was

in accordance with the procedure prescribed under

Section 50 of the NDPS Act. Since  the

non-compliance  of  the  mandatory  procedure

prescribed under Section 50 of the NDPS Act is fatal

16

to the prosecution case and, in this case, we have

found that the prosecution has failed to prove the

compliance  as  required  in  law,  the  appellant  is

entitled to claim its benefit to seek his acquittal.  

31. In  the  light  of  the  foregoing  discussion,  the

appeal  succeeds  and  is  allowed.  Impugned

judgment is set aside. As a consequence thereof, the

appellant's  conviction  is  set  aside  and  he  is

acquitted of the charges in question.   

………………………………..J  (R.K. AGRAWAL)

           …..………………………………J.      (ABHAY MANOHAR SAPRE)

New Delhi, April 27, 2018