Holding

The High Court held that the trial court did not commit any error of fact or law and that the prosecution failed to prove the charges beyond reasonable doubt, so the acquittal stands.

Summary

The State of Gujarat appealed the acquittal of Ganpatram Vishnoi and another accused under Sections 17(b) and 22(b) of the NDPS Act, arguing that the trial court failed to appreciate the prosecution's oral and documentary evidence. The police had intercepted the accused, seized 500 g of opium, and recorded the seizure in the presence of local panch witnesses, but the trial court found non‑compliance with mandatory provisions of Sections 42, 50 and 57 of the NDPS Act. The appellant contended that the accused was not informed of his right to be searched before a gazetted officer, that the seizure report was not sent to the superior within 72 hours, and that the investigation log‑books were missing. The respondents argued that the procedural lapses, if any, were not fatal and that the evidence did not establish guilt beyond reasonable doubt. The High Court examined the statutory requirements, held that the trial court had correctly applied the law and found no material error, and therefore confirmed the acquittal. The appeal was dismissed and the bail bond cancelled.

Issues considered

Whether the trial court erred in acquitting the accused despite the seizure of opium.
Whether the mandatory provisions of Sections 42, 50 and 57 of the NDPS Act were complied with during the search and seizure.
Whether the failure to inform the accused of his right under Section 50 vitiates the prosecution's case.
Whether the absence of a log‑book entry and delayed reporting under Section 42 constitute a fatal procedural defect.
Whether the appellate court can overturn an acquittal on the basis of alleged procedural irregularities.

Legislation cited

Code of Criminal Procedure, 1973s. 100, s. 165, s. 313
Indian Evidence Act, 1872
Narcotic Drugs and Psychotropic Substances Act, 1985s. 17(b), s. 22(b), s. 42, s. 50, s. 57

Subjects

NDPS Actsearch and seizureSection 50Section 42procedural complianceacquittalappealevidentiary standardsdouble presumption of innocence

Judgment

R/CR.A/1869/2008 JUDGMENT DATED: 12/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1869 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-

================================================================

Approved for Reporting Yes No
୰
==========================================================
STATE OF GUJARAT
Versus
GANPATRAM SON OF AMRAJI VISHNOI (DHAYAL) & ANR.
================================================================
Appearance:
MS JYOTI BHATT, ADDL.PUBLIC PROSECUTOR for the Appellant(s) No. 1
MR TUSHAR CHAUDHARY(5316) for the Opponent(s)/Respondent(s) No.
1,2
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 12/08/2026

JUDGMENT

1. The appellant- State of Gujarat has preferred this appeal
under Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgment and order of acquittal dated 18.03.2008
passed by the learned Additional Sessions Judge, Fast Track Court
No.3, Diyodar (hereinafter be referred to as “the Trial Court”) in
Special (NDPS) Case No.55 of 2007 whereby the Trial Court has
acquitted the respondent accused from the charges levelled under
Sections 17-B and 22-B of the Narcotics Drugs and Psychotropic
Substance Act, 1985 (hereinafter be referred to as the “N.D.P.S.

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Act”)

2. The facts giving rise to present appeal are that the complainant,
Bhailalbhai Jagjivanbhai, P.I., L.C.B., Palanpur, registered a
complaint against the present accused persons with Diyodar Police
Station, which was registered as II-CR No.3017/2007. It is the case
of the prosecution that on 16.02.2007, the complainant along with
other police staff members, was proceeding from Tharad to Jetda
for investigating the offences registered vide I-CR Nos.17/2007 and
18/2007. At that time, near the road leading to Lavana village, they
intercepted a suspicious person travelling on a motorcycle.
Thereafter, the complainant called two panch witnesses, namely,
Rameshgiri Kantigiri Goswami and Hasmukhbhai Gordhanbhai
Mochi, residents of Lavana, Taluka Diyodar. The complainant
introduced himself and the panch witnesses to the accused and
asked him about his name. The accused disclosed his name as
Ganpatram Amraji Vishnoi.

2.1 The complainant thereafter informed the accused about his
right to be searched in the presence of a Gazetted Officer, to which
the accused replied in the negative. After following the necessary
procedure for search, narcotic substance, namely, "Opium Liquid",
was found in his possession and seized. The complainant asked the
accused whether he possessed any permit or pass for possessing
the said narcotic substance, to which he replied in the negative.

2.2 Thereafter, Unarmed Police Constable Pratapsing Devaji,
Buckle No.1619, was sent to call a person for weighing the seized
narcotic substance. Accordingly, he brought Goldsmith resident of
Lavana, Taluka Diyodar. The seized muddamal was weighed and
found to be 500 grams, contained in a pouch, valued at
approximately Rs.15,000/-. Thereafter, two samples of 50 grams

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each were drawn from the seized substance and were duly sealed
in the presence of the panch witnesses and police staff. It is further
the case of the prosecution that accused No.1 was carrying the said
"Opium" for delivering the same to accused No.2. Accordingly, the
complainant lodged the complaint against the accused persons.

2.3 After completion of the investigation, the charge-sheet
was filed against all the accused persons. Thereafter, charge
was framed against them at Exh.8 for the offences punishable
under Sections 17(b), 22(b), and 29 of the N.D.P.S. Act. The
accused persons pleaded not guilty to the charges and
claimed to be tried. To prove its case the prosecution
examined 15 witnesses and produced 31 documentary
evidences, which read as under:-

Oral Evidence

Sr. Exhibit Name of Witness
No. No.
1 18 Bhaylalbhai Jagjivanbhai- Complainant
2 27 Tejmalbhai Okhabhai- Panch Witness
3 29 Rameshgar Kantigar Goswami- Panch Witness
4 34 Hasmukhbhai Girdharbhai- Panch Witness
5 35 Jamtaji Hinduji Vaghela- Witness
6 36 Udaysing Kuvarbhai Rajput- Witness
7 37 Mansukhbhai Dalpatbhai Soni- Witness
8 41 Maganbhai Harkhabhai- P.S.O. (Police Station
Officer)
9 44 Babulal Ramabhai- Writer Head
10 47 Nitinkumar Manuprasad Bhatt- Witness
11 48 Sherkhan Anwarkhan Chavda- Witness
12 49 Velsing Hamirsing- Witness
13 51 Babubhai Nagjibhai- Witness

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14 60 Dhiraj Jayantilal Lariya- Witness
15 61 Amratbhai Hirabhai Chaudhari- Investigating
Officer (I.O.)

Documentary Evidence

Sr. Exhibit Description of Document
No. No.
1 19 Yadi (memorandum) sent for registration of offence
2 20 Original Complaint
3 21 Copy of wireless message
4 22 Yadi sent to Dy.S.P., Palanpur
5 23 Intimation letter sent to D.S.P. under Section 57
6 24 Dispatch note
7 25 F.S.L. Yadi (Forensic Science Laboratory Memo)
8 28 Panchnama of physical condition of the accused
9 30 Panchnama of the accused and motorcycle
10 31 Slip bearing signatures of panchas and complainant
11 32 Slip bearing signatures of panchas and complainant
12 33 Slip bearing signatures of panchas and complainant
13 38 Certificate issued by the goldsmith (Soni)
14 43 Index / List of documents
15 45 Extract of Station Diary
16 50 Yadi issued by P.S.I. to Head Constable to record
statement of person providing printout
17 52 Letter written by P.S.I. Diyodar to Superintendent of
Police r, L.C.B. (Local Crime Branch)
18 53 Letter written for sending information
19 54 Letter written for sending information
20 55 Letter regarding sending facts/information
21 56 SIM card registration document information
22 57 SIM card information
23 62 Seizure Memo
24 63 Seizure Memo
25 64 Letter from D.S.P.
26 65 F.S.L. Certificate and Yadi for retrieving seized

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property (Muddamal)
27 66 F.S.L. Report
28 67 Copy of R.C. Book (Vehicle Registration Certificate)
29 68 Letter written by D.S.P.
30 69 Letter written to P.S.I.
31 71 Purshis (closing note/application) for closing
evidence

2.4 After evaluating the evidence and after hearing both the sides,
the Trial Court acquitted accused respondents vide judgment and
order dated 18.03.2008 passed in Special (NDPS) Case No.55 of
2007, for the offences punishable under Sections 17(b) and 22(b) of
the N.D.P.S. Act.

2.5 Being aggrieved and dissatisfied with the impugned judgment
and order of acquittal the appellat State has preferred present
appeal.

3. Heard Ms. Jyoti Bhatt, learned APP for the appellant and
Mr.Tushar Chaudhary, learned counsel for the respondents
accused.

4. Learned APP for the appellant has submitted that the impugned
judgment and order passed by the Trial Court is erroneous, illegal
and unjust, and therefore, deserves to be quashed and set aside, as
the Trial Court has failed to properly appreciate the evidence led
by the prosecution in its true and proper perspective. She has
further submitted that the impugned judgment and order passed by
the Trial Court suffers from serious errors of law as well as on
facts.

4.1 Learned APP for the appellant has submitted that the
prosecution examined several witnesses in support of its case and
produced various documentary pieces of evidence on record.

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However, without properly appreciating the oral as well as
documentary evidence in its true and correct perspective, the Trial
Court has erroneously acquitted the accused persons of the
offences with which they were charged. Therefore, the impugned
judgment and order deserves to be quashed and set aside.

4.2 Learned APP for the appellant has submitted that the judgment
and order of acquittal dated 18.03.2008 is contrary to law, the
evidence on record, and the settled principles governing criminal
trials. She has submitted that the learned Trial Court failed to
appreciate that the prosecution proved its case beyond reasonable
doubt through reliable oral and documentary evidence.

4.3 The learned APP for the State contended that the Trial Court
has failed to properly appreciate the oral evidence of 15
prosecution witnesses and 31 documentary evidences produced on
record in support of the prosecution case. The Trial Court has,
therefore, committed a grave error apparent on the face of the
record in not properly appreciating the material evidence available
on record.

4.4 The learned APP further contended that the Trial Court has
erred in holding that the prosecution failed to prove beyond
reasonable doubt that on 16.02.2007 at about 18:15 hours, accused
No.1, Ganpatram Amraji Vishnoi, resident of Sanchore, was found
travelling on motorcycle and was in illegal and conscious
possession of 500 grams of "Opium (Liquid)", valued at Rs.15,000/-,
without any pass or permit. It was further contended that accused
No.1 was found near Saraswati High School, Village Lavana, along
with cash and a mobile phone valued at Rs.17,180/-, and that he
was carrying the said quantity of "Opium (Liquid)" for delivering it
to accused No.2, Jagtabhai Nagjibhai Patel (Chaudhary), resident of

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Dhandav, Taluka Diyodar. Thus, both accused persons were found
involved in transporting and dealing with the said narcotic
substance in furtherance of their common activity and thereby
committed the offences punishable under Sections 17(b) and 22(b)
of the N.D.P.S. Act. The Trial Court has, therefore, committed a
serious error in not properly appreciating the evidence on record.

4.5 The learned APP submitted that the Trial Court failed to
properly appreciate the evidence of the complainant and, by
discarding and disbelieving his testimony, erroneously concluded
that the prosecution had failed to prove its case beyond reasonable
doubt. Such appreciation of evidence is contrary to the material on
record and has resulted in a miscarriage of justice.

4.6 The learned APP further submitted that P.W.8, P.S.O.
Maganbhai Harkhabhai, was examined at Exh.41; P.W.9, Writer
Head Constable Babulal Ramabhai, was examined at Exh.44;
P.W.10, Nitin Prasad Manukumar Bhatt, was examined at Exh.47;
P.W.11, Sherkhan Anwarkhan Chavda, was examined at Exh.48;
and P.W.13, Babubhai Nagjibhai, was examined at Exh.51 on behalf
of the prosecution. According to the learned APP, all these police
witnesses have supported the case of the prosecution. However,
the Trial Court, without properly appreciating their evidence in
light of the other oral and documentary evidence available on
record, committed a grave error in discarding and disbelieving
their testimony and in holding that the prosecution had failed to
prove the charges against the accused persons beyond reasonable
doubt.

4.7 The learned APP submitted that the Trial Court ought to have
properly appreciated the evidence of P.W.15, Investigating Officer
Amratbhai Hirabhai Chaudhary, who was examined at Exh.61. He

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fully supported the case of the prosecution. In his deposition, he
stated that after registration of the FIR by the complainant, the
investigation of the case was entrusted to him. He recorded the
statements of the witnesses, including the statement of
Mansukhbhai Dalpatbhai Soni, who had weighed the recovered
muddamal. He also carried out the necessary investigation,
arrested the other accused, prepared the body-search panchnama
and, after completion of the investigation and receipt of the FSL
certificate, submitted the charge-sheet. The learned APP submitted
that the Trial Court, by discarding and disbelieving the evidence of
the Investigating Officer, committed a grave error in appreciation
of evidence.

4.8 The learned APP submitted that P.W.7, Mansukhbhai
Dalpatbhai Soni, was examined at Exh.37 on behalf of the
prosecution. Though the said witness turned hostile, he produced
the weight certificate relating to the recovered muddamal "Opium"
at Exh.38. The Trial Court ought to have considered the
documentary evidence produced by the said witness along with the
other evidence available on record. Merely because the witness did
not fully support the prosecution case, his evidence and the
document produced by him could not have been discarded without
proper appreciation.

4.9 The learned APP further contended that the Trial Court erred in
holding that the prosecution had failed to prove beyond reasonable
doubt that the muddamal article was seized from accused No.1.
According to the learned APP, the evidence on record clearly
establishes that the muddamal pouch containing the narcotic
substance was recovered from the possession of accused No.1 and
that he was in conscious possession thereof. There was sufficient
material on record to establish the involvement of the accused

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persons in the commission of the alleged offences. The Trial Court,
therefore, ought not to have arrived at a contrary conclusion that
the prosecution had failed to prove the charges beyond reasonable
doubt. She has further submitted that the Trial Court ought to have
properly appreciated the evidence of the aforesaid witnesses,
which clearly disclosed that the necessary procedure prescribed
under the N.D.P.S. Act had been followed by the complainant and
the investigating agency. The evidence on record establishes
compliance with the statutory requirements and supports the
prosecution case.

4.10 The learned APP submitted that the Trial Court has failed to
appreciate the said material evidence in its proper perspective and
has consequently arrived at an erroneous conclusion and
therefore,the impugned judgment and order being contrary to the
evidence on record and the settled principles of law deserves to be
quashed and set aside.

4.11 In support of his submissions learned APP has referred to as
and relied upon the following decisions:-

1. State of Punjab vs. Baldev Sigh reported in 1999 (6) SCC 172;

2. Narendrabhai Dhirajlal Kacha vs. State of Gujarat reported in
2023 (0) AIJEL HC 247162;

3. SK. Raju Alias Abdul Haque Alias Jagga vs. State of West Bengal
reported in (2018) 9 SCC 708

5. On the other hand, Mr. Chaudhary, learned advocate for the
respondents-accused has supported the judgment and order of
acquittal passed by the Trial Court. The learned advocate
appearing for the respondents-accused submitted that the
impugned judgment and order of acquittal passed by the Trial
Court is just, legal and proper and does not call for any

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interference by this Court. It was submitted that the Trial Court
has rightly appreciated the oral as well as documentary evidence
available on record and has recorded its findings on the basis of
proper appreciation of the facts and settled principles of law.

5.1 Learned counsel for the respondents has contended that there
are serious lapses on the part of the investigating agency and that
mandatory statutory provisions were violated during the course of
the investigation. Learned advocate for the respondents-accused
has further submitted that the prosecution has failed to establish
its case against the respondents-accused beyond reasonable doubt.

5.2 Learned advocate for the respondents-accused has submitted
that the prosecution has failed to prove its case beyond reasonable
doubt, as the mere examination of witnesses and production of
documentary evidence do not, by themselves, establish the guilt of
the accused unless such evidence is reliable, cogent and inspires
confidence.

5.3 Learned advocate for the respondents-accused has further
submitted that the prosecution has failed to point out any
perversity, illegality or misreading of the evidence in the impugned
judgment and order passed by the Trial Court. Therefore, the
present appeal is devoid of merit and deserves to be dismissed.

5.4 Learned advocate for the respondents accused has referred to
and relied upon the following decisions:-

1. Karnail Singh vs. State of Haryana dated 29.7.2009 in Criminal
Appeal No.36 of 2003

2.State of Gujarat vs. Ganeshbhai Becharbhai Prajapati dated
15.04.2026 in Criminal Appeal No.632 of 2010.

6. I have perused the relevant documents and material placed on

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record. I have also gone through the judgment and order passed by
the Trial Court as well as the record and proceedings.

7. Upon perusal of the impugned judgment and order, as well as
the submissions advanced by the learned advocates for both sides
and upon appreciation of the deposition of the witnesses, issues
that arises for consideration before this Court are as under:-

Whether the Trial Court committed any error in passing the
impugned judgment and order of acquittal?

Whether the Trial Court, while appreciating the evidence of
the prosecution witnesses, has committed any error of law or
fact?

Whether the impugned judgment and order of acquittal
suffers from any illegality or perversity?

8. In light of the above stated submission and the contentions
raised by both the sides and after going through the impugned
judgment and order of acquittal and the evidence recorded by the
Trial Court the issued framed by the Court for determination is
required to be examined in light of the facts of the present case. It
is the case of the prosecution that the complainant, who was
serving as a Police Inspector with the Local Crime Branch (LCB),
Palanpur, was on duty. On 16.02.2007, the complainant, along with
other police personnel, proceeded from Palanpur to Tharad in
connection with the investigation of an offence registered at
Tharad Police Station vide C.R. No. 14 of 2007 for the offences
punishable under Sections 457 and 380 of the IPC. After visiting
Tharad, they proceeded towards Deodar in connection with the
offences registered at Deodar Police Station vide I-C.R. Nos. 17 of
2007 and 18 of 2007 for the offences punishable under Sections
457 and 380 of the IPC.

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9. While the Police Inspector along with other police personnel
were travelling via Jetara and had reached at village Lawana, the
complainant noticed a motorcycle bearing a Rajasthan registration
number and became suspicious. He, therefore, attempted to
intercept the motorcyclist. However, instead of stopping, the
motorcyclist tried to flee and accelerated the speed of the
motorcycle. The complainant and other police personnel chased
and intercepted him, whereupon he stopped the motorcycle near
the Government School. Thereafter, the Investigating Officer called
for panchas from the local area of Deodar. It is pertinent to note
that, until the panchas arrived, the Investigating Officer did not
make any inquiry or investigation as to why respondent No.1 had
attempted to flee instead of stopping his vehicle.

10. Since respondent No.1 was a permanent resident of Rajasthan
and was not conversant with the Gujarati language, the
complainant-Investigating Officer, in the presence of the panchas
and other police personnel, allegedly asked him whether he desired
to be searched in the presence of a Gazetted Officer. In response
thereto, respondent No.1 allegedly gave his consent that he did not
wish to be searched in the presence of a Gazetted Officer.
Thereafter, his personal search was carried out in the presence of
the panchas, during which one packet was found in his possession.
The substance contained in the packet was suspected to be a
narcotic substance. Consequently, a goldsmith was called with a
weighing machine, and upon weighing, the substance was found to
be opium weighing 500 grams, allegedly recovered from the
possession of respondent No.1. It was further alleged that the said
substance was to be delivered to respondent No.2 at Deodar. On
the basis thereof, the Investigating Officer registered a complaint
at Deodar Police Station for the offences punishable under Sections

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17(b) and 22(b) of the Narcotic Drugs and Psychotropic Substances
Act, 1985. Thereafter, the trial proceeded, during which the
prosecution examined 15 witnesses, including the panch witnesses
and a goldsmith, while the remaining witnesses were police
personnel. The prosecution also produced various documentary
pieces of evidence on record.

11. Now, considering the aforesaid facts, it appears that the police
personnel had originally proceeded for the purpose of investigating
two different offences registered at two different police stations,
namely, Tharad and Deodar. They were travelling in a police jeep in
connection with the said investigation. However, no entry was
made in the station diary or in the log book regarding their
departure for the purpose of investigation. It is provided under the
relevant provisions of the Code of Criminal Procedure as well as
the Police Manual that, whenever an Investigating Officer proceeds
to a particular place during the course of an investigation, the
necessary entry is required to be made in the station diary and,
where applicable, in the log book before proceeding for such
investigation. In the present case, the evidence on record reveals
that no such entry was made either in the station diary or in the log
book. Furthermore, the prosecution has also failed to produce the
relevant details or material pertaining to the cases in connection
with which the police personnel had allegedly proceeded for
investigation.

12. So far as the incident involving the present respondents is
concerned, respondent No.1 was intercepted midway near village
Lawana. At the time when respondent No.1 was intercepted,
respondent No.2 was not present at the spot. It is the case of the
prosecution that, on the basis of the statement allegedly made by
respondent No.1, respondent No.2 came to be implicated in the

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crime in question. Even if the prosecution case is accepted, namely,
that respondent No.1 was found in possession of 500 grams of
opium and that the said opium was allegedly to be delivered to
respondent No.2, serious discrepancies and infirmities have
emerged during the course of the investigation, which have also
been noticed by the Trial Court. As observed by the Trial Court, the
mandatory requirements of Sections 42, 50 and 57 of the NDPS Act
were not duly complied with.

13. In this regard, it is necessary to examine the evidence of the
prosecution witnesses. PW-1, who was the complainant as well as
the Investigating Officer, deposed that respondent No.1 was asked
whether he desired to be searched in the presence of a Gazetted
Officer. However, there is no satisfactory evidence on record to
establish that respondent No.1 had, in fact, understood the said
question and voluntarily declined such a search. In his statement
recorded under Section 313 of the Code of Criminal Procedure,
respondent No.1 specifically denied that the said fact had been
communicated to him. It was also his specific case that no such
question was asked to him by the Investigating Officer. It is further
relevant to note that the complainant himself was a Police
Inspector and, according to the defence, was a Gazetted Officer;
nevertheless, respondent No.1 was allegedly asked whether he
desired to be searched in the presence of a Gazetted Officer.

14. The Trial Court, after appreciating the evidence of PW-1, PW-5
and PW-6, has considered whether the requirements of Section 50
of the NDPS Act were duly complied with and, more particularly,
whether respondent No.1 was informed of his right in a language
known to and understood by him. It has also emerged from the
record that the facts and contents of the FIR were not explained or
communicated to respondent No.1 in a language known to and

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understood by him. The Trial Court has considered the aforesaid
aspects in detail from paragraph No.9 onwards. It has been
specifically noticed that PW-1, who was the complainant and who
initially registered the offence, did not disclose the name of
respondent No.2 at the time of registration of the FIR. The name
and role of respondent No.2 were not known at that stage. It has
further been observed that the complainant, being a Police
Inspector who himself registered the FIR against respondent No.1,
could not have recorded the statement of the accused for the
purpose of implicating respondent No.2 and he has not right to
record the statement. It is also evident from the FIR that the role of
respondent No.2 was nowhere mentioned therein and that
respondent No.2 came to be arraigned as an accused only
purportedly on the basis of the statement of respondent No.1.

15. The Trial Court, after considering the aforesaid submissions
and upon a detailed appreciation of the evidence of the prosecution
witnesses, has discussed the entire aspect up to paragraph No.26
of the impugned judgment. After assigning cogent reasons, the
Trial Court has rightly disbelieved the case of the prosecution. It
has also been observed by the Trial Court that the complainant was
a Police Inspector serving in the Local Crime Branch, whose office
was situated on the first floor of the premises, while the office of
the District Superintendent of Police, Banaskantha, was situated on
the ground floor of the same premises. As contemplated under
Section 57 of the NDPS Act, the concerned officer is required to
make a report of the arrest and seizure to his immediate superior
officer within the prescribed period.

16. In the present case, however, the prosecution has failed to
establish that the complainant or the Investigating Officer had
immediately informed the District Superintendent of Police

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regarding the seizure of the alleged contraband or the arrest of
respondent No.1 in connection with the recovery of the alleged
opium from his possession. Thus, the prosecution has failed to
establish due compliance with the mandatory statutory
requirements, particularly those contemplated under Sections 42,
50 and 57 of the NDPS Act. In view of the aforesaid serious lapses
and non-compliance with the mandatory provisions of law, the Trial
Court was justified in extending the benefit of doubt to the
respondent-accused and in recording an order of acquittal.

17. At this stage, it is appropriate to refer Sections 17, 22, 42, 50,
52 and Section 57 of the NDPS Act which read as under:-

“17. Punishment for contravention in relation to prepared
opium.—Whoever, in contravention of any provision of this Act or
any rule or order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses prepared opium shall be
punishable,—

(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to 1 [one year], or with
fine which may extend to ten thousand rupees, or with both; or

(b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years, and with
fine which may extend to one lakh rupees; or

(c) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten
years but which may extend to twenty years, and shall also be
liable to fine which shall not be less than one lakh rupees but which
may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.

22. Punishment for contravention in relation to psychotropic
substances.—Whoever, in contravention of any provision of this
Act or any rule or order made or condition of licence granted
thereunder, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses any psychotropic

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substance shall be punishable,—

(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to 5 [one year], or with
fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years, and with
fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten
years but which may extend to twenty years, and shall also be
liable to fine which shall not be less than one lakh rupees but which
may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees

42. Power of entry, search, seizure and arrest without
warrant or authorisation.—(l) Any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the departments
of central excise, narcotics, customs, revenue intellegence or any
other department of the Central Government including para-
military forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or
constable) of the revenue, drugs control, excise, police or any other
department of a State Government as is empowered in this behalf
by general or special order of the State Government, if he has
reason to believe from personal knowledge or information given by
any person and taken down in writing that any narcotic drug, or
psychotropic substance, or controlled substance in respect of
which an offence punishable under this Act has been committed or
any document or other article which may furnish evidence of the
commission of such offence or any illegally acquired property or
any document or other article which may furnish evidence of
holding any illegally acquired property which is liable for seizure or
freezing or forfeiture under Chapter VA of this Act is kept or
concealed in any building, conveyance or enclosed place, may
between sunrise and sunset,—

(a) enter into and search any such building, conveyance or
place;

(b) in case of resistance, break open any door and remove
any obstacle to such entry;

(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or

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conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other
article which he has reason to believe may furnish evidence
of the commission of any offence punishable under this Act
or furnish evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have committed
any offence punishable under this Act:

[Provided that in respect of holder of a licence for manufacture of
manufactured drugs or psychotropic substances or controlled
substances granted under this Act or any rule or order made
thereunder, such power shall be exercised by an officer not below
the rank of sub-inspector:

Provided further that] if such officer has reason to believe that a
search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility for
the escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and
sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy-two hours send a copy thereof to
his immediate official superior.

50. Conditions under which search of persons shall be
conducted.—

(1) When any officer duly authorised under section 42 is about to
search any person under the provisions of section 41, section 42 or
section 43, he shall, if such person so requires, take such person
without unnecessary delay to nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall direct that
search be made.

(4) No female shall be searched by anyone excepting a female.

[(5) When an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to

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the nearest Gazetted Officer or Magistrate without the possibility
of the person to be searched parting with possession of any
narcotic drug or psychotropic substance, or controlled substance
or article or document, he may, instead of taking such person to
the nearest Gazetted Officer or Magistrate, proceed to search the
person as provided under section100 of the Code of Criminal
Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his
immediate official superior.

[50A. Power to undertake controlled delivery.—The Director
General of Narcotics Control Bureau constituted under sub-section
(3) of section 4 or any other officer authorised by him in this behalf,
may, notwithstanding anything contained in this Act, undertake
controlled delivery of any consignment to—
(a) any destination in India;

(b) a foreign country, in consultation with the competent authority
of such foreign country to which such consignment is destined, in
such manner as may be prescribed.

52. Disposal of persons arrested and articles seized.—(1) Any
officer arresting a person under section 41, section 42, section 43
or section 44 shall, as soon as may be, inform him of the grounds
for such arrest.

(2) Every person arrested and article seized under warrant issued
under sub-section (1) of section 41 shall be forwarded without
unnecessary delay to the Magistrate by whom the warrant was
issued.

(3) Every person arrested and article seized under sub-section (2)
of section 41, section 42, section 43 or section 44 shall be
forwarded without unnecessary delay to—

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under section 53.

(4) The authority or officer to whom any person or article is
forwarded under sub-section (2) or sub-section (3) shall, with all
convenient despatch, take such measures as may be necessary for
the disposal according to law of such person or article.

[52A. Disposal of seized narcotic drugs and psychotropic
substances.— [(1) The Central Government may, having regard to
the hazardous nature, vulnerability to theft, substitution, constraint
of proper storage space or any other relevant consideration, in

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respect of any narcotic drugs, psychotropic substances, controlled
substances or conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances, controlled
substances or conveyance or class of narcotic drugs, class of
psychotropic substances, class of controlled substances or
conveyances, which shall, as soon as may be after their seizure, be
disposed of by such officer and in such manner as that Government
may, from time to time, determine after following the procedure
hereinafter specified.]

(2) Where any [narcotic drugs, psychotropic substances, controlled
substances or conveyances] has been seized and forwarded to the
officer-in-charge of the nearest police station or to the officer
empowered under section 53, the officer referred to in sub-section
(1) shall prepare an inventory of such 4 [narcotic drugs,
psychotropic substances, controlled substances or conveyances]
containing such details relating to their description, quality,
quantity, mode of packing, marks, numbers or such other
identifying particulars of the 4 [narcotic drugs, psychotropic
substances, controlled substances or conveyances] or the packing
in which they are packed, country of origin and other particulars as
the officer referred to in sub-section (1) may consider relevant to
the identity of the 4 [narcotic drugs, psychotropic substances,
controlled substances or conveyances] in any proceedings under
this Act and make an application, to any Magistrate for the purpose
of—

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such magistrate, photographs of 5
[such drugs, substances or conveyances] and certifying such
photographs as true; or

(c) allowing to draw representative samples of such drugs or
substances, in the presence of such magistrate and certifying the
correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of
1974), every court trying an offence under this Act, shall treat the
innventory, the photographs of 1 [narcotic drugs, psychotropic
substances, controlled substances or conveyances] and any list of
samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such offence.]

57. Report of arrest and seizure.—Whenever any person makes
any arrest or seizure under this Act, he shall, within forty-eight
hours next after such arrest or seizure, make a full report of all the

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particulars of such arrest or seizure to his immediate official
superior.

[57A. Report of seizure of property of the person arrested by the
notified officer.—Whenever any officer notified under section 53
makes an arrest or seizure under this Act, and the provisions of
Chapter VA apply to any person involved in the case of such arrest
or seizure, the officer shall make a report of the illegally acquired
properties of such person to the jurisdictional competent authority
within ninety days of the arrest or seizure].”

18. Now, considering the above referred provision of the NDPS Act,
the prosecution miserably failed to establish the compliance of the
above referred provision of the Act.

19. Even the Trial Court has referred the decision of the
Honourable Apex Court in the case of State of Punjab vs. Balbir
Singh reported in AIR 1994 SC 1872, whereby Hon’ble Apex
Court has held as under:-

“Head Note (D) Narcotic Drugs and Psychotropic Substance Act
(61 of 1985), Ss. 50, 41, 42 - Search and Seizure - On prior
information empowered officer acting under S.41(2) of S.42-Should
comply with provisions of S.50-Provisions of S.50 are mandatory.

17. One another important question that arises for consideration is
whether failure to comply with the conditions laid down in Section
50 of the NDPS Act by the empowered or authorised officer while
conducting the search, affects the prosecution case. The said
provision (Section 50) lays down that any officer duly authorised
under Section 42, who is about to search any person under the
provisions of Sections 41, 42 and 43, shall, if such person so
requires, take him without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in Section 42
or to the nearest Magistrate and if such requisition is made by the
person to be searched, the authorised officer concerned can detain
him until he can produce him before such Gazetted Officer or the
Magistrate. After such production, the Gazetted Officer or the
Magistrate, if sees no reasonable ground for search, may discharge
the person. But otherwise he shall direct that the search be made.
To avoid humiliation to females, it is also provided that no female
shall be searched by anyone except a female. The words "if the
person to be searched so desires" are important. One of the
submissions is whether the person who is about to be searched
should by himself make a request or whether it is obligatory on the
part of the empowered or the authorised officer to inform such

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person that if he so requires, he would be produced before a
Gazetted Officer or a Magistrate and thereafter the search would
be conducted. In the context in which this right has been
conferred, it must naturally be presumed that it is imperative on
the part of the officer to inform the person to be searched of his
right that if he so requires to be searched before a Gazetted Officer
or a Magistrate. To us, it appears that this is a valuable right given
to the person to be searched in the presence of a Gazetted Officer
or a Magistrate if he so requires, since such a search would impart
much more authenticity and creditworthiness to the proceedings
while equally providing an important safeguard to the accused. To
afford such an opportunity to the person to be searched, he must
be aware of his right and that can be done only by the authorised
officer informing him. The language is clear and the provision
implicitly makes it obligatory on the authorised officer to inform
the person to be searched of his right.

21. In Miranda v. Arizona17 the Court, considering the question
whether the accused be apprised of his right not to answer and
keep silent while being interrogated by the police, observed thus :

"At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and unequivocal
terms that he has the right to remain silent. For those unaware of
the privilege, the warning is needed simply to make them aware of
it the threshold requirement for an intelligent decision as to its
exercise. More important, such a warning is an absolute
prerequisite in overcoming the inherent pressures of the
interrogation atmosphere."
It was further observed thus :

"The warning of the right to remain silent must be accompanied by
the explanation that anything said can and will be used against the
individual in court. This warning is needed in order to make him
aware not only of the privilege, but also of the consequences of
foregoing it. It is only through an awareness of these consequences
that there can be any assurance of real understanding and
intelligent exercise of the privilege. Moreover, this warning may
serve to make the individual more acutely aware that he is faced
with a phase of the adversary system that he is not in the presence
of persons acting solely in his interest."
When such is the importance of a right given to an accused person
in custody in general, the right by way of safeguard conferred
under Section 50 in the context is all the more important and
valuable. Therefore it is to be, taken as an imperative requirement
on the part of the officer intending to search to inform the person
to be searched of his right that if he so chooses, he will be
searched in the presence of a Gazetted Officer or a Magistrate.
Thus the provisions of Section 50 are mandatory.

25. The question considered above arise frequently before the trial

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courts. Therefore we find it necessary to set out our conclusions
which are as follows :

(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a
person in the normal course of investigation into an offence or
suspected offences as provided under the provisions of CrPC and
when such search is completed at that stage Section 50 of the
NDPS Act would not be attracted and the question of complying
with the requirements thereunder would not arise. If during such
search or arrest there is a chance recovery of any narcotic drug or
psychotropic substance then the police officer, who is not
empowered, should inform the empowered officer who should
thereafter proceed in accordance with the provisions of the NDPS
Act. If he happens to be an empowered officer also, then from that
stage onwards, he should carry out the investigation in accordance
with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue
warrant for the arrest or for the search in respect of offences
punishable under Chapter IV of the Act etc. when he has reason to
believe that such offences have been committed or such substances
are kept or concealed in any building, conveyance or place. When
such warrant for arrest or for search is issued by a Magistrate who
is not empowered, then such search or arrest if carried out would
be illegal.

Likewise only empowered officers or duly authorized officers as
enumerated in Sections 41(2) and 42(1) can act under the
provisions of the NDPS Act. If such arrest or search is made under
the provisions of the NDPS Act by anyone other than such officers,
the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the
authorisation to his subordinate officer to carry out the arrest of a
person or search as mentioned therein. If there is a contravention,
that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior
information given by any person, that should necessarily be taken
down in writing. But if he has reason to believe from personal
knowledge that offences under Chapter IV have been committed or
materials which may furnish evidence of commission of such
offences are concealed in any building etc. he may carry out the
arrest or search without a warrant between sunrise and sunset and
this provision does not mandate that he should record his reasons
of belief. But under the proviso to Section 42(1) if such officer has
to carry out such search between sunset and sunrise, he must
record the grounds of his belief.

To this extent these provisions are mandatory and contravention of

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the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down
any information in writing or records the grounds under proviso to
Section 42(1) should forthwith send a copy thereof to his
immediate official superior. If there is total non-compliance of this
provision the same affects the prosecution case. To that extent it is
mandatory. But if there is delay whether it was undue or whether
the same has been explained or not, will be a question of fact in
each case.

(4-A) If a police officer, even if he happens to be an "empowered"
officer while effecting an arrest or search during normal
investigation into offences purely under the provisions of Cr. PC
fails to strictly comply with the provisions 'of Sections 100 and 165
Cr. PC including the requirement to record reasons, such failure
would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under
Section 41(2) of the Act carries out a search, he would be doing so
under the provisions of Cr. PC namely Sections 100 and 165 Cr. PC
and if there is no strict compliance with the provisions of Cr. PC
then such search would not per se be illegal and would not vitiate
the trial.

The effect of such failure has to be borne in mind by the courts
while appreciating the evidence in the facts and circumstances of
each case.

(5) On prior information the empowered officer or authorised
officer while acting under Sections 41(2) or 42 should comply with
the provisions of Section 50 before the search of the person is
made and such person should be informed that if he so requires, he
shall be produced before a Gazetted Officer or a Magistrate as
provided thereunder. It is obligatory on the part of such officer to
inform the person to be searched. Failure to inform the person to
be searched and if such person so requires, failure to take him to
the Gazetted Officer or the Magistrate, would amount to non-
compliance of Section 50 which is mandatory and thus it would
affect the prosecution case and vitiate the trial. After being so
informed whether such person opted for such a course or not
would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps
to be taken by the officers after making arrest or seizure under
Sections 41 to 44 are by themselves not mandatory. If there is non-
compliance or if there are lapses like delay etc. then the same has
to be examined to see whether any prejudice has been caused to
the accused and such failure will have a bearing on the
appreciation of evidence regarding arrest or seizure as well as on
merits of the case

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20. At this stage, it is appropriate to refer the the decision in case
of H.I. Majmudar Intelligence Officer vs. Santosh Pandurang
Setty reported in 2026 (0) AIJEL HC 253136, whereby the
Hon’ble Apex Court has held as under:-

‘Heard Note (c) Narcotic Drugs and Psychotropic Substances Act,
1985, Ss. 42, 50 and 57- Search and seizure Mandatory provisions -
Non-compliance - At the time of search and seizure, there was
clear violation of S. 42 of the NDPS Act - Held, provision of search
and seizure under S. 42 is mandatory and non-compliance thereof
is impermissible under law - Reliance placed on Boota Singh v.
State of Haryana, (2021) 19 SCC 606; Karnail Singh v. State of
Haryana, (2009) 8 SCC 539; Sukhdev Singh v. State of Haryana,
(2013) 2 SCC 212; State of Rajasthan v. Jagraj Singh @ Hansa,
(2016) 11 SCC 687.

8. Further, re-appreciating the evidence, it appears that, as per the
case of the prosecution, the statements of the witnesses were
recorded and as per the case of the prosecution, the accused Nos.
1 to 3 were engaged in transportation of contraband, and the said
fact is revealed on basis of statements of the co-accused i.e.,
accused Nos. 2 and 3, but nowhere has any evidence supported the
said contention, and in absence of any legal evidence qua
involvement of the accused, more particularly how and from where
the contraband was loaded and shifted to the godown, no evidence
on record, and even no independent witness has supported the
case of the prosecution qua the alleged conspiracy or meeting of
minds on the part of the accused persons. Even as per the
complaint, the prosecution has relied upon the statements of the
accused persons as incriminating evidence, and such inculpatory
statements are also not true which support any evidence and no
corroborative piece of evidence is on record to show that the
accused has hatched conspiracy and engaged in transportation of
huge contraband. The only evidence led before the learned
Sessions Court is that the accused No.2 was present at the time of
raid, and it is stated that contraband was seized from his
possession but no evidence qua accused Nos. 1 and 3 has been
collected. Not only that, the ownership of the godown is also not
proved and the owner of the godown is not cited as a witness. The
independent witness, Deepak Parikh, turned hostile and has not
supported the case of the prosecution. Even based on whatever
allegations are levelled against the accused and evidence led, it
clearly reveals that the prosecution has not followed the mandatory
provisions for search and seizure under the NDPS Act. At the time
of search, there was a clear violation of Section 42 of the NDPS Act
and the learned Sessions Judge has also assigned reason for that
qua violation of Sections 42, 50 and 57 of the NDPS Act. The

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provision of search and seizure under Section 42 is mandatory and
in this regard, reference is required to be made to the judgments of
the Hon'ble Apex Court in the case of Boota Singh Vs. The State of
Haryana reported in (2021) 19 SCC 606; Karnail Singh Vs. State of
Haryana reported in (2009) 8 SCC 539; Sukhdev Singh Vs. State of
Haryana, reported in (2013) 2 SCC 212, and State of Rajasthan Vs.
Jagraj Singh @ Hansa, reported in (2016) 11 SCC 687. Non-
compliance of the mandatory provision of Section 42 is absolutely
clear from the record and such non-compliance is impermissible
under the law. Hence, the learned Sessions Judge has not
committed any error in recording findings qua non-compliance of
mandatory provisions under the NDPS Act.”

21. In the decision in case of Karnail Singh (supra) the
Hon’ble Apex Court has held as under:-

“(6) In the light of the above decisions and the principles
enunciated therein, it would be appropriate to refer to Section 42
of the NDPS Act which is relevant for the present purpose as it
stood before its amendment by Act 9 of 2001. It reads as under:-

"42. Power of entry, search, seizure and arrest without warrant or
authorisation.-- (1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any other
department of the Central Government or of the Border Security
Force as is empowered in this behalf by general or special order by
the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the revenue,
drugs control, excise, police or any other department of a State
Government as is empowered in this behalf by general or special
order of the State Government, if he has reason to believe from
personal knowledge or information given by any person and taken
down in writing that any narcotic drug, or psychotropic substance,
in respect of which an offence punishable under Chapter IV has
been committed or any document or other article which may
furnish evidence of the commission of such offence is kept or
concealed in any building, conveyance or enclosed place, may,
between sunrise and sunset,--
(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove
any obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under Chapter IV relating to
such drug or substance; and

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(d) detain and search, and, if he thinks proper, arrest any person
whom he has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or substance:

Provided that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording
opportunity for the concealment of evidence or facility for the
escape of an offender, he may enter and search such building,
conveyance or enclosed place at any time between sunset and
sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the proviso
thereto, he shall forthwith send a copy thereof to his immediate
official superior."

Sub-section (2) as replaced by Act 9 of 2001 is extracted below:

"(2) Where an officer takes down any information in writing under
sub-Section (1) or records grounds for his belief under the proviso
thereto, he shall within seventy two hours send a copy thereof to
his immediate official superior."
15) Under Section 42(2) as it stood prior to amendment such
empowered officer who takes down any information in writing or
records the grounds under proviso to Section 42(1) should
forthwith send a copy thereof to his immediate official superior. If
there is total non-compliance of this provision the same would
adversely affect the prosecution case and to that extent it is
mandatory. But if there is delay whether it was undue or whether
the same has been explained or not, will be a question of fact in
each case, it is to be concluded that the mandatory enforcement of
the provisions of Section 42 of the Act non-compliance of which
may vitiate a trial has been restricted only to the provision of
sending a copy of the information written down by the empowered
officer to immediate official superior and not to any other condition
of the Section. Abdul Rashid (supra) has been decided on
01.02.2000 but thereafter Section 42 has been amended with effect
from 02.10.2001 and the time of sending such report of the
required information has been specified to be within 72 hours of
writing down the same. The relaxation by the legislature is
evidently only to uphold the object of the Act. The question of
mandatory application of the provision can be answered in the light
of the said amendment. The non-compliance of the said provision
may not vitiate the trial if it does not cause any prejudice to the
accused.

17. In conclusion, what is to be noticed is Abdul Rashid did not
require literal compliance with the requirements of Sections 42(1)
and 42(2) nor did Sajan Abraham hold that the requirements of
Section 42(1) and 42(2) need not be fulfilled at all. The effect of the
two decisions was as follows :

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(a) The officer on receiving the information (of the nature referred
to in Sub-section (1) of section

42) from any person had to record it in writing in the concerned
Register and forthwith send a copy to his immediate official
superior, before proceeding to take action in terms of clauses (a) to
(d) of section 42(1).

(b) But if the information was received when the officer was not in
the police station, but while he was on the move either on patrol
duty or otherwise, either by mobile phone, or other means, and the
information calls for immediate action and any delay would have
resulted in the goods or evidence being removed or destroyed, it
would not be feasible or practical to take down in writing the
information given to him, in such a situation, he could take action
as per clauses (a) to (d) of section 42(1) and thereafter, as soon as
it is practical, record the information in writing and forthwith
inform the same to the official superior .

(c) In other words, the compliance with the requirements of
Sections 42 (1) and 42(2) in regard to writing down the information
received and sending a copy thereof to the superior officer, should
normally precede the entry, search and seizure by the officer. But
in special circumstances involving emergent situations, the
recording of the information in writing and sending a copy thereof
to the official superior may get postponed by a reasonable period,
that is after the search, entry and seizure. The question is one of
urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1)
and (2) of section 42 is impermissible, delayed compliance with
satisfactory explanation about the delay will be acceptable
compliance of section 42. To illustrate, if any delay may result in
the accused escaping or the goods or evidence being destroyed or
removed, not recording in writing the information received, before
initiating action, or non-sending a copy of such information to the
official superior forthwith, may not be treated as violation of
section 42. But if the information was received when the police
officer was in the police station with sufficient time to take action,
and if 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. Similarly, where the police officer does not
record the information at all, and does not inform the official
superior at all, then also it will be a clear violation of section 42 of
the Act. Whether there is adequate or substantial compliance with
section 42 or not is a question of fact to be decided in each case.
The above position got strengthened with the amendment to
section 42 by Act 9 of 2001”.

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22. In the decision in case of Vijaysinh Chandubha Jadeja
vs. State of Gujarat reported in 2011(1) SCC 609, the
Hon’ble Apex Court has held as under:-
“18.Although the Constitution Bench did not decide in absolute
terms the question whether or not Section 50 of the NDPS Act was
directory or mandatory yet it was held that provisions of sub-
section (1) of Section 50 make it imperative for the empowered
officer to "inform" the person concerned (suspect) about the
existence of his right that if he so requires, he shall be searched
before a gazetted officer or a Magistrate; failure to "inform" the
suspect about the existence of his said right would cause prejudice
to him, and in case he so opts, failure to conduct his search before
a gazetted officer or a Magistrate, may not vitiate the trial but
would render the recovery of the illicit article suspect and vitiate
the conviction and sentence of an accused, where the conviction
has been recorded only on the basis of the possession of the illicit
article, recovered from the person during a search conducted in
violation of the provisions of Section 50 of the NDPS Act. The Court
also noted that it was not necessary that the information required
to be given under Section 50 should be in a prescribed form or in
writing but it was mandatory that the suspect was made aware of
the existence of his right to be searched before a gazetted officer
or a Magistrate, if so required by him. We respectfully concur with
these conclusions. Any other interpretation of the provision would
make the valuable right conferred on the suspect illusory and a
farce.

19.As noted above, sub-sections (5) and (6) were inserted in
Section 50 by Act 9 of 2001. It is pertinent to note that although by
the insertion of the said two sub-sections, the rigour of strict
procedural requirement is sought to be diluted under the
circumstances mentioned in the sub- sections, viz. when the
authorised officer has reason to believe that any delay in search of
the person is fraught with the possibility of the person to be
searched parting with possession of any narcotic drug or
psychotropic substance etc., or article or document, he may
proceed to search the person instead of taking him to the nearest
gazetted officer or Magistrate. However, even in such cases a
safeguard against any arbitrary use of power has been provided
under sub-section (6). Under the said sub-section, the empowered
officer is obliged to send a copy of the reasons, so recorded, to his
immediate official superior within seventy two hours of the search.
In our opinion, the insertion of these two sub-sections does not
obliterates the mandate of sub-section (1) of Section 50 to inform
the person, to be searched, of his right to be taken before a
gazetted officer or a Magistrate. The object and the effect of
insertion of sub-sections (5) and (6) were considered by a
Constitution Bench of this Court, of which one of us (D.K. Jain, J.)
was a member, in Karnail Singh Vs. State of Haryana13. Although

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in the said decision the Court did observe that by virtue of insertion
of sub-sections (5) and (6), the mandate given in Baldev Singh's
case (supra) is diluted but the Court also opined that it cannot be
said that by the said insertion, the protection or safeguards given
to the suspect have been taken away completely. The Court
observed :-

"Through this amendment the strict procedural requirement as
mandated by Baldev Singh case was avoided as relaxation and
fixing of the reasonable time to send the record to the superior
official as well as exercise of Section 100 CrPC was included by the
legislature. The effect conferred upon the previously mandated
strict compliance with Section 50 by Baldev Singh case was that
the procedural requirements which may have handicapped an
emergency requirement of search and seizure and give the suspect
a chance to escape were made directory based on the
reasonableness of such emergency situation. Though it cannot be
said that the protection or safeguard given to the suspects have
been taken away completely but certain flexibility in the procedural
norms were adopted only (2009) 8 SCC 539 to balance an urgent
situation. As a consequence the mandate given in Baldev Singh
case is diluted."

22.In view of the foregoing discussion, we are of the firm opinion
that the object with which right under Section 50(1) of the NDPS
Act, by way of a safeguard, has been conferred on the suspect, viz.
to check the misuse of power, to avoid harm to innocent persons
and to minimise the allegations of planting or foisting of false cases
by the law enforcement agencies, it would be imperative on the
part of the empowered officer to apprise the person intended to be
searched of his right to be searched before a gazetted officer or a
Magistrate. We have no hesitation in holding that in so far as the
obligation of the authorised officer under sub-section (1) of Section
50 of the NDPS Act is concerned, it is mandatory and requires a
strict compliance. Failure to comply with the provision would
render the recovery of the illicit article suspect and vitiate the
conviction if the same is recorded only on the basis of the recovery
of the illicit article from the person of the accused during such
search. Thereafter, the suspect may or may not choose to exercise
the right provided to him under the said provision. As observed in
Re Presidential Poll14, it is the duty of the courts to get at the real
intention of the Legislature by carefully attending to the whole
scope of the provision to be construed. "The key to the opening of
every law is the reason and spirit of the law, it is the animus
imponentis, the intention of the law maker expressed in the law
itself, taken as a whole." We are of the opinion that the concept of
"substantial compliance" with the requirement of Section 50 of the
NDPS Act introduced and read into the mandate of the said Section
in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is
neither borne out from the language of sub-section (1) of Section
50 nor it is in consonance with the dictum laid down in Baldev

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Singh's case (supra). Needless to add that the question whether or
not the procedure prescribed has been followed and the
requirement of Section 50 had been met, is a matter of trial. It
would neither be possible nor feasible to lay down any absolute
formula in that behalf. We also feel that though Section 50 gives an
option to the empowered officer to take such person (suspect)
either before the nearest gazetted officer or the Magistrate but in
order to impart authenticity, transparency and creditworthiness to
the entire proceedings, in the first instance, an endeavour should
be to produce the suspect before the nearest Magistrate, who
enjoys more confidence of (1974) 2 SCC 33 the common man
compared to any other officer. It would not only add legitimacy to
the search proceedings, it may verily strengthen the prosecution as
well.”

23. In the decision in case of State of Himachal Pradesh vs.
Surat Singh reported in 2026 (0) AIJEL SC 76708 the Hon’ble
Apex Court has held as under:-

“18. Their lordships of the Hon'ble Supreme Court in the case of
Suresh and others versus State of Madhya Pradesh, reported in
(2013) 1 SCC 550, have held that in a case where the accused were
merely asked whether they would offer their personal search to
police officer concerned or to gazetted officer and the appellants
gave their consent for their personal search by police officer
concerned, it will amount to non-compliance of Section 50(1) of the
ND & PS Act. Their lordships have held as follows:

"16) The above Panchnama indicates that the appellants were
merely asked to give their consent for search by the police party
and not apprised of their legal right provided under Section 50 of
the NDPS Act to refuse/to allow the police party to take their
search and opt for being searched before the Gazetted officer or by
the Magistrate. In other words, a reading of the Panchnama makes
it clear that the appellants were not apprised about their right to
be searched before a gazetted officer or a Magistrate but consent
was sought for their personal search. Merely asking them as to
whether they would offer their personal search to him, i.e. the
police officer or to gazetted officer may not satisfy the protection
afforded under Section 50 of the NDPS Act as interpreted in Baldev
singh's case.

17. Further a reading of the judgments of the trial Court and the
High Court also show that in the presence of Panchas, the SHO
merely asked all the three appellants for their search by him and
they simply agreed. This is reflected in the Panchnama. Though in
Baldev Singh's case, this Court has not expressed any opinion as to
whether the provisions of Section 50 are mandatory or directory
but "failure to inform" the person concerned of his right as

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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. In Vijaysinh
Chan Jadeja's case (supra), recently the Constitution Bench has
explained the mandate provided under sub-section (1) of Section
50 and concluded that it is mandatory and requires strict
compliance. The Bench also held that failure to comply with the
provision would render the recovery of the illicit article suspect
and vitiate the conviction if the same is recorded only on the basis
of the recovery of the illicit article from the person of the accused
during such search. The concept of substantial compliance as noted
in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra)
were not acceptable by the Constitution Bench in Vijaysinh
Chandubha Jadeja, accordingly, in view of the language as evident
from the panchnama which we have quoted earlier, we hold that, in
the case on hand, the search and seizure of the suspect from the
person of the appellants is bad and conviction is unsustainable in
law."

18. Their lordships of the Hon'ble Supreme Court in case of State
of Rajasthan versus Parmanand and another, reported in (2014) 5
SCC 345, have held that if merely a bag is carried by person is
searched without there being any search of his person, S. 50 will
have no application but if bag carried by him is searched and his
person is also searched, S. 50 would be attracted. Their lordships
have also held that it was improper for PW-10 S.I. "Q" to tell
respondents that a third alternative was available. It has been held
as follows:

15. “Thus, if merely a bag carried by a person is searched without
there being any search of his person, Section 50 of the NDPS Act
will have no application. But if the bag carried by him is searched
and his person is also searched, Section 50 of the NDPS Act will
have application. In this case, respondent No.1 Parmanand's bag
was searched. From the bag, opium was recovered. His personal
search was also carried out. Personal search of respondent No.2
Surajmal was also conducted. Therefore, in light of judgments of
this Court mentioned in the preceding paragraphs, Section 50 of
the NDPS Act will have application.”

24. It is also worthwhile to refer the decision of the Hon’ble Apex
Court in case of State of Rajasthan vs. Jag Raj Singh reported
in 2016 (11) SCC 687 and in the case of Boota Singh vs.
State of Haryana reported in 2021 (19) SCC 606 whereby in
similar set of facts the Hon’ble Apex Court has deal with Sections
42, 43 and 50 of the NDPS Act.

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25. Furthermore, though the police personnel had gone to
investigate offenses in Diyodar and Tharad, despite having traveled
by vehicle, no logbook of that vehicle has been produced, nor have
any documents concerning the investigation of those offenses been
submitted on record. Normally, when a person involved in a crime
is fleeing with contraband opium as alleged by the complainant,
and the police are pursuing them, the accused would naturally
attempt to discard such contraband. However, no such attempt was
made here. Moreover, the prosecution's evidence claiming that
after capturing the accused, no conversation or interrogation took
place with them until the panch witnesses arrived is far from
reality, creates suspicion, and is unacceptable. Therefore, the the
decision of Hon’ble Court in the case of State of Punjab vs.
Balbir Singh (supra) is applicable in terms of all the facts,
evidence, and law in this case.

26. Further, on perusal of the record of the appeal, it
transpires that the respondent-accused has established his
innocence before the Trial Court and that, after due
appreciation of the oral as well as documentary evidence and
other material placed on record, the Trial Court has rightly
passed the impugned judgment and order of acquittal. The
findings recorded by the Trial Court are just, proper and in
accordance with the settled principles of law and, therefore,
no interference is warranted by this Court.

27. It is well settled by catena of decisions that the Appellate
Court has full power to review, re-appreciate and reconsider
the evidence upon which the order of acquittal is founded.
However, Appellate Court must bear in mind that in case of

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acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of their
innocence is further reinforced, reaffirmed and strengthened
by the trial Court.

28. Further, if two reasonable conclusions 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. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether the accused are connected with the commission

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of the crime with which he is charged.

29. The scope and principles are enunciated by the Hon’ble
Apex Court in case of Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415, more particularly
paragraph Nos. 42 and 43, which was subsequently re-
affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State
of Bihar and another, reported in [2022] 3 SCC 471,
wherein, the Hon’ble Apex Court has enunciated the general
principles in case of acquittal, more particularly in paragraph
No. 26 the general principles are set out by the Hon’ble Apex
Court based upon various decisions of the Hon’ble Apex
Court. Then in case of Babu Sahebagouda Rudragoudar
Vs. State of Karnataka, reported in AIR 2024 SC 2252 =
(2024) 8 SCC 149, the Hon'ble Apex Court has dealt with
the similar issue, more particularly, in paragraph Nos. 37 to
40. Hence, I am in complete agreement with the findings
recorded by the trial Court.

30. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the
Hon’ble Supreme Court has held and observed in paras-20
and 21 as under:-

“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa and others vs.
State of Karnataka , regarding the power of the appellate Court
while dealing with an appeal against a judgment of acquittal. The
principles read thus:

“42. …. (1) An appellate court has full power to review,

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reappreciate and reconsider the evidence upon which the order of
acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasize the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.

(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions 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.

21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of
this Court pointed out that it would be essential for the High
Court, in an appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the reasons of the
Trial Court in order to be able to reach a contrary conclusion of
guilt of the accused. It was further observed that, in an appeal
against acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of witnesses
and it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this light, the
brusque approach of the High Court in dealing with the appeal,
resulting in the conviction of Appellant Nos. 1 and 2, reversing
the cogent and well-considered judgment of acquittal by the Trial
Court giving them the benefit of doubt, cannot be sustained.”

31. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the

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present accused with the alleged crime and the evidence on
record is not so convincing to prove beyond reasonable doubt
that the accused has committed the alleged crime. Therefore,
the accused cannot be convicted on the evidence on record.

32. On perusal of the impugned judgment and order, it
clearly transpires that the trial Court has not committed any
error of fact and law in appreciating the evidence on record
and in acquitting the accused from the charges levelled
against them. Even on re-appreciation of the evidence, it
clearly transpires that the prosecution has miserably failed to
prove the charge levelled against the accused beyond
reasonable doubt. Therefore, the impugned judgment and
order of the trial Court is sustainable and the present appeal
is liable to be dismissed.

33. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the Trial Court is hereby confirmed. Bail bond
stands cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.

Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SURESHKUMAR MOTIBHAI SOLANKI(HC00208), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 12/08/2026 16:53:04

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