Ashok Kumar Yadav v. State of U.P. Reserved on

them that two persons were sitting at the gate of the first general compartment from the back side of the train and the person who wore the blue coat, was carrying the psychotropic substance. On believing this information, Station House Officer A.K. Upadhyay along with the constables went to the general compartment and he requested the passengers who were present at the platform to become witness of the recovery, but no one was ready and willing to become witness of the recovery. Since no other option was available with the checking staff, they cross-ehecked each other to ensure that no objectionable articles were in their possession. As soon as the checking staff reached the general compartment attached in front of the Guard’s compartment, the informant showed two persons sitting on the seat in front of the window of the compartment and stepped away from there. Since the train was ready to leave the platform, the checking staff immediately rushed into the train and they get off the two persons shown by the informant from the train. Thereafter, the checking staff told the two persons that according to the information received by them, some illegal Charas was in your possession and the checking staff also asked them that whether they wanted to be searched by the police team itself or by any Gazetted Officer or Magistrate, on which the two persons said the Station House Officer, Ajay Kumar Upadhyaya that since you know everything, why you are calling any officer and you can search us. Upon investigation, one person has disclosed his name as Ashok Kumar Yadav, S/o Kanaiyi Yadav, resident of Sauhani, Police Station Sonauli, District Maharajganj and on searching, six polythene packets wrapped in a coarse cloth (Markin) tied with rubber band and twine (sutli) around the stomach were found. On opening, some substance in black colour was found and on being smelled it, some foul smell like Charas was coming from it. Apart from it, from the right pocket of the coat, two Railway Tickets bearing nos.76068 from Nautanwa to Pipiganj and 59354 from Gorakhpur to New Delhi along 3 CRLA No. 386 of 1998 with Rs.85 cash were recovered. The other person identified himself as Ram Dayal, son of Santu Pasi, resident of Sohni, Police Station Sonauli, District Maharajganj. On searching him, six polythene packets wrapped in a coarse cloth (Markin) tied with rubber band and twine (sutli) around the stomach were found. On opening and smelling the packets, they too were informed as Charas. From the right pocket of his pant, two Railway Tickets bearing nos.76069 from Nautanwa to Pipiganj and 59353 from Gorakhpur to New Delhi along with Rs.62 cash were recovered. In order to ascertain the exact weight of the recovered Charas, Constable Haider Ali was sent to bring a weighing machine from the canteen. On being inquired about the recovered Charas, Ashok Kumar Yadav stated that it had been given to him by one Mathura, resident of Vodarwar near by his village for delivering the same at Naraina in Delhi. He further stated that earlier also he delivered such substances, for which he has been given Rs.1,000/- per delivery. He also stated that the other accused-Ram Dayal was carrying the illegal substance given by Mathura for the first time. Constable Haider Ali brought the weighing scale. The psychotropic substance (Charas) recovered from both the persons were weighed separately and it weighed 1.5 Kg. Each. The accused were explained about the offense of possessing illegal Charas, reasons for their arrest and thereafter, they were taken into custody. The recovered psychotropic substance (Charas) of 1.5 Kg. each, along with the markin, rubber band and twine were sealed separately and taken into police custody. The recovered railway tickets and cash were also labelled separately and taken into custody. The recovery memo was prepared at the platform and the same was signed by the checking team present there. The time of arrest of the accused was approximately 1:30 AM.

3. Written Report was lodged by way of FIR at Case Crime No.60 of 1994, under Section 8/21 N.D.P.S. Act. The case was investigated by the Investigating Officer and after completing the investigation, charge sheet was filed under Section 8/20 N.D.P.S. Act against the accused-appellants. Charges were framed in the aforesaid section. The accused pleaded not guilty and requested for trial.

4. The prosecution to prove its case, produced the following four witnesses:- 4 CRLA No. 386 of 1998 P.W.-1 Sub-Inspector Ajay Kumar Upadhyaya P.W.-2 Sub-Inspector R.P. Bajpai P.W.-3 Sub-Inspector Surendra Kumar Singh P.W.-4 Mahesh Narayan, Scientist

5. The accused were confronted under Section 313 Cr.P.C. They pleaded before the court that they were falsely implicated out of enmity. Accused Ram Dayal stated that he was doing tailoring work in Delhi and he was travelling by train and some quarrel took place in the train and the police demanded money, which was refused by him, therefore, he has been falsely implicated in the case.

6. P.W.-1, Sub-Inspector Ajay Kumar Upadhyaya has deposed before the court that on 9/10.02.2024 he, Sub-Inspector R.P. Bajpai along with other Constables were checking at platform no.6 and 7 as they were posted in Government Reserve Police, Barabanki. In the meantime, Shaheed Express reached at Platform No.7 and the informer told them that two persons travelling in the general compartment were carrying psychotropic substance. He asked some persons to become witness of the case, but no one was ready and willing to become witness. Sub-Inspector Ajay Kumar Upadhyaya went in the general compartment along with checking staff and two persons shown by the informer were de-boarded from the train. Sub-Inspector Ajay Kumar Upadhyaya informed the aforesaid two persons that information was received that both were having possession of illegal psychotropic substance (Charas) and they were given option to be searched either before the police team itself or before the Gazetted Officer or before Magistrate. Both the persons told him that the police may do the search procedure. After searching, six polythene packets wrapped in a coarse cloth (Markin) tied with rubber band and twine (sutli) around the stomach were found. On opening, some substance in black colour was found and on being smelled it, some foul smell like Charas was coming from it. Constable Haider Ali was asked to bring weighing scale and upon measurement, the psychotropic substance (Charas) weighing 1.5 Kg. was found from each of the accused. The recovered psychotropic substance (Charas) was sealed and sent for Forensic Science Laboratory for examination. 5 CRLA No. 386 of 1998

7. P.W.-2, Sub-Inspector R.P. Bajpai has reiterated the version of P.W.-1. He also supported the prosecution case and deposed that the search procedure was done in his presence.

8. P.W.-3, Sub-Inspector Surendra Kumar Singh has deposed before the court that he conducted the investigation and proved the Chik F.I.R. (Ext.Ka-2), General Dairy (Ext.Ka-3), Cite Plan (Ext.Ka-4), Recovered psychotropic substance (Ext.Ka-5), laboratory Report (Ext.Ka-6) Charge- sheet (Ext.Ka-7) and he deposed before the court that the entire investigation was done by him and after recording the statements and collecting the evidence, he filed the charge-sheet.

9. P.W.-4 Mahesh Narayan, Scientist has deposed before the court that the recovered psychotropic substance (Ext.Ka-5) sent by the police was examined by him and he proved the laboratory report (Ext.Ka-6) prepared by him.

10. The trial court after examining the witnesses and adducing the evidence on record, convicted the appellants as mentioned above. Hence, the present appeals have been filed.

11. Sri Siddharth Sinha holding brief of Sri Arun Sinha, learned Senior Advocate for the appellants submits that the recovery memo indicates that when the suspicious substance was found from the possession of the appellants, they were given three options for search: (1) that they may be searched before the police party itself; (2) before a Gazetted Officer; and (3) before a Magistrate. He has further submitted that appellants were not apprised that they have got their legal right to be searched before the Magistrate or before the Gazetted Officer. It has been submitted that the Supreme Court in the case of State of Delhi Vs. Ram Avtar alias Rama (2011) 12 SCC 207 has held in an unambiguous terms that merely asking accused whether he wished to be searched before a gazetted officer or a Magistrate without informing him that he enjoyed a right in that behalf would not satisfy the requirement of Section 50 of the Act, 1985.

12. Learned counsel for the appellants has further submitted that there is violation of Section 50 of the Act, 1985 for the reason that the police asked the accused to be searched before the police team itself and this act 6 CRLA No. 386 of 1998 of police has vitiated the entire recovery proceedings and such act is deprecated by the Supreme Court in the case of Ranjan Kumar Chadha Vs. State of Himachal Pradesh, (2023) SCC OnLine SC 1262. He has further submitted that there is also violation of Section 52-A(2) of the Act, 1985, which provides that inventory of the recovery should be made in the presence of a Magistrate and photographs of such drugs and substance should also be taken and as soon as an application is made under sub-section (2) of Section 52 of the Act, 1985, the Magistrate shall as soon as may allow the application. But in the present case, no such procedure was adopted, therefore, the recovery becomes illegal and is highly doubtful.

13. It has also been submitted by the learned counsel for the appellants that there is no independent witness of the recovery though the same was done from a public place i.e. at the Railway station. There is no quantity of substance mentioned in the recovery memo, whereas in the statements of P.Ws.-1 and 2, it is mentioned that 1.5 Kg. of charas was found from the possession of each of the appellant. It is also not mentioned as to when the recovered substance was sent for the laboratory for examination. In sum and substance, the argument is that since there is violation of Sections 50 and 52-A(2)of the Act, 1985 and the search and recovery were not made in accordance with the norms prescribed in the Act, 1985 as well as by the Supreme Court in the aforesaid cases, the conviction of the appellants on the basis of the aforesaid recovery, cannot be sustained and the appeals are liable to be allowed.

14. Sri Rajdeep Singh, learned AGA-1 while rebutting the arguments of learned counsel for the appellants, has submitted that four witnesses have been examined. P.W.1, Sub-Inspector Ajay Kumar Upadhyaya and P.W.- 2, Sub-Inspector R.P. Bajpai are the fact witnesses and they have proved their case. He has further submitted that P.W.-4, Mahesh Narayan, Scientist has also proved the laboratory report mentioning the recovered substance as Charas. He has also submitted that prosecution case is corroborated with laboratory report. He has further submitted that though there is no independent witness, as alleged, but the prosecution has proved its case beyond reasonable doubt, therefore, no interference is called for by this Court and the appeals are liable to be dismissed. 7 CRLA No. 386 of 1998

15. I have heard the learned Senior Advocate for the appellants and the learned AGA and perused the record.

16. Supreme Court in the case of Ram Avtar @ Rama (supra) has held that judgment rendered in the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 has been followed and held in an unambiguous terms that merely asking accused whether he wished to be searched before a gazetted officer or a Magistrate without informing him that he enjoyed a right in that behalf would not satisfy the requirement of Section 50 of the Act, 1985. Paragraph-14 of the aforesaid judgement reads as under: “14. In the case of K. Mohanan v. State of Kerala [(2010) 10 SCC 222] another Bench of this Court while following Baldev Singh’s case (supra) stated in unambiguous terms that merely asking the accused whether he wished to be searched before a Gazetted Officer or a Magistrate, without informing him that he enjoyed a right under law in this behalf, would not satisfy the requirements of Section 50 of the Act.”

17. Supreme Court in the case of Ranjan Kumar Chadha (supra) has held that asking from accused that he may give option to be searched before the police is also bad in law and against the provisions of Section 50 of the Act, 1985. Paragraphs-27 and 28 of the aforesaid judgement are quoted below: “27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told, whether he would like to be searched before a police officer or a Gazetted Officer or Magistrate?

28. This Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, held that it is improper for a police officer to tell the accused that a third alternative is also available i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50. We quote the relevant observations made by this Court as under:- “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 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 8 CRLA No. 386 of 1998

16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before the nearest gazetted officer or the nearest Magistrate or before PW 5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in State of Punjab v. Baldev Singh (1999) 6 SCC 172, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent 2 Surajmal is stated to have signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand did not sign.

17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242 (P&H) and the Bombay High Court in Dharamveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bo0m) meets with our approval.

18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent Surajmal has signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent 2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent 1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.

19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a 9 CRLA No. 386 of 1998 third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.” (Emphasis supplied)

18. From perusal of the record, it also transires that procedure prescribed under Section 52-A(2) of the Act,1985 is also not followed. For the sake of convenience, Section 52-A(2) of the Act,1985 is quoted below: “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 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.”

19. There is no record which indicates that the inventory was made before the Magistrate and the procedure envisaged under Section 52-A(2) of the Act, 1985 was followed, therefore, the impugned judgement and order of conviction passed by the trial court cannot be sustained in view of the law laid down by the Hon’ble Supreme Court in the cases of Ram Avtar @ Rama and Ranjan Kumar Chadha (supra) and it deserves to be set aside 10 CRLA No. 386 of 1998 as the prosecution has failed to prove its case beyond reasonable doubt.

20. Accordingly, both the appeals are allowed and the impugned judgement and orders dated 04.05.1998 passed by the learned Additional Sessions Judge (Ayodhya Prakaran), Lucknow in Sessions Trial Nos.81 of 1994 and 81-A of 1994 are hereby set aside.

21. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender unless wanted in any other case.

22. Let lower court record be sent back forthwith along with a copy of this judgement and order for compliance. December 5, 2025 Rao/- (Brij Raj Singh,J.) CHEBROLU SRINIVASA RAO CHEBROLU SRINIVASA RAO High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

them that two persons were sitting at the gate of the first general compartment from the back side of the train and the person who wore the blue coat, was carrying the psychotropic substance. On believing this information, Station House Officer A.K. Upadhyay along with the constables went to the general compartment and he requested the passengers who were present at the platform to become witness of the recovery, but no one was ready and willing to become witness of the recovery. Since no other option was available with the checking staff, they cross-ehecked each other to ensure that no objectionable articles were in their possession. As soon as the checking staff reached the general compartment attached in front of the Guard’s compartment, the informant showed two persons sitting on the seat in front of the window of the compartment and stepped away from there. Since the train was ready to leave the platform, the checking staff immediately rushed into the train and they get off the two persons shown by the informant from the train. Thereafter, the checking staff told the two persons that according to the information received by them, some illegal Charas was in your possession and the checking staff also asked them that whether they wanted to be searched by the police team itself or by any Gazetted Officer or Magistrate, on which the two persons said the Station House Officer, Ajay Kumar Upadhyaya that since you know everything, why you are calling any officer and you can search us. Upon investigation, one person has disclosed his name as Ashok Kumar Yadav, S/o Kanaiyi Yadav, resident of Sauhani, Police Station Sonauli, District Maharajganj and on searching, six polythene packets wrapped in a coarse cloth (Markin) tied with rubber band and twine (sutli) around the stomach were found. On opening, some substance in black colour was found and on being smelled it, some foul smell like Charas was coming from it. Apart from it, from the right pocket of the coat, two Railway Tickets bearing nos.76068 from Nautanwa to Pipiganj and 59354 from Gorakhpur to New Delhi along 3 CRLA No. 386 of 1998 with Rs.85 cash were recovered. The other person identified himself as Ram Dayal, son of Santu Pasi, resident of Sohni, Police Station Sonauli, District Maharajganj. On searching him, six polythene packets wrapped in a coarse cloth (Markin) tied with rubber band and twine (sutli) around the stomach were found. On opening and smelling the packets, they too were informed as Charas. From the right pocket of his pant, two Railway Tickets bearing nos.76069 from Nautanwa to Pipiganj and 59353 from Gorakhpur to New Delhi along with Rs.62 cash were recovered. In order to ascertain the exact weight of the recovered Charas, Constable Haider Ali was sent to bring a weighing machine from the canteen. On being inquired about the recovered Charas, Ashok Kumar Yadav stated that it had been given to him by one Mathura, resident of Vodarwar near by his village for delivering the same at Naraina in Delhi. He further stated that earlier also he delivered such substances, for which he has been given Rs.1,000/- per delivery. He also stated that the other accused-Ram Dayal was carrying the illegal substance given by Mathura for the first time. Constable Haider Ali brought the weighing scale. The psychotropic substance (Charas) recovered from both the persons were weighed separately and it weighed 1.5 Kg. Each. The accused were explained about the offense of possessing illegal Charas, reasons for their arrest and thereafter, they were taken into custody. The recovered psychotropic substance (Charas) of 1.5 Kg. each, along with the markin, rubber band and twine were sealed separately and taken into police custody. The recovered railway tickets and cash were also labelled separately and taken into custody. The recovery memo was prepared at the platform and the same was signed by the checking team present there. The time of arrest of the accused was approximately 1:30 AM.

3. Written Report was lodged by way of FIR at Case Crime No.60 of 1994, under Section 8/21 N.D.P.S. Act. The case was investigated by the Investigating Officer and after completing the investigation, charge sheet was filed under Section 8/20 N.D.P.S. Act against the accused-appellants. Charges were framed in the aforesaid section. The accused pleaded not guilty and requested for trial.

4. The prosecution to prove its case, produced the following four witnesses:- 4 CRLA No. 386 of 1998 P.W.-1 Sub-Inspector Ajay Kumar Upadhyaya P.W.-2 Sub-Inspector R.P. Bajpai P.W.-3 Sub-Inspector Surendra Kumar Singh P.W.-4 Mahesh Narayan, Scientist

5. The accused were confronted under Section 313 Cr.P.C. They pleaded before the court that they were falsely implicated out of enmity. Accused Ram Dayal stated that he was doing tailoring work in Delhi and he was travelling by train and some quarrel took place in the train and the police demanded money, which was refused by him, therefore, he has been falsely implicated in the case.

6. P.W.-1, Sub-Inspector Ajay Kumar Upadhyaya has deposed before the court that on 9/10.02.2024 he, Sub-Inspector R.P. Bajpai along with other Constables were checking at platform no.6 and 7 as they were posted in Government Reserve Police, Barabanki. In the meantime, Shaheed Express reached at Platform No.7 and the informer told them that two persons travelling in the general compartment were carrying psychotropic substance. He asked some persons to become witness of the case, but no one was ready and willing to become witness. Sub-Inspector Ajay Kumar Upadhyaya went in the general compartment along with checking staff and two persons shown by the informer were de-boarded from the train. Sub-Inspector Ajay Kumar Upadhyaya informed the aforesaid two persons that information was received that both were having possession of illegal psychotropic substance (Charas) and they were given option to be searched either before the police team itself or before the Gazetted Officer or before Magistrate. Both the persons told him that the police may do the search procedure. After searching, six polythene packets wrapped in a coarse cloth (Markin) tied with rubber band and twine (sutli) around the stomach were found. On opening, some substance in black colour was found and on being smelled it, some foul smell like Charas was coming from it. Constable Haider Ali was asked to bring weighing scale and upon measurement, the psychotropic substance (Charas) weighing 1.5 Kg. was found from each of the accused. The recovered psychotropic substance (Charas) was sealed and sent for Forensic Science Laboratory for examination. 5 CRLA No. 386 of 1998

7. P.W.-2, Sub-Inspector R.P. Bajpai has reiterated the version of P.W.-1. He also supported the prosecution case and deposed that the search procedure was done in his presence.

8. P.W.-3, Sub-Inspector Surendra Kumar Singh has deposed before the court that he conducted the investigation and proved the Chik F.I.R. (Ext.Ka-2), General Dairy (Ext.Ka-3), Cite Plan (Ext.Ka-4), Recovered psychotropic substance (Ext.Ka-5), laboratory Report (Ext.Ka-6) Charge- sheet (Ext.Ka-7) and he deposed before the court that the entire investigation was done by him and after recording the statements and collecting the evidence, he filed the charge-sheet.

9. P.W.-4 Mahesh Narayan, Scientist has deposed before the court that the recovered psychotropic substance (Ext.Ka-5) sent by the police was examined by him and he proved the laboratory report (Ext.Ka-6) prepared by him.

10. The trial court after examining the witnesses and adducing the evidence on record, convicted the appellants as mentioned above. Hence, the present appeals have been filed.

11. Sri Siddharth Sinha holding brief of Sri Arun Sinha, learned Senior Advocate for the appellants submits that the recovery memo indicates that when the suspicious substance was found from the possession of the appellants, they were given three options for search: (1) that they may be searched before the police party itself; (2) before a Gazetted Officer; and (3) before a Magistrate. He has further submitted that appellants were not apprised that they have got their legal right to be searched before the Magistrate or before the Gazetted Officer. It has been submitted that the Supreme Court in the case of State of Delhi Vs. Ram Avtar alias Rama (2011) 12 SCC 207 has held in an unambiguous terms that merely asking accused whether he wished to be searched before a gazetted officer or a Magistrate without informing him that he enjoyed a right in that behalf would not satisfy the requirement of Section 50 of the Act, 1985.

12. Learned counsel for the appellants has further submitted that there is violation of Section 50 of the Act, 1985 for the reason that the police asked the accused to be searched before the police team itself and this act 6 CRLA No. 386 of 1998 of police has vitiated the entire recovery proceedings and such act is deprecated by the Supreme Court in the case of Ranjan Kumar Chadha Vs. State of Himachal Pradesh, (2023) SCC OnLine SC 1262. He has further submitted that there is also violation of Section 52-A(2) of the Act, 1985, which provides that inventory of the recovery should be made in the presence of a Magistrate and photographs of such drugs and substance should also be taken and as soon as an application is made under sub-section (2) of Section 52 of the Act, 1985, the Magistrate shall as soon as may allow the application. But in the present case, no such procedure was adopted, therefore, the recovery becomes illegal and is highly doubtful.

13. It has also been submitted by the learned counsel for the appellants that there is no independent witness of the recovery though the same was done from a public place i.e. at the Railway station. There is no quantity of substance mentioned in the recovery memo, whereas in the statements of P.Ws.-1 and 2, it is mentioned that 1.5 Kg. of charas was found from the possession of each of the appellant. It is also not mentioned as to when the recovered substance was sent for the laboratory for examination. In sum and substance, the argument is that since there is violation of Sections 50 and 52-A(2)of the Act, 1985 and the search and recovery were not made in accordance with the norms prescribed in the Act, 1985 as well as by the Supreme Court in the aforesaid cases, the conviction of the appellants on the basis of the aforesaid recovery, cannot be sustained and the appeals are liable to be allowed.

14. Sri Rajdeep Singh, learned AGA-1 while rebutting the arguments of learned counsel for the appellants, has submitted that four witnesses have been examined. P.W.1, Sub-Inspector Ajay Kumar Upadhyaya and P.W.- 2, Sub-Inspector R.P. Bajpai are the fact witnesses and they have proved their case. He has further submitted that P.W.-4, Mahesh Narayan, Scientist has also proved the laboratory report mentioning the recovered substance as Charas. He has also submitted that prosecution case is corroborated with laboratory report. He has further submitted that though there is no independent witness, as alleged, but the prosecution has proved its case beyond reasonable doubt, therefore, no interference is called for by this Court and the appeals are liable to be dismissed. 7 CRLA No. 386 of 1998

15. I have heard the learned Senior Advocate for the appellants and the learned AGA and perused the record.

16. Supreme Court in the case of Ram Avtar @ Rama (supra) has held that judgment rendered in the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 has been followed and held in an unambiguous terms that merely asking accused whether he wished to be searched before a gazetted officer or a Magistrate without informing him that he enjoyed a right in that behalf would not satisfy the requirement of Section 50 of the Act, 1985. Paragraph-14 of the aforesaid judgement reads as under: “14. In the case of K. Mohanan v. State of Kerala [(2010) 10 SCC 222] another Bench of this Court while following Baldev Singh’s case (supra) stated in unambiguous terms that merely asking the accused whether he wished to be searched before a Gazetted Officer or a Magistrate, without informing him that he enjoyed a right under law in this behalf, would not satisfy the requirements of Section 50 of the Act.”

17. Supreme Court in the case of Ranjan Kumar Chadha (supra) has held that asking from accused that he may give option to be searched before the police is also bad in law and against the provisions of Section 50 of the Act, 1985. Paragraphs-27 and 28 of the aforesaid judgement are quoted below: “27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told, whether he would like to be searched before a police officer or a Gazetted Officer or Magistrate?

28. This Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, held that it is improper for a police officer to tell the accused that a third alternative is also available i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50. We quote the relevant observations made by this Court as under:- “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 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 8 CRLA No. 386 of 1998

16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before the nearest gazetted officer or the nearest Magistrate or before PW 5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in State of Punjab v. Baldev Singh (1999) 6 SCC 172, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent 2 Surajmal is stated to have signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand did not sign.

17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) the NDPS Act, he has a right to be searched before the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242 (P&H) and the Bombay High Court in Dharamveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bo0m) meets with our approval.

18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent Surajmal has signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent 2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent 1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.

19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a 9 CRLA No. 386 of 1998 third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.” (Emphasis supplied)

18. From perusal of the record, it also transires that procedure prescribed under Section 52-A(2) of the Act,1985 is also not followed. For the sake of convenience, Section 52-A(2) of the Act,1985 is quoted below: “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 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.”

19. There is no record which indicates that the inventory was made before the Magistrate and the procedure envisaged under Section 52-A(2) of the Act, 1985 was followed, therefore, the impugned judgement and order of conviction passed by the trial court cannot be sustained in view of the law laid down by the Hon’ble Supreme Court in the cases of Ram Avtar @ Rama and Ranjan Kumar Chadha (supra) and it deserves to be set aside 10 CRLA No. 386 of 1998 as the prosecution has failed to prove its case beyond reasonable doubt.

20. Accordingly, both the appeals are allowed and the impugned judgement and orders dated 04.05.1998 passed by the learned Additional Sessions Judge (Ayodhya Prakaran), Lucknow in Sessions Trial Nos.81 of 1994 and 81-A of 1994 are hereby set aside.

21. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender unless wanted in any other case.

22. Let lower court record be sent back forthwith along with a copy of this judgement and order for compliance. December 5, 2025 Rao/- (Brij Raj Singh,J.) CHEBROLU SRINIVASA RAO CHEBROLU SRINIVASA RAO High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench