# Vinai Kumar Sharma v. Union of India

- **Citation:** (2025) 12 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Criminal Appeal No. 435 of 1998
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinai-kumar-sharma-v-union-of-india-52926
- **Pages:** 30

## Text

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360 INDIAN LAW REPORTS ALLAHABAD SERIES
interfered
in
the
progress
of
the
investigation
through
his
repeated
representations, also cannot be granted to
the petitioner. Any directions of that kind
would also amount to interfering in the
investigation of the case.

10. In view of the above discussion,
we do not find any reason to interfere in the
matter and the petition thus lacks merit and
is liable to be dismissed.

11. Accordingly, the instant petition is
hereby dismissed.
----------
(2025) 12 ILRA 360
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.12.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Appeal No. 435 of 1998

Vinai Kumar Sharma ...Appellant
Versus
Union of India ...Respondents

Issue for Consideration
Matter pertains to the legality of conviction and
sentence under Ss. 8/21 of the Narcotic Drugs
and Psychotropic Substances Act, 1985, and
specifically whether there was due compliance
of mandatory provisions of S. 50 and S. 52-A of
the NDPS Act in the facts of recovery of heroin
allegedly effected from the accused-appellant.

Headnotes
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Ss. 8, 21, 50 and
52A - Scope and applicability - Recovery of
heroin from the person of the accused -
Non-compliance
with
mandatory
safeguards - Scope of S. 50 - Appellant
was convicted for possession of 120
grams of heroin recovered from his pant
pocket during a raid at a hotel room -
Personal search - Mandatory requirement
of informing accused of his right under S.
50 NDPS Act - Search conducted by
Gazetted Officer who was part of raiding
party - Validity - Recovery of contraband
from
pocket
of
accused
-
Whether
voluntary handing over - Applicability of S.
50 - Sampling and inventory - Whether
non-compliance of S. 52-A vitiates trial
when primary physical evidence produced
- Evidentiary value of chemical examiner's
report under S. 293 CrPC - Burden of proof
- S. 106, Indian Evidence Act - Recovery
from hotel room.
Held: S. 50 of NDPS Act is a mandatory
provision, conferring a valuable right on the
accused
and
imposing
a
corresponding
obligation on the empowered officer to inform
the accused of his right to be searched before a
Gazetted Officer or a Magistrate independent of
the raiding party - Merely informing the accused
that a Gazetted Officer is present as part of the
raiding party does not satisfy the mandate of S.
50, as the accused must be made aware of his
right to be searched before an independent
Gazetted Officer or Magistrate - From the
testimony of PW-2 and PW-3, it is evident that
personal search of the accused-appellant did
take place, resulting in recovery of contraband
from the right pocket of his pant - The evidence
indicates that the contraband was recovered
after personal search, and not merely by
voluntary surrender so as to exclude the
applicability of S. 50 - Where primary physical
evidence of recovered contraband is produced
before the Court and proved during trial, noncompliance of S. 52-A relating to inventory and
certification by Magistrate does not vitiate the
trial - The report (Ex. Ka-10) is admissible under
S. 293 CrPC, and the defence having not
summoned the author, cannot dispute its
evidentiary value at appellate stage - Appeal
allowed and the impugned judgment passed by
the trial Court set-aside. (Paras 46 - 90) (E-7)

Case Law Cited
Vijaysinh Chandubha Jadeja v. State of Gujarat,
(2011) 1 SCC 609; Mainul Haque v. Union of
India, 2014 SCC OnLine Cal 18359; Ranjan
Kumar Chadha v. State of H.P., 2023 SCC
OnLine SC 1262; Dharambir v. State, 2018
SCC OnLine Del 12305; Yusuf v. State,
(2024) 14 SCC 217 : 2023 SCC OnLine SC
1328; Mangilal v. State of M.P., (2023) 19
12 All. Vinai Kumar Sharma Vs. Union of India
361
SCC 364 : 2023 SCC OnLine SC 862; Bharat
Aambale v. State of Chhattisgarh, (2025) 8
SCC 452.

List of Acts
Narcotic Drugs and Psychotropic Substances
Act, 1985; Code of Criminal Procedure, 1973;
Indian Evidence Act, 1872.

List of Keywords
Heroin; Personal search; Gazetted Officer; S. 50
NDPS Act; S. 52-A NDPS Act; Recovery; Seizure
memo; Chemical examination report; Voluntary
handing over.

Case Arising From
APPELLATE JURISDICTION: Criminal Appeal
under S. 374(2) Cr.P.C. arising out of judgment
and order dated 28.05.1998 passed by IXth
Additional District and Sessions Judge, Lucknow
in Criminal Case No. 85 of 1995, Police Station -
Narcotics Department, District - Lucknow.

Appearances for Parties
Advs. for the Appellant:
Shri Kunwar Sushant Prakash
Advs. for the Respondents:
Sri S. M. Singh Royekwar

(Delivered by Hon'ble Brij Raj Singh, J.)

1. The instant appeal under Section
374(2) Cr.P.C. has been filed challenging
the judgment and order dated 28.05.1998
passed by IXth Additional District and
Sessions Judge, Lucknow (in short "trial
Court") in Criminal Case No. 85 of
1995, under Sections 8/21 of Narcotic
Drugs and Psychotropic Substances Act,
1985 (in short "NDPS Act") Police
Station - Narcotics Department, District
- Lucknow whereby the appellant has
been convicted and sentenced under
Sections 8/21 of NDPS Act for a period
of ten years rigorous imprisonment
along with the fine of Rs. 1,00,000/- and
in default of payment of fine, to undergo
additional
five
years'
rigorous
imprisonment.

2.
Heard
Shri
Kunwar
Sushant
Prakash, learned counsel for the accusedappellant and Sri S. M. Singh Royekwar,
learned
Counsel
for
the
Union
of
India/Central Bureau of Narcotics.

3. The case of prosecution, as per
material available on record, is that on
27.02.1995, at about 10:00 AM, a secret
information was received that one person
namely accused-appellant Vinai Kumar
Sharma is staying in Room No. 25, Hotel
Manisha, Ganesh Ganj, Lucknow, and that
he has come from Delhi with the intention
to purchase heroin. It was informed that
Mohd. Islam @ Farooq Son of Mohd.
Shami @ Haroon, resident of Tikra Patti,
P.S. Jaidpur, District Barabanki, would
bring heroin from his village and deliver
the same to accused-appellant Vinai Kumar
Sharma in Room No. 25 of Hotel Manisha,
and that the monetary transaction would
also take place in the said hotel. Believing
the information, Rajdhari Singh, SubInspector,
Central
Narcotics
Bureau,
Lucknow Camp, Zaidpur (Barabanki), after
consulting
his
seniors
at
Lucknow,
constituted a preventive team led by S.C.
Sarkar,
Superintendent
(Preventive),
Barabanki
Zaidpur
Camp.
The
team
reached Hotel Manisha at about 12:00 noon
and inspected the register at the Hotel
Counter. They proceeded to Room No. 25
along with two public witnesses. The Room
was found locked from inside. Upon
knocking, one person opened the door who,
on inquiry, disclosed his name as Vinai
Kumar Sharma, son of Ram Charan Lal,
resident of Room No. 88, Govind Park,
Chander Nagar, P.S. Krishna Nagar, Delhi.
On being further asked whether anybody
else was present in the Room, he stated that
another person known to him was also
present, whose name is Mohammad Islam,
resident of Village Tikra Patti, District
362 INDIAN LAW REPORTS ALLAHABAD SERIES
Barabanki. Upon being called, the second
person came to the door and disclosed his
name as Mohd. Islam @ Farooq, son of
Mohd. Shami @ Haroon, resident of
Village Tikra Patti, P.S. Zaidpur, District
Barabanki. Since the names and particulars
matched with those given in the secret
information,
both
the
persons
were
informed about the purpose of the visit and
were asked whether they wished their
personal search and search of the premises
to be conducted before a Magistrate or a
Gazetted Officer. Both accused-appellant
Vinai Kumar Sharma and Mohd. Islam
declined and consented to be searched by
the preventive team itself. Thereafter, in the
presence of witnesses, Rajdhari Singh, SubInspector, and Faiyaz Ahmad along with
witnesses,
entered
the
Room
and
commenced search. During search, a red
coloured hand bag was found under the
pillow on the bed. On being asked,
accused-appellant Vinai Kumar Sharma
stated that the bag contained Rs. 23,000/-,
which he admitted to be his own money,
brought from his home, and that he
intended to purchase heroin from Mohd.
Islam @ Farooq, present in the Room. He
further stated that one packet of heroin had
already been given to him, while another
packet remained with Mohd. Islam, and
that he was about to check the purity of the
heroin by consuming it, after which he
intended to decide the price, but before
that, the team arrived. On being asked to
produce the heroin in his possession, he
took out one plastic-wrapped packet from
the right pocket of his blue jeans, which
was opened by Constable Faiyaz Ahmad in
the presence of witnesses, and found to
contain
brown-coloured,
semi-moist
substance, which was seized under Sections
8, 21 of NDPS Act. Thereafter, Mohd.
Islam was asked whether he also possessed
any heroin, to which he admitted, and
produced one plastic-wrapped packet from
the left pocket of his brownish-khaki
trousers, which, when was opened by
Constable Faiyaz Ahmad in presence of
witnesses, was found to contain browncoloured, semi-moist substance, which was
also seized under Sections 8, 21 of NDPS
Act. Thereafter, both recovered packets
were tested with the field testing kit, and
the substance was found to be heroin. On
weighing the substance on the weighing
scale available at the spot, the heroin
recovered from accused-appellant Vinai
Kumar Sharma weighed 120 grams, and the
heroin
recovered
from
Mohd.
Islam
weighed 80 grams. From each packet, two
samples of 5 grams each were drawn for
chemical examination and were separately
sealed in tin containers. The recovered
heroin from Vinai Kumar Sharma was
marked "A", and the two sample containers
were marked "A1" and "A2". Similarly, the
recovered heroin from Mohd. Islam @
Farooq was marked "B", and the two
sample containers were marked "B1" and
"B2". After apprising both accused persons
of the offence under Sections 8, 21 of
NDPS
Act.
Accused-appellant
Vinai
Kumar Sharma and Mohd. Islam were
arrested along with the seized heroin. A
recovery-cum-seizure memo was prepared
on the spot, read over to all present, and
upon admitting it to be correct, it was
signed by the witnesses, accused persons
and members of the team, with their
signatures/thumb impressions.

4. Accused-appellant Vinai Kumar
Sharma was summoned by the trial Court
and the trial Court framed charge against
the appellant under Sections 8C, 21 of the
NDPS Act and the said charge was read
over and explained to the accusedappellant, who thereafter, denied the
possession of 120 gms heroin and claimed
12 All. Vinai Kumar Sharma Vs. Union of India
363
trial. Upon denial, the appellant was put to
trial.

5. To prove it case, the prosecution
examined
Seizing
Officer
Rajdhari
Singh/PW-1,
Superintendent
S.C.
Sarkar/PW-2,
Independent
Witness
Manager
Harishankar
Agnihotri/PW-3,
Investigating Officer P. K. Shah/PW-4,
Malkhana Incharge G.K. Mukherji/PW-5
and
Constable
Subhash
Chandra
Dubey/PW-6.

6. In response to the question(s) put to
the accused-appellant in terms of Section
313 Cr.P.C., the accused-appellant denied
the case of prosecution. He also denied the
incident and deposed before the Court that
he has been falsely implicated and he also
denied the factum of recovery. He accepted
that at 08 O' clock in the morning, he was
arrested at Hotel Manisha and recovery of
Rs.30,765/- was made from him. He further
made allegation against the employees of
Narcotics Department that they wanted to
grab the said amount, which was found in
his possession. The accused-appellant made
protest that is why he has been falsely
implicated.

7. Thereafter, the trial Court after due
consideration of the submissions advanced
by the learned counsel for the parties and
evidence available on record passed the
judgment of conviction and sentenced,
detailed in para 1 of this judgment, which
has been assailed in the present appeal.

8. Seizing Officer Rajdhari Singh/PW1, in examination-in-chief, has stated that
on 27.02.1995, he was posted as SubInspector, Zaidpur, District Barabanki. On
that day he received a secret information
that a person named Vinai Kumar, who had
come from Delhi, was staying at Manisha
Hotel, Ganesh Ganj, Lucknow, and that he
would purchase heroin from Mohd. Islam
@ Farukh, resident of Village Tikra Patti,
District Barabanki, and return to Delhi. He
recorded this secret information in D.R.I.
Form No. 1 in his own handwriting. The
informer was brought along with Constable
Faiyyaz Ahmad. This information is
written in his own handwriting and bears
his signatures. He also obtained the
signatures of Faiyyaz Ahmad on it. This
information
is
Exhibit
Ka-1.
After
receiving the information, he and constable
Faiyyaz Ahmad came to Lucknow, and
after discussing with their officers, an
immediate team was constituted consisting
of S.C. Sarkar, Superintendent; Ashok
Kumar,
Inspector;
Faiyyaz
Ahmad,
Constable; Om Prakash Gupta, Constable;
Kamlakar Pandey, Constable; Ram Kripal,
Constable,
and
they
proceeded
on
government vehicle No. UP-32-0042 with
driver K.K. Seth. They reached Manisha
Hotel, checked the entry of Room No. 25
as pointed out by the informer at the
counter, and along with hotel employees
Harishankar Agnihotri and Sudhir Kumar
Dixit reached Room No. 25 and knocked
on the door. Accused-appellant Vinai
Kumar opened the door. PW-1 asked him
his name and address. He disclosed his
name as Vinai Kumar S/o Ram Charan Lal
R/o Govind Park, P.S. Krishna Nagar,
Delhi. PW-1 then asked whether any other
person was in the Room. He said that there
was another person who had come to meet
him. He was called and PW-1 asked his
name and address. He disclosed his name
as Mohd. Islam @ Farukh, resident of
Village Tikra Patti, District Barabanki.
After that, PW-1 told them that whether
they wanted to be searched in the presence
of a Magistrate or Gazetted Officer, but
both consented to be searched by me and
the team. Thereafter, PW-1 and Constable
364 INDIAN LAW REPORTS ALLAHABAD SERIES
Faiyyaz Ahmad, both witnesses, and our
officers exchanged personal searches, and
then entered the Room. Upon entering the
Room and during search, a red hand bag
was found below the pillow on the bed,
which Vinai Kumar claimed as his own and
stated that Rs. 23,000/- were kept in it and
that the money belonged to him. The
money was counted in his presence and
verified. He stated that the money was
brought to purchase heroin and take it to
Delhi. When asked whether the heroin had
arrived, he said that the other person,
Mohd. Islam, had brought two packets of
heroin, out of which one packet had been
given to him, which he was testing for
purity, and that the other packet was with
Islam, and during that time they arrived.
Thereafter, Vinai Kumar took out a packet
of heroin from the right pocket of his jeans.
It was opened and tested with the testing
kit, and it was confirmed to be heroin. Then
Mohd. Islam took out another packet of
heroin from the left pocket of his pants,
which was also opened and tested, and
confirmed to be heroin. Both packets were
weighed one by one on the scale. The
heroin recovered from Vinai Kumar
weighed 120 grams, and the heroin recovered
from Islam @ Farukh weighed 80 grams.
From both packets, two samples of 5 grams
each were taken for chemical examination.
The samples and the remaining material were
sealed separately. A seizure memo (fard) was
prepared at the spot in his handwriting and
bearing his signature. The signatures of the
witnesses were obtained, and accused Vinai
Kumar signed and accused Mohd. Islam
affixed his thumb impression. The seizure
memo was also signed by his officer S.C.
Sarkar, and one copy each was given to both
accused, and their signatures and thumb
impressions were obtained. The seizure memo
is Exhibit Ka-2, written and signed by him,
and is on record.

9. Superintendent S.C. Sarkar/PW-2
stated on oath that he is a Gazetted Officer.
On
27.02.1995,
he
was
posted
as
Superintendent, Central Narcotics Bureau,
Jaidpur, Barabanki. On that day, he was
present in Lucknow. On the same day, at
about 11:00 a.m., S.I. Rajdhari Singh and
Constable Faiyyaz Ahmad came to meet
him in the office. They presented before
him the written information DRI-1, Exhibit
Ka-1, and apprised him of the information.
He read Exhibit Ka-1 and signed and
consulted
the
Deputy
Narcotics
Commissioner and formed a team to
apprehend the accused persons. The team
consisted of S.C. Sarkar, S.I. Rajdhari
Singh,
Constable
Faiyyaz
Ahmad,
Kamaldhar Pandey, Ram Kripal, and
Ashok Kumar, Inspector. They took the
government jeep UP-32-0043 with driver
K.K. Seth and proceeded to Manisha Hotel,
Ganesh Ganj, Lucknow. They went to the
hotel counter and checked the hotel register
for Room No. 25 as informed by the
informer. Taking the two hotel employees,
Harishankar Agnihotri and Sudhir Kumar
Dixit, they went to Room No. 25. They
knocked on the door and got it opened. The
accused-appellant Vinai Kumar Sharma
opened the door. They asked his name and
address. He disclosed his name as Vinai
Kumar Sharma, son of Ramcharan Lal,
resident of Govind Park, P.S. Krishna
Nagar, Delhi. They also asked him whether
anyone else was inside the Room. He said
there was another person named Islam. He
was also called and was asked his
particulars. He stated his name was Islam
@ Farooq, son of Haroon, resident of
Village Tikra, District Barabanki. He
introduced himself and told them that he is
a Gazetted Officer and that he had
information that they were in possession of
heroin. He also asked them whether they
wanted to be searched in the presence of
12 All. Vinai Kumar Sharma Vs. Union of India
365
Magistrate or any other Gazetted Officer.
They said that he could conduct the search.
The officers and witnesses searched each
other and then entered the Room. During
the search, a red hand-bag was found under
the pillow on the bed, which Vinai Kumar
claimed to be his. It contained 23,000
rupees, which he stated belonged to him.
On counting, the amount was confirmed.
Upon further questioning, he stated that the
money had been brought to purchase
heroin. He took out a packet from his
pocket and handed it over, saying that it
contained heroin. He also stated that the
second packet was with Islam. Islam took
out a packet from the left pocket of his
trousers and gave it, stating that it
contained heroin. Both packets were tested
with the testing kit and both were
confirmed to contain heroin. The packets
were weighed separately. From Vinai
Kumar's packet, 120 grams of heroin was
found and from Islam's packet, 80 grams of
heroin was found. Two samples of 5 grams
each were taken from each of the two
packets.
All
four
samples
and
the
remaining heroin in both packets were
sealed separately. The packets and samples
were signed and thumb-marked by the
officers, witnesses and the accused persons.
The seizure memo, Exhibit Ka-2, was
written by S.I. R.D. Singh. It bears the
signatures and thumb impressions of all the
officers, witnesses and the accused persons.
One copy each was given to both accused
persons, on which their signatures and
thumb impressions were taken. Exhibit Ka2 is the same memo on which his
signatures also appear. The statements of
both accused persons were recorded by
Shri Rajdhari Singh. Whatever the accused
stated was written down, read over to them,
and their signatures and thumb impressions
were taken. Both accused were arrested.
Until the samples and the heroin remained
with them, no one was allowed to touch or
tamper . On 01.03.1995, two samples-one
of accused Vinai Kumar and one of
accused Islam-were sent for examination to
the
Chemical
Examiner,
Government
Opium
Factory,
Neemuch,
Madhya
Pradesh, through the letter, Exhibit Ka-9,
which was typed under his direction; it is
on record and bears his signature. The
Chemical Examiner's Report is Exhibit
Ka'10, which is also on record.

10. Independent Witness Manager
Harishankar
Agnihotri/PW-3
in
examination-in-chief
stated
that
on
27.02.1995, he was working as the
Manager of Manisha Hotel. The accusedappellant Vinai Kumar was staying in
Room No. 25 of his Hotel. On the same
day, at about 12:00 noon, officers and staff
of the Narcotics Department came to the
hotel and inquired about Vinai Kumar. As
per the register, they were informed about
Room No. 25. He told them that Vinai was
staying there. He, along with Sudhir Dixit,
accompanied them to the Room. The door
was knocked by them and Vinai Kumar
opened the door. The officers asked his
name. There was another person in the
Room. They were told that their search
would
be
conducted. They
mutually
searched each other and Vinai Kumar was
searched. Vinai Kumar took out a packet
from the pocket of his pants. It contained
brownish substance. Some money was also
recovered from the purse. He does not
remember the exact amount, whether the
amount was Rs. 23,000/- or Rs. 25,000/-.
The material recovered from Vinai Kumar
was weighed, and it might have been 120
grams, from which two samples were
taken. The recovered material and samples
were sealed. A partially typed carbon copy
of the seizure memo was prepared on
which his signatures exist. A written
366 INDIAN LAW REPORTS ALLAHABAD SERIES
statement was also taken, what was spoken
was written, and it was read over to the
person. Exhibit K-6 was recorded, on
which my signatures also appear. His
signatures were also obtained on the seized
material and samples. The document
Exhibit K-12 contains his handwriting and
signatures.

11. Malkhana Incharge P.K. Shah/PW4 identified signature of R.A. Rai on order
dated 19.05.1995 (Ex.Ka.12) and deposed
that R.A. Rai was no more. He also proved
site
plan
(Ex.Ka.12)
and
complaint
(Ex.Ka.15).

12. Constable G.K. Mukherji/PW-5,
in-charge of Malkhana, was also examined
and he deposed that the four samples were
sent by Rajdhari Singh/PW-1 in Malkhana
and he proved photocopy of Malkhana
Register (Ex.Ka.16).

13. Subhash Chandra Dubey/PW-6
proved photocopy of receipt of sample
(Ex.Ka.17).

14. Shri Kunwar Sushant Prakash,
learned counsel for the appellant, on the
basis of written submissions, has submitted
that the matter pertains to year 1995. Almost
30 years have passed and present age of the
accused-appellant is about 72 years. It has
been submitted that there is no compliance of
Section 50 as well as Section 52A of NDPS
Act. In the statement of Rajdhari Singh/PW1, it is mentioned that after searching the
room of the Hotel, the accused-appellant was
given two options whether he wanted to be
searched before Gazetted Officer or before
the Police Party itself. The accused-appellant
had opted to be searched before Police Party.

15. Learned counsel has further
pointed out that at page 27 of the paperbook, Rajdhari Singh/PW-1 has stated that
in the present case he did not obtain
warrant from the Magistrate for the reason
that a Gazetted Officer was present with
him.
He
further
deposed
in
crossexamination that the Gazetted Officers
were always present with him. Therefore,
there was no requirement to take any
Magistrate. He further deposed before the
Court that the accused-appellant was
informed that Gazetted Officer was present
with Raiding Party. When he was asked for
search
before
Gazetted
Officer
or
Magistrate, then the accused-appellant
offered for search before Raiding Party. He
further deposed that he did not write the
fact that officer was present with him.

16. It has been further pointed out by
learned counsel that from the statement of
PW-1, it is admitted by prosecution witness
that no information/application was given
to the Magistrate, as per Section 52A of
NDPS Act. The gazetted officer was
present along with raiding party.

17. It has been further submitted that
accused person was informed that Gazetted
Officer is accompanying the Raiding Party,
therefore, without taking separate consent
from accused-appellant and without taking
his consent in writing the search was
conducted, which is a violation of Section
50 of the NDPS Act,

18. It has been further submitted by
learned counsel that although it cannot be
said by any stretch of imagination that
prosecution complied with Section 50 of
NDPS Act, but if for the sake of argument,
if
it's
hypothetically
presumed
that
prosecution did complied with the mandate
of Section 50 of NDPS Act, even so, oral
consent given by the accused-appellant was
given in the impression that they were
12 All. Vinai Kumar Sharma Vs. Union of India
367
being searched in the presence of Gazetted
Officer and actually, he was misled to give
his consent before Gazetted Officer, who
was part of the Raiding Party, cannot, as
per the law, search the accused person.

19. Learned counsel has further
invited attention of the Court towards page38 of the paper book, the statement of S.C.
Sarkar/PW-2, wherein he has stated that he
is a Gazetted Officer. He deposed before
the Court that he introduced himself as
Gazetted
Officer
and
told
accusedappellant that he was informed that
accused-appellant was in possession of the
heroin. He asked him whether he wished to
be searched either before the Magistrate or
before the Gazetted Officer, on which he
had said that the Raiding Party could search
him.

20. Learned counsel has submitted that
aforesaid deposition of PW-2 indicates that
he was present as a part of the Raiding
Team. It has been submitted that the
accused was not told that it is his right to be
searched in presence of Magistrate or
Gazetted Officer other than the one who is
leading the Raiding Party and as such, this
violates the mandatory provisions of
Section 50 of the NDPS Act, which
requires that accused should be informed
about his right in clear terms that he has
right to be searched in presence of a
Gazetted Officer other than one who is
accompanying the Raiding Party.

21. Learned counsel has placed
reliance on the judgment of Hon'ble
Supreme Court passed in the case of
Vijaysinh Chandubha Jadeja v. State of
Gujarat, (2011) 1 SCC 609 and judgment
of Calcutta High Court passed in the case
of Mainul Haque v. Union of India, 2014
SCC OnLine Cal 18359.

22. Learned counsel has further
pointed out that at page 46 of the paperbook, PW-2, who admitted that a personal
search of the accused did took place and
the same resulted in the recovery of
contraband from the pocket of the accused.
In his words "फ़ैयाज़ ने तलाश ली थी पहले
उसके ब़ैग से 23000 रुपये बरामद हुआ और
उसने बताया कक हेरोइन खरीदने के ललए लाया
हू। हेरोइन की बारामदगी विनय कुमार की पैंट
की दहहनी जेब से हुई बारामदशुदा हेरोइन का
िजन फ़ैयाज के ककया था 120 ग्राम विनय
कुमार से तथा 80 ग्राम इस्लाम से हुई बारामद
हुयी".

23.
Learned
counsel
has
futher
submitted that aforesaid admission of PW-2
indicates that the search of the accusedappellant was done prior to recovery. PW3, Hari Shankar Agnihotri, the Manager of
Manisha hotel, had nowhere stated about
compliance of Sections 50 and 52A of the
NDPS Act. However, at page 48 of the
paper-book, he has stated in the crossexamination that the personal search of the
accused-appellant had taken place.

24. It has further been submitted that
after
taking
into
consideration
the
statements of of PW-2 and PW-3, it is
apparent that personal search of the
accused-appellant had taken place. Thus,
there is violation of Section 50 of the
NDPS Act.

25. By pointing page 86 of the paper
book, learned counsel has submitted that
recovered contraband produced in the
Court was different from the one which
was allegedly recovered from the accused
and
the
aforesaid
discrepancy
was
368 INDIAN LAW REPORTS ALLAHABAD SERIES
unrebutted
by
prosecution.
Had
the
prosecution complied with the provisions
of Section 52A of the NDPS Act, such
discrepancies would have been avoided.

26. Learned counsel has relied on the
judgment of Honorable Supreme Court,
passed in the case of Ranjan Kumar
Chadha v. State of H.P., 2023 SCC
OnLine SC 1262. Reliance has also been
placed on paragraph 44 the judgment of
Delhi High Court in Dharambir v. State,
2018 SCC OnLine Del 12305.

27. To support his argument with
regard to Section 52A of the NDPS Act, he
has relied on the judgments of Hon'ble
Supreme Court passed in Yusuf v. State,
(2024) 14 SCC 217 : 2023 SCC OnLine
SC 1328 and Mangilal v. State of M.P.,
(2023) 19 SCC 364 : 2023 SCC OnLine
SC 862.

28. Per Contra, Sri S.M. Singh
Royekwar, learned Counsel for the Union
of India/Central Bureau of Narcotics, on
the basis of written submissions, has
submitted that in the present case, the
contraband was handed over by the
accused-appellant himself from the right
pocket of his pant to the Raiding Team
during
general
questioning
by
the
members of the Raiding Team at the time
of raid.

29. It has been further submitted that
the contraband was not recovered as a
result of body search of the accusedappellant, rather he himself has handed
over the contraband substance to the
Raiding Team. It was also not recovered
from any other container which was in the
possession of the accused-appellant. Hence,
rigors of Section of 50 of NDPS Act would
not applicable in the present case.

30. It has been further submitted that
from reading of the various judgments of
the Hon'ble Supreme Court, though they
deal with different facts and situations
regarding recovery unlike the case in hand.
The only safe and sure proposition is
deduced that in case of voluntary handing
over or surrendering of the contraband by
the accused-appellant to the prosecution
team, Section 50 of NDPS Act would not
get attracted.

31. He has relied upon paragraphs 110
to 121 passed in Ranjan Kumar Chadha
(Supra).

32. It has been further submitted that
factum of recovery as a result of appellant's
own voluntary act of surrendering/handing
over of the contraband to the Raiding Team
has been proved by the prosecution
witnesses.
Statements
of
PW-1
(examination-in-chief at page nos. 17 of the
paper book), PW-2 (examination-in-chief at
page no. 40 of the paper book) and PW-3
(examination-in-chief at page no. 48 of the
paper book).

33. It has been further submitted that
during cross-examination also, no material
contradiction in the testimony of the said
prosecution witnesses could be elicited by
the defence during trial. Minor variation in
the narration of the facts in the oral
testimonies of a few prosecution witnesses
namely PW-2 (cross-examination at page
no. 46 of the paper book) makes no serious
dent to the prosecution story. PW-1 and
PW-3 remained thoroughly intact during
their cross-examination also.

34. It has been further submitted that
no suggestion has been made to the said
prosecution witnesses by the Defence,
either in this behalf.
12 All. Vinai Kumar Sharma Vs. Union of India
369

35. It has been further submitted that
even if it is assumed that the contraband
was not voluntarily handed over by the
accused-appellant, even then since the
recovery has been made from closed
confines of the Hotel Room in which the
accused-appellant was present as per his
own statement recorded under Section 313
CrPC and as per Section 106 of the Indian
Evidence Act, the onus lies upon the
accused-appellant to explain the recovery
from his possession, which has not been
discharged by him in the case in hand.

36. It has been further submitted that
Physical evidence of recovered contraband
(Ex.1) has been proved by the prosecution
witnesses PW-1 & PW-2 by exhibiting the
same
during
trial.
During
crossexamination, neither any question was put
nor any suggestion was made by the
defence to such prosecution witnesses as
regards change of colour of the contraband.
At no place in the testimony of the said
witnesses, as available in the paper book,
any mention has been made in this behalf.

37. The chemical examination report
(Ext.Ka.10) is admissible in evidence under
Section 293 CrPC, which has been proved
by PW-1 (examination-in-chief at page
no.22 of the paper book) and PW-2
(examination-in-chief at page no.42 of the
paper book) also. As per chemical
examination
report,
the
recovered
contraband was heroin. During the trial
proceedings, the defence did not seek to
summon the author of the chemical
examination report and question him as
regards the change of colour of the
contraband.

38. The accused-appellant has also not
questioned the chain of safe custody of the
contraband in any manner. Complete chain
of safe custody of the contraband right
from the stage of seizure till production in
the court during trial has been duly
established by the prosecution witnesses
i.e.
PW-1
in
his
oral
testimony
(examination-in-chief at page no. 21 of the
paper book) and PW-5 (examination-inchief at page no. 54 of the paper book).

39. It has been further submitted that
the provisions of Section 52-A NDPS Act,
in the manner as projected by the counsel
for the accused-appellant, would not get
attracted while drawing samples at the time
of seizure of the contraband. The sampling
for the purposes of chemical examination
of the contraband was done in accordance
with the procedure as prescribed in
Standing Instructions No.1/88, as prevalent
at the time of recovery.

40. The requirement, as prescribed in
Section 52-A(2) of NDPS Act, with regard
to drawing of samples or making inventory
of
recovered
contraband
or
taking
photographs of the contraband and issuance
of certificate to the same effect by the
Magistrate concerned will get attracted
only for the purposes of disposal of the
contraband. After the physical evidence is
disposed of and not produced as primary
physical evidence, as per Section 52-A(4).
The said compliance as provided in Section
52-A (2) may serve as primary evidence.

41. He has relied on the paragraphs 33
and 38 to 43 of judgment of Hon'ble
Supreme Court passed in the case of
Bharat
Aambale
Vs
State
of
Chhattisgarh: 2025 SCC OnLine SC 110
: (2025) 8 SCC 452.

42. He has further submitted that in
the present case, the primary evidence
recovered contraband (Heroin) in physical
370 INDIAN LAW REPORTS ALLAHABAD SERIES
form was produced before the Court during
trial and proved by the prosecution
witnesses namely PW-1 (examination-inchief at page no. 36 of the paper book) and
PW-2 (examination-in-chief at page no. 43
of the paper book). Hence, there is no
occasion for compliance of Section 52-A of
NDPS Act.

43. He has lastly submitted that the
judgment and order under appeal requires
no interference by this Court and the appeal
preferred by the accused-appellant deserves
to be dismissed.

44. I have heard learned counsel for
the contesting parties and have perused the
records.

45. It would be apt to discuss first the
judgments relied upon by learned counsel
for the parties.

46. In Paragraph 66 of the judgment
passed in the case of Ranjan Kumar
Chadha (Supra), the Hon'ble Supreme
Court has delineated ten requirements
envisaged by Section 50 of NDPS Act.
Hon'ble Supreme Court has observed that
Section 50 is a mandatory provision, which
is a right of the person as well as obligation
for the prosecution. Where, the person to be
searched declines to exercise this right, the
police officer shall be free to proceed with
the search. However, if the suspect declines
to exercise his right of being searched
before a Gazetted Officer or Magistrate.
While informing the right, only two options
of either being searched in presence of a
Gazetted Officer or Magistrate must be
given, who also must be independent and in
no way connected to the Raiding Party.

47. Relevant extract of the report is as
under :-

"66.
From
the
aforesaid
discussion, the requirements envisaged by
Section 50 can be summarised as follows:-

(i) Section 50 provides both a
right as well as an obligation. The person
about to be searched has the right to have
his search conducted in the presence of a
Gazetted Officer or Magistrate if he so
desires, and it is the obligation of the police
officer to inform such person of this right
before proceeding to search the person of
the suspect.

(ii) Where, the person to be
searched declines to exercise this right, the
police officer shall be free to proceed with
the search. However, if the suspect declines
to exercise his right of being searched
before a Gazetted Officer or Magistrate,
the empowered officer should take it in
writing from the suspect that he would not
like to exercise his right of being searched
before a Gazetted Officer or Magistrate
and he may be searched by the empowered
officer.

(iii) Before conducting a search,
it must be communicated in clear terms
though it need not be in writing and is
permissible to convey orally, that the
suspect has a right of being searched by a
Gazetted Officer or Magistrate.

(iv) While informing the right,
only two options of either being searched in
presence
of
a
Gazetted
Officer
or
Magistrate must be given, who also must be
independent and in no way connected to the
raiding party.

(v) In case of multiple persons to
be searched, each of them has to be
individually communicated of their right,
and each must exercise or waive the same
in their own capacity. Any joint or common
communication of this right would be in
violation of Section 50.

(vi)
Where
the
right
under
Section 50 has been exercised, it is the
12 All. Vinai Kumar Sharma Vs. Union of India
371
choice of the police officer to decide
whether to take the suspect before a
Gazetted Officer or Magistrate but an
endeavour should be made to take him
before the nearest Magistrate.

(vii) Section 50 is applicable only
in case of search of person of the suspect
under the provisions of the NDPS Act, and
would have no application where a search
was conducted under any other statute in
respect of any offence.

(viii) Where during a search
under any statute other than the NDPS Act,
a contraband under the NDPS Act also
happens to be recovered, the provisions
relating to the NDPS Act shall forthwith
start applying, although in such a situation
Section 50 may not be required to be
complied for the reason that search had
already been conducted.

(ix) The burden is on the
prosecution to establish that the obligation
imposed by Section 50 was duly complied
with before the search was conducted.

(x)
Any
incriminating
contraband,
possession
of
which
is
punishable under the NDPS Act and
recovered in violation of Section 50 would
be inadmissible and cannot be relied upon
in the trial by the prosecution, however, it
will not vitiate the trial in respect of the
same. Any other article that has been
recovered may be relied upon in any other
independent proceedings."

48. In Ranjan Kumar Chadha
(Supra), it is held that Section 50 would
not apply if nothing incriminating is
recovered from the person of the accused.
In the same judgment, Hon'ble Supreme
Court has drawn distinction where it is held
that upon conducting the search of the bag,
opium was recovered and the Court
acknowledged the divergent views and
noted that the decision of SK. Raju @
Abdul Haque @ Jagga Vs. State of West
Bengal, (2018) 9 SCC 708 was not
considered while deciding State of Punjab
Vs. Baljinder Singh (2019) 10 SCC 473. In
the case of Kallu Khan v. State of
Rajasthan, 2021 SCC OnLine SC 1223,
wherein the search and seizure was made
from the accused's motorcycle. The Court
while holding that the search cannot be said
to be vitiated on account of noncompliance of Section 50 as the same only
applies to a search of a person.

49. Relevant paragraphs relied upon
by learned counsel for CBN are quoted
herein-under:-

110. However, it is pertinent to
note that although Pawan Kumar (supra)
has been referred to and considered in SK.
Raju (supra) yet, the Court in SK. Raju
(supra) overlooked the fact that in Pawan
Kumar (supra) also the search was not only
of the person of the accused but also of his
bag.