Absence of THC Percentage Is Not Fatal; Joint Section 50 Intimation to Multiple Accused Vitiates Personal Search under the NDPS Act

Case: State of Himachal Pradesh v. Soni & Anr., 2025 HHC 33178

Court: High Court of Himachal Pradesh at Shimla

Bench: Hon’ble Mr. Justice Vivek Singh Thakur and Hon’ble Mr. Justice Sushil Kukreja

Date of decision: 23 September 2025 (Reserved on 18 September 2025)

Appeal: State appeal under Section 378 CrPC against acquittal in Sessions Trial No. 49/12 (Special Judge, Chamba)

Introduction

This appeal under Section 378 of the Code of Criminal Procedure challenged the acquittal of two accused, Soni (Respondent No. 1) and Ajay Kumar (Respondent No. 2), for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleged that during a midnight patrol on 08.05.2012 at Zero Point Jassourgarh, the police apprehended the two respondents and recovered 600 grams of charas from Soni and 400 grams from Ajay Kumar during their personal search. The trial court acquitted the accused, primarily because the Forensic Science Laboratory (FSL) report did not state the percentage of tetrahydrocannabinol (THC), relying on a then-prevailing High Court decision in Sunil v. State of HP (2010).

On appeal, the Himachal Pradesh High Court addressed three central issues:

• The standard of appellate interference with acquittal.
• Whether absence of THC percentage in the FSL report is fatal to proving “charas.”
• Whether Section 50 NDPS Act was violated by taking a joint consent from two accused for personal search, rather than individually informing them of their rights.

The Court dismissed the State’s appeal, affirming the acquittal but on a different and legally significant basis: a clear violation of Section 50 owing to a joint consent memo used for both accused, rendering the recovery inadmissible.

Summary of the Judgment

• The High Court reaffirmed the settled appellate restraint in appeals against acquittal: the double presumption of innocence and the need to respect a possible view of the trial court, barring perversity.
• The trial court’s reliance on Sunil v. State of HP (2010) to acquit for lack of THC percentage was incorrect; that view stands overruled by the larger Bench in State of HP v. Mehboob Khan (2014 CriLJ 705). Under Mehboob Khan, the absence of a quantified THC percentage in the FSL report is not fatal to proving “charas,” and the entire resinous mass can be treated as “charas” if resin is present.
• However, the conviction still could not stand because Section 50 NDPS Act was violated: the investigating officer communicated the right under Section 50 to both accused jointly and obtained a joint consent (Ext. PW-1/B). Relying on State of Rajasthan v. Parmanand (2014) 5 SCC 345 and Ranjan Kumar Chadha v. State of HP (AIR 2023 SC 5164), the Court held that individualized communication is mandatory; joint intimation and joint consent are invalid.
• Since the contraband was recovered in the course of personal search (the bags were tied beneath clothing/vest), Section 50 applied fully. The recovery was inadmissible; therefore, the prosecution failed to prove guilt beyond reasonable doubt.
• The appeal was dismissed. Post-judgment bonds were directed under Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), in alignment with the new procedural code replacing the erstwhile Section 437A CrPC practice.

Detailed Analysis

A. Precedents Cited and Their Influence

1) Appellate restraint in appeals against acquittal

• Muralidhar @ Gidda v. State of Karnataka, (2014) 5 SCC 730: Reiterates the double presumption of innocence and the appellate court’s reluctance to disturb a reasonable view adopted by the trial court. The High Court restated these core principles to frame the standard of review.
• Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: Summarizes when higher courts may interfere with acquittals — only in rare cases of perversity or legally untenable reasoning ignoring vital evidence. The HP High Court applied this caution in declining to overturn the acquittal.
• H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: Clarifies that an appellate court cannot reverse an acquittal merely because it can reach another view on reappreciation; interference lies only if conviction is the only possible view. The Court used this to emphasize deference to the acquittal.

2) Proof of “charas”: THC percentage not mandatory

• Sunil v. State of HP, 2010(1) Shim. LC 192: The trial court relied on this decision to insist on THC percentage in the FSL report — but this approach is no longer good law.
• State of HP v. Mehboob Khan, 2014 CriLJ 705 (Larger Bench): Overrules Sunil, holding that there is no legal requirement for a specified THC/resin percentage to prove “charas.” The presence of resin, whether crude or purified, suffices; the whole resinous mass is to be treated as charas for quantity determination. The High Court expressly corrected the trial court on this point.

3) Mandatory individualized Section 50 communication

• State of Rajasthan v. Parmanand, (2014) 5 SCC 345: Joint intimation of Section 50 rights is impermissible; communication must be clear, unambiguous, and individual. This safeguards against confusion and dilution of the statutory right.
• Ranjan Kumar Chadha v. State of HP, AIR 2023 SC 5164: Reiterates and systematizes Section 50 requirements, emphasizing individualized communication and that any contraband recovered in violation of Section 50 is inadmissible (though the trial per se is not vitiated). The High Court relied on these principles to invalidate the recovery flowing from the personal search.

B. The Court’s Legal Reasoning

1. Standard of review respected: The Court began by reaffirming the limited scope of appellate interference with an acquittal — double presumption of innocence and the “possible view” doctrine — drawing from Muralidhar, Rajesh Prasad, and H.D. Sundara.
2. Trial court’s ground corrected: While the trial court acquitted for want of THC percentage (relying on Sunil), the High Court clarified that this is no longer tenable after the larger Bench ruling in Mehboob Khan. Therefore, in principle, the non-mention of THC percentage in the FSL report (Ext. PX) would not, by itself, defeat the prosecution case on the nature of the substance.
3. Focus shifts to Section 50 compliance: The decisive issue became whether Section 50 NDPS was complied with. The record showed a joint consent memo (Ext. PW-1/B) for both accused. Given that the contraband was found during personal search (bags strapped beneath clothing/vest), Section 50 was squarely attracted.
4. Joint intimation is fatal: Applying Parmanand and Ranjan Kumar Chadha, the Court held that the right under Section 50 must be individually communicated and individually exercised or waived. A joint communication/memo is a clear violation. This breach rendered the recovery inadmissible.
5. Resulting evidentiary deficit: With the core recovery excluded, the prosecution lacked reliable incriminating evidence to establish guilt beyond reasonable doubt. Consequently, the acquittal stood affirmed, not because of the FSL lacunae (as the trial court thought), but because of a fundamental procedural violation under Section 50.
6. BNSS transition observed: The Court directed the respondents to execute bonds under Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023, reflecting the shift from Section 437A CrPC to the BNSS post-acquittal bond regime.

C. Impact and Prospective Significance

1) Investigative practice under the NDPS Act

• Individualized Section 50 compliance is non-negotiable: For multiple suspects intended to be searched, each must be individually informed of the Section 50 right (choice of a nearest Gazetted Officer or Magistrate) and must individually exercise or waive it. Pro forma “joint consent” templates are legally unsafe.
• Clarity of communication matters: The intimation must be in clear and unambiguous terms; while writing is not mandatory, prudence dictates written recording to pre-empt disputes. Avoid terms that suggest choice of any “senior officer” connected to the raiding party; the officer must be independent and not part of the raid.
• Personal search vs. non-personal search: Where the contraband is recovered in the course of a personal search (e.g., a pouch/bag concealed beneath clothing and strapped to the body), Section 50 is triggered. Investigators must be trained to identify when Section 50 applies and to pause for compliance before proceeding.
• FSL expectations recalibrated: After Mehboob Khan, the absence of a THC percentage in the FSL report does not, by itself, defeat proof of “charas.” Laboratories and prosecutors should avoid fixating on THC quantification as a legal necessity for “charas.”

2) Litigation strategy and trial management

• Prosecution: Build Section 50 compliance into the case from the outset. For multiple accused, maintain separate Section 50 notices, consents, and endorsements. If Section 50 is violated, expect recovery to be excluded.
• Defence: Scrutinize whether Section 50 was individualized in multi-accused cases. A joint memo or a single composite intimation is a powerful ground to exclude the recovery.
• Courts: This decision encourages a two-step adjudication: (i) verify correct legal standards (e.g., Sunil overruled by Mehboob Khan); (ii) then test for procedural compliance under Section 50 where personal search is involved.
• Appellate practice: Reinforces caution in interfering with acquittals — even if the trial court’s reasoning is imperfect, an acquittal can be sustained on correct legal grounds found on appeal.

3) Procedural transition under BNSS

The Court’s direction under Section 481 BNSS (requiring post-acquittal bonds to ensure appearance in potential further proceedings) signals that the Himachal Pradesh High Court has aligned its post-acquittal practice with the BNSS regime replacing earlier CrPC provisions. This is procedurally significant for the State as well as acquitted persons and counsel managing appellate risks.

Complex Concepts Simplified

1) Section 50 NDPS Act — What is it and when does it apply?

Section 50 provides a suspect with the right to be searched in the presence of a Gazetted Officer or a Magistrate before a personal search is conducted by the empowered officer. It serves as a safeguard against potential misuse of power in cases carrying severe penalties.

• When it applies: Only to the personal search of a person. In this case, the contraband was found in bags tied beneath clothing or under a vest — a mode of concealment integrally associated with the person — so Section 50 applied.
• How to comply: Before search, inform the suspect clearly and individually that he can be searched in the presence of a Gazetted Officer or Magistrate. If he declines, record the refusal (ideally in writing) and proceed. If he exercises the right, take him to the nearest Gazetted Officer or Magistrate.
• Multiple suspects: Each person must be separately informed and must separately exercise/waive the right. Joint communication is unlawful.
• Consequence of violation: Any contraband recovered from a personal search in breach of Section 50 is inadmissible against the accused. The trial itself is not automatically vitiated, but without the recovery, the prosecution often cannot sustain its burden.

2) “Charas” and the FSL report — Is THC percentage required?

No. After the larger Bench ruling in State of HP v. Mehboob Khan (2014), there is no legal requirement to mention a particular percentage of THC or resin in the FSL report to prove that a substance is “charas.” If the substance is a resinous mass derived from the cannabis plant, the entire mass is treated as charas for quantity classification. The earlier contrary view in Sunil v. State of HP (2010) is not good law.

3) Appeals against acquittal — Why are courts so cautious?

Because an acquittal strengthens the presumption of innocence. Appellate courts will not overturn an acquittal unless the trial court’s view is perverse or the only reasonable conclusion from the evidence is guilt. If the trial court’s view is “possible,” even if another view is also possible, the acquittal stands.

Conclusion

The Himachal Pradesh High Court’s decision in State of HP v. Soni clarifies two critical points in NDPS jurisprudence and practice:

• On proof of charas: The absence of a THC percentage in the FSL report is not, per se, fatal — reaffirming the authoritative position in Mehboob Khan and disapproving reliance on Sunil.
• On Section 50 compliance: Individualized communication of the right to be searched before a Gazetted Officer or Magistrate is mandatory for each suspect; joint intimation or joint consent is a clear violation that renders the personal-search recovery inadmissible.

While the State’s appeal sought to correct what it perceived as a flawed acquittal, the High Court sustained the acquittal on a more fundamental ground: a breach of statutory safeguards that protect against possible abuse in cases involving severe penalties under the NDPS Act. The ruling serves as a cautionary template for law enforcement to tighten procedural compliance — especially with Section 50 in multi-accused scenarios — and for trial courts to assess NDPS recoveries through the prism of mandatory safeguards. Procedurally, the invocation of Section 481 BNSS underscores the ongoing transition to the new criminal procedure framework in post-acquittal practice.

Key takeaway for investigators and prosecutors: In multi-accused NDPS cases involving personal searches, use separate, clear, individualized Section 50 notices and consents; treat any recovery from personal search without such compliance as evidentially unsafe. Do not insist on THC percentage in FSL reports to prove “charas.”