High Court Acquits Accused in NDPS Case Due to Non-Compliance with Mandatory Search and Seizure Procedures. Failure to Join Independent Witnesses and Lack of Proper Sampling Renders Conviction Unsustainable Under Section 20(b)(ii)(B) and 20(c) of Narcotic Drugs and Psychotropic Substances Act, 1985.

High Court: Karnataka High Court Bench: KALABURAGI In Favour of Accused

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2026-05-18 13:49:19

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Case Note & Summary

The High Court of Karnataka, Kalaburagi Bench, allowed two criminal appeals filed by Sharukh S/o Ayyub Khan and Shubham S/o Anupchand Chodhari against their conviction under Section 20(b)(ii)(B) and 20(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellants were convicted by the II Additional District and Sessions Judge, Bidar, sitting at Basavakalyan, in Special Case No.312/2019 (later renumbered as 312/2021) on 29.08.2022. The prosecution alleged that on 18.08.2019, the police intercepted the appellants near Humnabad and recovered 2 kg 200 grams of ganja from each of them. The trial court convicted them and sentenced them to rigorous imprisonment for 5 years and a fine of Rs.50,000 each. The appellants challenged the conviction on grounds of non-compliance with mandatory search and seizure procedures under the NDPS Act. The High Court examined the evidence and found that the prosecution had not joined independent witnesses despite their availability, and the sampling procedure was not followed as per the Standing Orders. The court also noted that the accused were not informed of their right to be searched before a gazetted officer or magistrate as required under Section 50 of the NDPS Act. The court held that the prosecution failed to prove its case beyond reasonable doubt and set aside the conviction and sentence, acquitting the appellants.

Headnote

A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(B), 20(c) - Search and Seizure - Non-compliance with mandatory procedure - The prosecution failed to join independent witnesses despite availability, and the sampling procedure was not followed as per Standing Orders. The court held that such non-compliance vitiates the trial and the conviction cannot be sustained. (Paras 10-15)

B) Criminal Law - Evidence Act, 1872 - Section 114 - Presumption - The court noted that the prosecution must prove its case beyond reasonable doubt, and the failure to comply with mandatory provisions raises a presumption against the prosecution. (Para 12)

C) Criminal Law - NDPS Act - Section 50 - Right of accused - The court observed that the accused were not informed of their right to be searched before a gazetted officer or magistrate, which is a mandatory requirement. (Para 11)

Issue of Consideration

Whether the conviction of the appellants under Section 20(b)(ii)(B) and 20(c) of the NDPS Act is sustainable when the prosecution failed to comply with mandatory search and seizure procedures, including the requirement of independent witnesses and proper sampling.

Final Decision

Appeals allowed. Judgment of conviction and order of sentence dated 29.08.2022 passed by II Additional District and Sessions Judge, Bidar, sitting at Basavakalyan, in Special Case No.312/2019 (later 312/2021) is set aside. Appellants are acquitted of all charges. Their bail bonds stand cancelled.

Law Points

Mandatory compliance with Section 50 of NDPS Act
Search and seizure procedure
Independent witnesses
Sampling procedure
Burden of proof on prosecution

Case Details

2024 LawText (KAR) (07) 107

CRL.A No. 200230 of 2023 C/W CRL.A No. 200147 of 2023

2024-07-05

S.Vishwajith Shetty

Sri Santosh Kumar B. Metri, Sri B.C. Jaka, Sri Veeranagouda Malipatil

Sharukh S/o Ayyub Khan and Shubham S/o Anupchand Chodhari

State of Karnataka

Nature of Litigation

Criminal appeals against conviction under NDPS Act

Remedy Sought

Setting aside of conviction and acquittal of appellants

Filing Reason

Appellants were convicted for possession of ganja without proper compliance with mandatory procedures

Previous Decisions

Trial court convicted appellants on 29.08.2022 in Special Case No.312/2019 (later 312/2021)

Issues

Whether the search and seizure were conducted in compliance with Section 50 of NDPS Act? Whether the prosecution failed to join independent witnesses? Whether the sampling procedure was followed as per Standing Orders?

Submissions/Arguments

Appellants argued that mandatory procedures under NDPS Act were not followed, including failure to inform accused of their rights and non-joining of independent witnesses. Respondent argued that the prosecution proved its case beyond reasonable doubt and the conviction was justified.

Ratio Decidendi

Non-compliance with mandatory search and seizure procedures under the NDPS Act, including failure to join independent witnesses and improper sampling, vitiates the trial and renders the conviction unsustainable. The prosecution must prove its case beyond reasonable doubt, and any doubt arising from non-compliance must be resolved in favor of the accused.

Judgment Excerpts

The prosecution has failed to comply with the mandatory provisions of the NDPS Act. The non-joinder of independent witnesses and improper sampling procedure casts serious doubt on the prosecution case.

Procedural History

The appellants were convicted by the II Additional District and Sessions Judge, Bidar, sitting at Basavakalyan, on 29.08.2022 in Special Case No.312/2019 (later 312/2021). They filed appeals under Section 374(2) Cr.P.C. before the High Court of Karnataka, Kalaburagi Bench, which were heard together and disposed of by this judgment.