Section 42 NDPS Lapse: HP High Court Upholds Opium Acquittal

Prior Information but No Recorded Reasons Under Section 42: Himachal Pradesh High Court Upholds Opium Acquittal

State of Himachal Pradesh v. Ramesh Kumar Thakur 2026:HHC:49133 Decided 6 November 2026

Published: 11 November 2026 · NyayVidhan · 3 min read

In State of Himachal Pradesh v. Ramesh Kumar Thakur (2026:HHC:49133), the Himachal Pradesh High Court dismissed the State's appeal against an acquittal for possessing 1 kg 50 g of opium under Section 18 of the NDPS Act (paras 1, 29). The police had prior information but recorded no reasons of belief for a superior officer under Section 42, and with every independent witness denying the recovery, the official witnesses' version could not be relied upon (paras 17, 22, 24, 27-28).

Key holdings

An entry recording secret information shows prior information, so Section 42 had to be complied with (para 17).

No memo of reasons of belief or of their communication to a superior: total non-compliance with Section 42 (paras 17, 20, 22).

All independent witnesses, including the shopkeeper who supplied the scale, denied the recovery; the supervising Deputy Superintendent was not examined (paras 24-25).

An appellate court does not disturb an acquittal merely because another view is possible (paras 13-15).

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Brief Facts

The Special Judge-1, Shimla acquitted the accused on 28.02.2015, giving him the benefit of doubt, in a case registered on 08.02.2009 under Section 18 of the NDPS Act (paras 1-2). The prosecution alleged that a State CID Crime Branch investigating officer received secret information that the accused was transporting opium and charas in his van; an entry was made in the register, and a police party, joined on the way by a Deputy Superintendent of Police and two independent witnesses, recovered 1 kg 50 g of opium from a thermos bottle beneath the rear seat of the parked van (para 3). The State argued that the official witnesses proved the recovery although the independent witnesses denied it (para 7).

Court's Findings

Bhupesh Sharma J., writing for the Division Bench, began with the limits of an appeal against acquittal: the appellate court interferes where the judgment is perverse, and where two views are possible it does not disturb the acquittal merely because it could reach a different conclusion; the burden of proof never shifts (paras 13-16). The register entry showed that the police had prior information, so Section 42 had to be complied with, yet no memo recorded the reasons of belief before the party left or conveyed them to a superior officer (para 17). Delayed compliance with a satisfactory explanation may be acceptable, but total non-compliance is not, and the investigating officer failed to comply (paras 20-22). On the recovery, every independent witness, including the shopkeeper whose weighing scale was used, denied the search and seizure; the supervising Deputy Superintendent's presence appeared in no document and the officer was not examined; and the two police witnesses contradicted each other on the documents and the personal search (paras 24-26). Their version could not be relied upon, the case became vulnerable, and the trial court rightly acquitted (paras 27-28).

Legal Principle

Where the police act on prior information, Section 42 of the NDPS Act requires the reasons of belief to be written down and conveyed to a superior officer; total non-compliance is impermissible. An acquittal is disturbed only if perverse, and where every independent witness denies the recovery, the official witnesses' version may be rejected (paras 15, 17, 20-22, 27).

NyayVidhan's view · Practice note

Why It Matters

This Division Bench ruling shows how a State appeal against acquittal fails when the record holds an entry of secret information but no written reasons of belief sent to a superior officer (paras 17, 22). The Bench relied on Karnail Singh v. State of Haryana, the Supreme Court's 2009 ruling on Section 42 compliance, and held that delay may be explained but total non-compliance cannot (paras 18-22). Prosecutors must prove the Section 42 record and examine any supervising officer said to be present. Compare Shyam Lal v. State of H.P. (Cr. Appeal No. 314 of 2015, 04.11.2026), where the same Court found sufficient compliance because the information was written down and sent at once to the Deputy Superintendent.

Editorial comment by the NyayVidhan Editorial Desk. It is not part of the Court's judgment and is not legal advice.

Precedents Relied Upon

Muralidhar alias Gidda & another vs. State of Karnatka (2014) 5 SCC 730
Referred To Discussed at ¶ 11
Referred to as a decision that dealt elaborately with the scope of the appellate court's powers in an appeal against acquittal (para 11).
Rajesh Prasad vs. State of Bihar & another (2022) 3 SCC 471
Referred To Discussed at ¶ 11
Referred to, with Muralidhar, on the scope of the appellate court's powers in an appeal against acquittal (para 11).
H.D. Sundara & others vs. State of Karnataka (2023) 9 SCC 581
Relied Upon Discussed at ¶ 12
Relied on: the appellate court cannot overturn an acquittal only because, on reappreciating the evidence, it considers guilt proved beyond reasonable doubt (para 12).

View all precedents (11)

Jafarudheen and others vs. State of Kerala (2022) 8 SCC 440
Relied Upon Discussed at ¶ 13
Relied on and extracted: where the trial court's view is a possible one, the appellate court is slow to reverse an acquittal, which strengthens the presumption of innocence (para 13).
Surendra Singh v. State of Uttarakhand 2025 SCC OnLine SC 176: (2025) 5 SCC 433
Relied Upon Discussed at ¶ 14, 15
Relied on: an acquittal may be interfered with only if patently perverse, based on a misreading or omission of material evidence, and where no two reasonable views are possible (paras 14-15).
Karnail Singh Versus State of Haryana (2009) 8 SCC 539
Applied Discussed at ¶ 18, 19, 21, 22
Applied (Constitution Bench) on the requirement of writing down and conveying information to the superior officer before entry, search and seizure under Section 42(1) and 42(2); the investigating officer was held not to have complied (paras 18-19, 21-22).
Abdul Rashid Ibrahim Mansuri versus State of Gujarat (2000) 2 SCC 513
Relied Upon Discussed at ¶ 20
Relied on: total non-compliance with Section 42(1) and (2) is impermissible, though delayed compliance with a satisfactory explanation may be acceptable (para 20).
Sajan Abraham versus State of Kerala (2001) 6 SCC 692
Relied Upon Discussed at ¶ 20
Relied on with Abdul Rashid Ibrahim Mansuri: total non-compliance with Section 42 is impermissible; delayed compliance with a satisfactory explanation may be acceptable (para 20).
Sukhdev Singh vs. State of Haryana (2013) 2 SCC 212
Relied Upon Discussed at ¶ 21, 22
Relied on: non-compliance with Section 42(2) vitiates the trial and is impermissible (paras 21-22).
State of Rajasthan vs. Jograj Singh @ Hansa (2016) 11 SCC 687
Relied Upon Discussed at ¶ 21, 22
Relied on, with Sukhdev Singh, for the rule that non-compliance with Section 42(2) vitiates the trial (paras 21-22).
Rajender Singh vs. State of Haryana 2011 INSC 551
Relied Upon Discussed at ¶ 21, 22
Relied on, with Sukhdev Singh, for the rule that non-compliance with Section 42(2) vitiates the trial (paras 21-22).

Prior Information but No Recorded Reasons Under Section 42: Himachal Pradesh High Court Upholds Opium Acquittal

Judgment Intelligence

Key holdings

Brief Facts

Court's Findings

Legal Principle

Why It Matters

Precedents Relied Upon

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