JUDGMENT - V.H. BHAIRAVIA, J. :---This appeal is against the judgment and order dated 27-4-1993 passed by the learned Addl. Sessions Judge, Greater Bombay in N.D.P.S. Case No. 832 of 1988 and thereby the appellant has been convicted for an offence punishable under section 8(c) read with section 21 of the N.D.P.S. Act and sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1 lakh, in default R.I. for 9 months. Further, he has been convicted under section 8(c) of the N.D.P.S. Act punishable under section 28 r/w. section 23 of the N.D.P.S. Act and sentenced to suffer R.I. for 10 years and to pay fine of Rs. 1 lakh, in default R.I. for 9 months. Further, he has been convicted under section 135(1)(a) r/w section 135(I)(II) of the Customs Act, 1962 and sentenced to suffer R.I. for 1 year and to pay fine of Rs. 3,000/-, in default R.I. for one month. All the substantive sentences of imprisonment to run concurrently. 2. The prosecution case in brief is that, Mr. R. Ramesh, Intelligence Officer, Narcotic Control Bureau, Bombay received a secret information on 23-5-1988 at about 7 p.m. that one Nigerian national by name Daniel Odemenam was to fly by air-ticket for Ethiopian Airlines Flight No. Et-611 departure at 4.15 hrs. and was to travel from Bombay to Lagos from Sahar International Airport. It was further informed that the said Daniel Odemenam was likely to carry about 2 kgs. heroin in his personal baggage. The said information was reduced into writing by P.W. 1 Mr. R. Ramesh. Thereafter, the written information was submitted to his immediate superior officer Shri R.N. Kakkar. Accordingly, on 24-5-1988, a trap was arranged at about 2.30 hrs. by P.W. 1 R. Ramesh, Shri A.S. Menon, Shri R.V. Pardeshi and other Intelligence Officers alongwith the constables. They all went to departure module II. P.W. 1 R. Ramesh collected the passengers manifest of Ethiopian Airlines No. ET/611/ETD from the office of Airlines and on persual of the manifest of the passengers, he found the name of Daniel Odemenam (i.e. the appellant) at Serial No. 30 in the list. Hence, they incircle the Serial No. 30 of the manifest of the passengers. Two persons who were working on the said Airport were called as panchas. It reveals that at about 3.15 hrs. Hence, they incircle the Serial No. 30 of the manifest of the passengers. Two persons who were working on the said Airport were called as panchas. It reveals that at about 3.15 hrs. one Nigerian national submitted his passport on the Customs counter and at that time P.W. 1 R. Ramesh told the panch witnesses that he is the same person about whom they had received an information and are in search of him. While appellant was submitting his passport on the counter, P.W. 1 R. Ramesh noticed the photograph and confirmed that he is the same person about whom a secret information was received. It also reveals that P.W. 1 R. Ramesh took out passport from the custody of the appellant-accused and demanded the remaining travelling documents from the accused. On demand, the appellant produced air-ticket, jacket, boarding card, baggages claim tag which was affixed to the air-ticket jacket. The foreign travel token was also affixed to the air-ticket. The air-ticket was for the sector from Bombay to Lagos. P.W. 1 R. Ramesh enquired about the baggage of the appellant. The appellant was carrying blackish colour hand bag in his hand. It also reveals that P.W. 1 checked the baggages belonged to the appellant but nothing incriminating was found from the baggage. It reveals that P.W. 1 R. Ramesh asked the appellant to open the hand bag which was in the hand of the appellant. The appellant opened the hand bag and it was found empty. However, the weight of the hand bag was found abnormal. Hence, the hand bag was minutely checked. He found two polythene bags covered with cellophane tapes on both sides of the inner lining side of the bag. So, he removed both the polythene bags from the hand bag which were stuck to the inner side of the bag. The two polythene bags were filled with brown colour powder. P.W. 1 R. Ramesh opened both the polythene bags and withdrew some small quantity of the powder from the polythene bags and tested the same with the help of field testing kit and the test answered positive for heroin. The weight of the two polythene bags was 2 kg. P.W. 1 then withdrew some more quantity of brown colour powder from both the polythene bags and collected the same in the steel container, mixed the same and divided the same in 5 parts. The weight of the two polythene bags was 2 kg. P.W. 1 then withdrew some more quantity of brown colour powder from both the polythene bags and collected the same in the steel container, mixed the same and divided the same in 5 parts. The weight of each part was approximately 5 grams. These 5 parts were collected in 5 polythene packets and each of the part containing the sample was kept in separate envelopes. Then the said envelopes were pasted and sealed with N.C.B. bearing No. 02. The panchas had also put their signatures on all the 5 envelopes in the presence of the appellant. The remaining substance in the polythene bags were packed again and sealed. The brown colour hand bag of the appellant was also seized and one label was affixed to it bearing the siganture of the panchas. It also reveals that the appellant had produced some more documents on demand by P.W. 1 R. Ramesh. They were, two photographs one letter and three other documents. One Shri A.S. Menon wrote the panchanama of the search and seizure proceedings at the scene of offence. Thereafter, five samples were sent to different C.As. and obtained opinion. On receiving the opinion of the C.A., the appellant was chargesheeted and committed to the Designated Court for trial for an offence under the N.D.P.S. Act. 3. After recording the prosecution case, the learned Judge held the appellant guilty for commission of offence punishable under section 8(c) read with section 21 of the N.D.P.S. Act and under section 8(c) of the N.D.P.S. Act punishable under section 28 r/w. section 23 of the N.D.P.S. Act and sentenced to R.I. for 10 years and to pay fine of Rs. 1 lakh, in default 9 months R.I., by his impugned judgment and order. Hence this appeal. 4. The short question involved in this appeal is the compliance of section 50 of the N.D.P.S. Act. The learned Counsel Mr. Keshwani has emphatically submitted that there is a clear breach of mandatory procedure required to be followed under section 50(1) of the Act and therefore, in view of the Supreme Court judgement rendered in (State of Punjab v. Balbir Singh)1, A.I.R. 1994 Supreme Court page 1872, the entire trial is vitiated and the appellant is for acquittal. The learned Counsel has read over the evidence of P.W. 1 R. Ramesh and P.W. 3 Mr. The learned Counsel has read over the evidence of P.W. 1 R. Ramesh and P.W. 3 Mr. Kakkar to carry out the raid and also the panch witness Subhash Rathod (P.W. 2) and panchanamas (Exh. 6 and 29) and submitted that there is no evidence to show that the appellant was asked for his option regarding his search through the Gazetted Officer or by the Magistrate. The learned Counsel has vehemently submitted that this is the mandatory procedure required to be followed by the Raiding Party in the search of contraband goods under the N.D.P.S. Act as held by the Supreme Court in case of State of Punjab v. Balbir Singh. It has been observed as follows :--- Para 26(5)---On prior information, the empowered officer or authorised officer while acting under section 4(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. 5. In the instant case, there was a prior information received by P.W. 1 which was reduced into writing and forwarded to his superior officer Mr. Kakkar who arranged the trap. Neither in the evidence of P.W. 1 R. Ramesh and P.W. 3 Kakkar have been stated that the appellant-accused was asked for his option as required under section 50(1) of the N.D.P.S. Act. We do not find any evidence even in the evidence of panch witness, P.W. 2. Therefore, it is clear that no opportunity was offered to the appellant in compliance of section 50 of the Act. However, the learned Additional Public Prosecutor Mr. We do not find any evidence even in the evidence of panch witness, P.W. 2. Therefore, it is clear that no opportunity was offered to the appellant in compliance of section 50 of the Act. However, the learned Additional Public Prosecutor Mr. Agrawal appearing for customs submitted that the ratio laid down by the Supreme Court is limited to the extent that the search is restricted to person only i.e. physical search of the suspected person and not his baggages nor his belongings. The incriminating substance found in the hand bag of the appellant does not fall within the scope of search of person under section 50(1) of the Act and therefore, the ratio laid down by the Supreme Court is not applicable in the instant case. We did not go far to find out the answer to this. The Supreme Court itself has answered to this in its judgment rendered in the case of (Ali Mustaffa Abdul Rahman Moosa v. State of Kerala)2, Judgment Today 1994(5) Supreme Court 326, delivered on 28-9-1994. In para 2 of the said judgment, it is observed that :--- "According to the prosecution case, on 12-10-1988 at about 11.15 p.m. the appellant was found in possession of 780 gms. of charas in the first class waiting room of the railway station at Quilon. P.W. 6 Ashok Kumar, Sub-inspector of Police attached to the Quilon railway station on receipt of reliable information that a foreigner having charas in his possession was sitting at the Quilon railway station, went to the platform where P.W. 1 constable Nataraja Pillai was on patrol duty. Both P.W. 1 and P.W. 2 went to the first class waiting room. The appellant was found sitting there with a bag. On suspicion, he was questioned by P.W. 1 and P.W. 6. The appellant took out a small packet of charas from his bag and handed it over to P.W. 6. On further questioning and search, P.W. 6 recovered three big packets of charas from the bag which was in possession of the appellant. The seizure of charas was effected in presence of the witnesses on the spot itself and the contruband was taken into possession after making the mahazar. The other valuable articles which were with the appellant were also taken into custody, after preparing the recovery memo. The seizure of charas was effected in presence of the witnesses on the spot itself and the contruband was taken into possession after making the mahazar. The other valuable articles which were with the appellant were also taken into custody, after preparing the recovery memo. The contraband was weighed and in the presence of witnesses, a small portion from each of the four packets of contraband, was taken as sample for examination. The search and seizure lasted till about 5.00 a.m. on 13-10-1988. The seized articles were kept in safe custody of the police station and the appellant was produced before the Magistrate, after the registration of the case. After further investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Qulion who committed the case to the Sessions Court for trial" 6. In view of the latest judgment of the Supreme Court, we have no other option but to accept this. Therefore, the contention of the learned Addl. Public Prosecutor is unsustainable and hence, rejected. 7. In view of the Supreme Court, the very crucial point involved in this case and we are left with no any scope for discussing except to dispose of this appeal. In view of the aforesaid two judgments rendered by the Apex Court. 8. In the result, appeal is allowed. The judgment and order of conviction dated 27-4-1993 is set aside and the appellant is set at liberty forthwith, if he is not required in any other case. Appeal allowed. *****