C. K. PRASAD, J. ( 1 ) THE sole appellant has preferred this appeal from jail being aggrieved by the order dated 7th May 1993 passed by the 4th Addi. Sessions Judge Ratlam in S. T. No. 128/92 whereby while holding him guilty for an offence under 5. 8/18 of the N. D. P. S. Act sentenced him to undergo R. I. for ten years and to pay a fine of Rs. one lack failing which to suffer R. I. for one year. ( 2 ) ASSISTANCE of Shri A. N. Pradhan has been rendered to this Court by the Legal Aid Board to defend the appellant. ( 3 ) PROSECUTION case in short is that on 5. 4. 1992 P. W. 1 Hawaldar Ashok Pal was functioning as a train guard wherein he got information that one person was sitting in the ladies compartment of Dehradoon train with an attache containing opium. When the said information was received by the Hawaldar at Chomela railway station the train started for Alot, he along with police personnel entered the ladies compartment at Alot railway station, the train left Alot railway station and moved towards Nagda railway station. The police personnel found the appellant sitting with an attache near the latrine of the ladies compartment. On an enquiry, the appellant stated that it contained only clothes. On further enquiry the appellant stated that it contained opium. Ultimately the police personnel along with the appellant get down at Nagda Railway Station and two panch witnesses Jaswant and Hemraj (P. W. 2 and P. W. 3) respectively were told about the statement made by the appellant about possession of the opium. The appellant and the witnesses thereafter produced before the S. I. police P. W. 4 Rajbeer Sharma who inquired about C. S. P. and Naib Tahsildar for the purpose of search but they were not found. P. W. 4 Rajbeer then asked for appellants consent for search, wherein he agreed for being searched by the sub-inspector himself. The appellant gave the key of the attache to P. W. 4 Rajbeer and when the attache was opened, besides clothes, a black material was found in a polythene bag which apparently looked like opium. The same was smelt and tasted by P. W. 4 Rajbeer and the witnesses and they found the same to be opium. The appellant gave the key of the attache to P. W. 4 Rajbeer and when the attache was opened, besides clothes, a black material was found in a polythene bag which apparently looked like opium. The same was smelt and tasted by P. W. 4 Rajbeer and the witnesses and they found the same to be opium. Weight of the opium recovered from possession of the appellant was 5. 500 kgs. and two samples of 30 gms. each were taken and scaled in presence of the panchas. A sample was sent for chemical examination and the report of analysis was that the same was opium. ( 4 ) THE defence of the appellant was that he was innocent and he was falsely implicated in the case. His further defence is that he was sleeping at Suwasra Railway station and was going to village Bijnakhedi where he was apprehended and brought to Nagda police station and was implicated in the false case. ( 5 ) THE prosecution in support of its case examined altogether 5 witnesses. No witness has been examined by the defence. ( 6 ) P. W. 1 Ashok Pal was a Hawaldar and has stated in his evidence that on 5. 4. 1992 he was on guard duty in Rajdhani Express from Railway Station Ratlam to Kota. In the night between 4. 4. 1992 and 5. 4. 1992 other constables were also with him. They reached Kota at 4. 00 a. m. When they were returning to Ratlam after performing their duty by Dehradun train and when the train reached Chomela which was near the border of Rajasthan and M. P. , he got an information that one person was carrying opium in his attache and was silting in the ladies compartment. When the train stopped at Alot station he entered into the ladies compartment. There he found the appellant standing near the latrine of the ladies compartment and was carrying an attache. On enquiry, the appellant stated that it contained only clothes. Thereafter he stated that he was carrying opium also. Ultimately the train reached Nagda railway station. This witness along with police personnel got down and went to G. R. P. police station. There he found the appellant standing near the latrine of the ladies compartment and was carrying an attache. On enquiry, the appellant stated that it contained only clothes. Thereafter he stated that he was carrying opium also. Ultimately the train reached Nagda railway station. This witness along with police personnel got down and went to G. R. P. police station. While getting down from the train two witnesses namely P. W. 2 Jaswant and P. W. 3 Hemraj who sell tea at the railway station, were told about statement made by the appellant about possession of opium. The appellant was produced before the S. L police and the officer-in-charge of the police station Rajbeer (P. W. 4) made inquiry about C. S. P. and Naib Tahsildar but they were not found. Thereafter the appellant stated that he was prepared to give search to P. W. 4 Rajbeer and thereafter took out a key from pocket and handed it over to the S. I. The attache was opened wherein a polythene bag was found beneath the clothes. Material kept in the bag was smelt and tasted by this witness as also other witnesses and they were of opinion that the same was opium. The material seized was weighed and it was found to be 5. 500 kgs. Two samples of opium of 30 gms. each were made and sealed. Rest of the opium was also sealed. ( 7 ) P. W. 2 Jaswant has stated in his evidence that the police has seized Bidi, Match box etc. from the possession of the appellant but did not state about the seizure of opium. He has however admitted to have put his signature on the seizure memo. This witness was declared hostile by the prosecution. In his cross-examination he has admitted that black material was taken out from the attache which was smelt bi him but he has denied to have tasted the same. He has also admitted that the colour of opium was black and the material seized was opium. He has also admitted that black material seized from possession of the appellant was 5. 500kgs. and two samples of 30 gms. each were taken out from the same and were sealed. ( 8 ) P. W. 3 Hemraj has stated in his evidence that he and the appellant were taken to G. R. P. police station by the police personnel. 500kgs. and two samples of 30 gms. each were taken out from the same and were sealed. ( 8 ) P. W. 3 Hemraj has stated in his evidence that he and the appellant were taken to G. R. P. police station by the police personnel. He has further stated that police personnel has stated that the appellant when informed as to by whom he wants to be searched, he gave his consent for search by the police itself. Key was given by the petitioner and when the attache was opened by the said key, smell of opium was coming out. He has further stated that he smelt the material kept in the attache and its smeli was that of opium. He has also stated that two samples of 80 gms. each were prepared and scaled which contains his Signature also. ( 9 ) P. W. 4 Rajbeer is the Sub-Inspector of police. He has slated in his evidence that P. W. Ashok Pal along with other police personnel and panch witnesses P. W. 2 Jawant and P. W. 3 Hemraj came of the police station on 5. 4. 1992 and the appellant was carrying an attachc. He has further stilted that P. W. 1 Ashok Pal stated him that when he was coming from Kota aftcr performing his guard duty by Dehradun train at Chomela Railway station, he got an information that the appellant was sitting in the ladies coach with an aliliche which contained opium. P. W. 1 Ashok along with other constables entered into the ladies compartment and found the appellant sitting near latrine of the compartment. P. W. 1 Ashok Pal made enquiry from the appellant to which he stated that the attache contained only clothes, but therefore admitted that it contained opium also. After the train reached Nagda railway station the police personnel along with two panch witnesses P. W. 2 Jaswant and P. W. 3 Hemraj as also the appellant came to the police station. P. W. 4 Rajbeer also inquired from the appellant about the contents of the attache and he admitted that it contained opium. He looked for C. S. P. as also the Naib Tahsildar but they were not found. This witness asked the appellant as to whether any officer be called for the purpose of search the appellant stated that he is prepared to give search of this witness. He looked for C. S. P. as also the Naib Tahsildar but they were not found. This witness asked the appellant as to whether any officer be called for the purpose of search the appellant stated that he is prepared to give search of this witness. The evidence in this regard is as follows: (Hindi Matter)" This witness further stated that the appellant took out a key of the attache from his pocket and handed it over to him. When the attache was opened by the same key, opium was round beneath the clothes in a polythene bag. The bag was then opened and the article kept in the same was tested by panch witnesses and was also smelt. by them and they were of opinion that the same was opium. It was weighed and total weight of the said material was 5. 500 kgs. Two samples of 30 gms. each were taken and sealed. Rest of the material was also kept in a cloth bag and was sealed, This witness has further stated that he telephonically informed officer-in-charge of Ujjain police station to inform the D. S. P. and S. P. of Government Railway Police as both the officers had gone to Ujjain Singhasta fare. He has further stated that the sample was sent through a constable for chemical examination and report Ex. P/84 was sent by the Technical Officer Forensic Science Laboratory Sagar. P. W. 5 Lalsingh Yadav has stated in his evidence that P. W. 4 Rajbeer after investigation of the case has submitted report before him and he has submitted charge-sheet against the appellant under 5. 8/18 of the N. D. P. S. Act. ( 10 ) SHRI A. N. Pradhan appearing on behalf of the appellant submitted that the conviction of the appellant vitiated on account of non-compliance of 5. 50 of the N. D. P. S. Act, as the-appellant was not given option to be searched in presence of a gazetted officer or a Magistrate. ( 11 ) IN view or the authorities pronouncement of the Supreme Court in case of Balbeer Singh v. State of Punjab, there is no doubt that provisions of 5. 50 of the Act, which inter alia provides for giving option to the accused for being searched in presence of a Gazetted Officer or a Magistrate is mandatory. ( 11 ) IN view or the authorities pronouncement of the Supreme Court in case of Balbeer Singh v. State of Punjab, there is no doubt that provisions of 5. 50 of the Act, which inter alia provides for giving option to the accused for being searched in presence of a Gazetted Officer or a Magistrate is mandatory. The question however remains to be decided as to whether such an offer was given to the appellant. P. W. 1 Ashok Pal has stated in his evidence that the appellant on his own volition offfered P. W. 4 Rajbeer to take his search. P. W. 3 Hemraj has also stated in his evidence that the appellant has given his permission for being searched by the police personnel. P. W. 3 Hemraj has stated his evidence that the appellant was asked as to whether some officer be called for his search whereupon he has, stated that he was prepared to give search to the police itself. In fact the appellant was given offer that he had the right to be searched in presence of a gazetted officer or a Magistrate which shall be apparent from his own written admission contained in Ex. P. 5. This document in no uncertain terms states that he did not want that search of his attache be made by a senior officer or a Magistrate and he further volunteered that police personnel can taken search. The relevant portion of Ex. P. 5 in the hands of the appellant reads as follows: (Hindi matter) A reading of the evidence of P. W. 1 Ashok Pal, P. W. 3 Hemraj and P. W. 4 Rajbeer along with the written admission of the appellant (Ex. P15) I am of the view them the appellant was given option to be searched ill presence of a gazetted officer or a Magistrate and when he himself volunteered for search being made by P. W. 4 Rajbeer S. I. , he made the search. Thus 1 find that provision of S. 50 of the N. D. P. S. Act was complied with. ( 12 ) THERE is consistent evidence of the prosecution witnesses that the attache was in possession of the appellant and in fact the same was opened by the key handed over by him. Thus the attache from which the opium was recovered, was that of the appellant. ( 12 ) THERE is consistent evidence of the prosecution witnesses that the attache was in possession of the appellant and in fact the same was opened by the key handed over by him. Thus the attache from which the opium was recovered, was that of the appellant. The samples of opium were taken after following the required procedure and the report of Forensic Science Laboratory Sagar indicates the same to be opium. Thus the prosecution has proved beyond reasonable doubt that the opium was recovered from possession of the appellant. The prosecution has further been able to prove that mandatory provision of 5. 50 of the N. D. P. S. Act was also followed. ( 13 ) FOR the reasons stated above, I do not find any merit in the appeal which is dismissed. Conviction of the appellant under S. 8/18 of the. N. D. P. S. Act and sentence thereunder are maintained. Appeal dismissed. .