TEJ SHANKAR, J. ( 1 ) THE appellant having been convicted u/s 8/18 of the N. D. P. S. Act and sentenced to a term of 10 years RI. and a fine of Rs. 1 Lac and in default two years RI by the learned Second Additional Sessions Judge, Guna, on 14-7-1993 has preferred these appeals (Appeal No. 147/93 was filed through Counsel whereas Appeal No. 168/93 was presented through jail authorities earlier, but it was registered after the appeal filed through Counsel was presented ). Page 2 of 4 Both these appeals are disposed of by this common judgment. The prosecution story as unfolded from the material on record is that PW 7, SK Dube, was station in charge G. R. P. in September 1990. PW 3, Uber Chand, PW 5, Ashok Dube, were posted as Constable. In the night of 3-9-1990 they were on duty to check the train running between Kotah to Bhopal it used to reach at Guna station at 11. 30 P. M. On that day it reached Guna at 11. 50 P. M. The aforesaid two constables were checking the train and got down at Pagara railway station. When the train was moving from Pagara to Shadhora these two constables saw a person having a bag. They found that he had something heavy in the bag. PW 3, Uber Chand, saw the bag and observed that there was something wet. They went upto Ashoknagar in the same bogie and there they got down from it -along with the accused. It was 1 AM. He had seen the contents of the bag and after getting it opened found that it was about 2 Kg. of opium as it transpired from its perusal and from its smell. Then they gave the bag to the accused and boarded another train i. e. Damohkotah passenger train and brought the accused Kajoditi Lal to Guna. The train reached Guna at 8 AM. They took the accused to the Police Station which was situated at the railway station and met PW 7, S. K. bube. He thereafter called two witnesses Rahiskhan, PW 1, and Dalbhanjan Singh, PW 2, got the bag opened and recovered the opium measuring 2. 50 KG. It was weighed. Two pockets were sealed and the remaining opium was sealed separately. Chits were pasted after obtaining signatures of the witnesses. Panchnama Ex. P-1 was prepared. He thereafter called two witnesses Rahiskhan, PW 1, and Dalbhanjan Singh, PW 2, got the bag opened and recovered the opium measuring 2. 50 KG. It was weighed. Two pockets were sealed and the remaining opium was sealed separately. Chits were pasted after obtaining signatures of the witnesses. Panchnama Ex. P-1 was prepared. An F. I. R Ex. P-4 was lodged by PW 7, SK Dube. An intimation was given to these S. P. Indore the recovered opium was kept in the malkhana. The accused was arrested and arrest memo, P-2 was prepared. The train ticket was also recovered from the accused, Ex. P-6. on 11-9-1990 a sample was sent for examination to Sagar through constable Ramprakash. The expert report is Ex. P-7. It was found that there was 4. 68% morphine and the article was opium. After usual investigation charge sheet was submitted. The learned trial Court recorded statements of witnesses examined by the prosecution. Heard the parties and after considering the entire material held the accused guilty of the offence punishable u/s 8/18 of the N. D. P. S. Act and convicted and sentenced him as aforesaid. Hence this appeal. ( 2 ) THE learned Counsel for the appellant raised on legal submission initially. He urged that compliance of s. 50 of the N. D. P. S. Act has not been made which is mandatory and as it was not done the accused is entitled to acquittal. In support of his contention he relied on several authorities. The learned Counsel also urged that the story set up by the prosecution is also not worthy of credit. ( 3 ) LEARNED Counsel for the State, on the other hand, contended that compliance was made inasmuch as S. K. Dubey clearly stated that he inquired from the accused whether he wanted to be searched before a Gazetted Officer or not. ( 4 ) BEFORE entering into the legal argument relating to non-compliance of s. 50 of the N. D. P. S. Act, it is necessary to make a brief reference to the facts of the case. If we go through the evidence on record we find that the prosecution has tried to make out its case by examining a number of witnesses. The most important witnesses on the basis of which the prosecution story is sought to be established are PW 3. Uber Chand, PW 5. If we go through the evidence on record we find that the prosecution has tried to make out its case by examining a number of witnesses. The most important witnesses on the basis of which the prosecution story is sought to be established are PW 3. Uber Chand, PW 5. Ashok Dube and PW 7, S. K. Dube. Uber Chand and Ashok Dube are two constables who narrated the prosecution story as mentioned above so far as it related to the happening before arrival at the G. R. P. whereas S. K. Dube deposed about the recovered alleged to have been made by him at the Police Station. If we peruse statement or Uber Chand, we find that he deposed that he saw in the train that a person was having a bag and standing in the bogie. He gave out his name as Kajodilal. In the bag there was something head. He further stated that he took him to Ashok Nagar Police Station and they got down. He suspected opium. He got the bag opened and saw it. It appeared to be opium. PW. 5. Ashok Dube, also gave more or less similar statement. But this story by itself does not inspire confidence because in common knowledge a person moves with luggage and it was no wonder that any person was, having bag which might appear to contain heavy article. There is nothing in the statement of these two witnesses to show as to how they suspected opium. What knowledge they had through which they could suspect it to be opium. The statement of both these witnesses, to my mind, does not inspire confidence and if they suspected opium and the bag was opened at Ashoknagar, they could and ought to have taken the accused to the nearest police station or lodged a report at Ashoknagar 8/12/2006 itself. But it was not done and according to them they took him to Guna, at the Police Station. PW 7, S. K. Dubey, in para 2 of his statement, as said above, gave statement with respect to the happenings which took place after two constables brought the accused to him. He has also given an unnatural statement. But it was not done and according to them they took him to Guna, at the Police Station. PW 7, S. K. Dubey, in para 2 of his statement, as said above, gave statement with respect to the happenings which took place after two constables brought the accused to him. He has also given an unnatural statement. Besides these three witnesses two other witnesses, namely, Rahikhan and Dalbhanjan Singh, have been examined to prove the story, Assuming for the sake of argument that the prosecution has been able to prove the fact that there was any recovery though, to my mind, the story appears to be unnatural, in that case too, the evidence on record does not show that essential requirement of law has been fulfilled. ( 5 ) SECTION 50 of the N. D. P. S. Act, 1985, provides for conditions under which search of persons has to be conducted. Section 50 subsection (1) is relevant for our purpose. It reads: (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 of section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. The matter came up for consideration before the Apex Court as to whether this provision is mandatory and what is the effect of its violation in (State of Punjab v. Balbirsingh ). It has been held that: Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate is he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. The Legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. Whensuch is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under section 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search. . . . 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 effect the prosecution case and vitiate the trial. This case has been followed in several other cases by the Apex Court. Thus, it is now settled law that failure to comply with provisions of section 50 x affects the prosecution case and vitiates the trial. ( 6 ) IN the aforesaid background of law we have to see how far this provision has been complied with in the case in hand. PW 7, S. K. Dube, deposed in para 14 of his statement that before taking search he had asked the accused as to whether he wanted to be searched of the Gazetted Officer. But this statement does not find corroboration from any material on record. Rather there is evidence to the effect that it is incorrect. In his cross-examination in the following paragraph he deposed that he did not prepare any Panchnama to show that he had made an enquiry from the accused whether he desired to be searched before a Gazetted Officer. He also did not make an entry in the case diary. Thus, it appears to be an afterthought. In his cross-examination in the following paragraph he deposed that he did not prepare any Panchnama to show that he had made an enquiry from the accused whether he desired to be searched before a Gazetted Officer. He also did not make an entry in the case diary. Thus, it appears to be an afterthought. If we peruse the statement of PW 1, Rahiskhan, we find that he had specifically stated in his cross examination that Thanedar or Dewan did not Say to the accused as to whether he wanted to be taken to some Gazetted Officer or a Magistrate for search. Similar statement has been given by PW 2, Dalbhanjansingh, in his cross examination. Thus, the statement of SK Dube cannot be believed even for a moment. It is, therefore, established that compliance of section 50 of the ND. P. S. Act was not done. In view of the law laid down by the Apex Court mentioned above, it affects the prosecution case and vitiates the trial. An argument was advanced before the trial Court as well and the learned trial Court has tried 10 draw a distinction to the effect that search was made not from the accused person but from the bag. No such distinction was made in the aforesaid authority by the Apex Court. I am, therefore, of the view that the learned trial court did not take the correct view of the law. The mal has to be held to be vitiated for non-compliance of mandatory provision of section 50. The accused could not, therefore, be convicted. ( 7 ) THE appeal succeeds. It is accordingly allowed. The order of conviction and sentence passed by the mal Court is set aside. The accused is acquitted. The accused is in jail. He shall be acquitted forthwith and the fine, if paid, shall be refunded. Appeal allowed. .