JUDGMENT 1. - This appeal has been filed Under section 374 Criminal Procedure Code. against the judgment dated 5.2.1996 passed by the special Judge (Sessions Judge), Hanumangarh in Sessions Case No. (69/92) 181/94 thereby convicting the accused-appellant Under section 8/15, Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act") and sentencing him with ten years' rigorous imprisonment and a fine of Rs. 1 lakh and, in default of payment, to further undergo one year's rigorous imprisonment. Briefly stated the prosecution case is that PW 6 Shayar Singh, S.H.O., of Police Station, Tibi, received a secret information on 23.2.1992 at 4.00 p.m., at the police out post, Surewala that a person named Dara Singh was going from the village bus stand towards the Indira Gandhi Canal, who had dried capsules of poppy (poppy husk) in his possession. Shayar Singh immediately summoned PW 2 Bahadur Khan and PW 3 Arjun Singh as Motbirs and, accompanied by PW 1 Rajendra Saharan etc., immediately left towards the Canal, in a Government vehicle. On reaching at the tri-juncture ("T' point) from where road for the village `Naiwala' bifurcates, he found the accused appellant going ahead and, on being approached, he was apprehended. The accused-appellant holding a bag of Khaki colour in his hand and, on enquiry, he disclosed his name and, full identity. Since, Shayar Singh suspected the accused-appellant to be in possession of poppy husk illegally, he searched the bag found in possession of the accused-appellant, in presence of the Motbirs. He found poppy husk weighing 10 kgs. in the bag for which the accused-appellant, admittedly, did not have any licence or permit for its possession or consumption. A sample weighing 500 gms. was taken separately. Thus the poppy husk weighing 9.500 kgs. and 500 gms. were packed and sealed on spot. Ex. P/1 search, seizure and arrest memo was prepared at the site and were brought to the Police Station Tibi whereat Shayar Singh registered Ex. P/9 FIR Under section 8/15, NDPS Act and started investigation. The sample of poppy husk was sent to the R.F.S.L., Jaipur, for chemical examination, and as a result of its examination vide Ex. P/12, the sample was confirmed to be of dried crushed capsules of poppy husk. P/9 FIR Under section 8/15, NDPS Act and started investigation. The sample of poppy husk was sent to the R.F.S.L., Jaipur, for chemical examination, and as a result of its examination vide Ex. P/12, the sample was confirmed to be of dried crushed capsules of poppy husk. After completion of investigation, the accused was challaned in the Court of Additional Munsif and Magistrate No. 1, Hanumangarh who, in turn, committed him to the special Court (Court of Sessions) Hanumangarh, who completed the trial. 2. The accused-appellant on being charged with the commission of the said offence, pleaded not guilty to the same and claimed to be tried and hence the trial was completed, resulting in conviction and sentencing of the accused-appellant as above and hence this appeal. 3. I have heard the learned counsel for the accused-appellant as well as the learned Public Prosecutor, considered the impugned judgment and the case record carefully. 4. The learned counsel for the appellant has vehemently argued that PW 6 Shayar Singh and PW 1 Rajendra Saharan are the police witnesses and PW 2 Bahadur Khan and PW 3 Arjun Singh Motbirs, who were summoned by Shayar Singh, have not supported the factum of recovery of the alleged poppy husk. There is no other independent witness who could support the prosecution story. Both Shayar Singh as well as Rajendra Saharan, later being the subordinate of the former, are evidently interested in successful culmination of the prosecution case, and therefore, they are interested and partisan witnesses. They have made improvement over Ex. P/1 wherein it is clearly omitted that the accused-appellant was given any opportunity to exercise his option to be taken to either any Magistrate or a Gazetted Officer to be searched in his presence, if he so desired, and subsequent thereto, finding that a legal lacunae had been left out, an improvement has been falsely made, while under examination in the Court, that the accused-appellant was given such an option but he volunteered to be searched by PW 6 Shayar Singh and he took his search accordingly. Besides, admittedly, when Shayar Singh received an information through a secret source, finding the same reliable, it was incumbent upon him to have recorded such information immediately as envisaged by sub-section (1) of Section 42 of the Act, but Shayar Singh failed to do so, and, consequently, he also failed to comply with the provisions of sub-section (2) of the said Section 42 as well. Besides, admittedly, PW 6 Shayar Singh did not comply with the provisions of Section 57 of the Act. Therefore, Shayar Singh having defined the legal provisions of Sections 42, 50 & 57, the alleged search, seizure and arrest were illegal and void ab initio and the learned trial Judge, while relying upon the bald ocular testimony of PW 6 Shayar Singh and PW 1 Rajendra Saharan, committed a factual as well as legal error in passing a verdict of guilt against the accused. 5. The learned Public Prosecutor has tried her best to support correctness of the impugned judgement. 6. Firstly, as regards the prosecution evidence, PW 6 Shayar Singh has clearly stated that he reached the police out post of Surewala on 23.2.1992 at 4.00 p.m. He immediately received an information to the effect that accused-appellant was going towards the said Canal who was illegally in possession of poppy husk and, thereafter, he procured services of PW 2 Bahadur Khan and PW 3 Arjun Singh, as Motbirs, and accompanied by PW 1 Rajendra Saharan etc., as is also supported by Rajendra Saharan, PW 2 Bahadur Khan and PW 3 Arjun Singh, and other members of the staff, he left in a Government vehicle towards the tri-juncture of village `Naiwala'. On reaching above the tri-juncture (`T' point), he found the accused-appellant along with the bag, and on searching his bag, poppy husk weighing 10 kgs. was found in the bag. The accused-appellant did not have any licence or permit for its possession. 7. PW 1 Rajendra Saharan also lends corroboration to the above statement of Shayar Singh. 8. As regards the testimony of PW 2 Bahadur Khan and PW 3 Arjun Singh, both of them have denied that they were either taken in the Government vehicle to the above place of recovery or any such search, seizure and arrest was made in their presence. They have only admitted that the police secured their thumb marks on Ex. 8. As regards the testimony of PW 2 Bahadur Khan and PW 3 Arjun Singh, both of them have denied that they were either taken in the Government vehicle to the above place of recovery or any such search, seizure and arrest was made in their presence. They have only admitted that the police secured their thumb marks on Ex. P/1 and they did not know about the correctness of the contents thereof. Both were got to be declared hostile to the prosecution and were subjected to cross-examination by the learned P.P. but it was all of no avail. Thus, both the Motbirs, who were the exclusive choice and selection of the S.H.O. Shayar Singh, have not supported. Thus, to support his version, there is no independent and reliable evidence. Both these witnesses do not support the prosecution story that PW 6 Shayar Singh had ever asked the accused-appellant that he was at liberty, if he so desired, to be taken to and produced before a Magistrate or a Gazetted Officer for his search being conducted in his presence. There is absolute omission in Ex. P/1 that PW 6 Shayar Singh that he, before taking search of the accused, in compliance of the conditions laid down Under section 50 of the Act, informed the accused that in case he so required, he could be taken without unnecessary delay to the nearer Gazetted Officer or to the nearest Magistrate and that accused refused to exercise such option and instead asked Shayar Singh himself to take search of his bag. Accordingly, there is no mention of the fact of compliance of the above condition of Section 50 of the Act in Ex. P/9 FIR also registered by PW 6 Shayar Singh himself. On the contrary, PW 6 Shayar Singh and PW 1 Rajendra Saharan have falsely stated in their sworn statements that they had in compliance of the said condition of Section 50 of the Act, required the accused-appellant whether he wanted to be searched in presence of any Gazetted Officer or a nearest Magistrate but he did not want so and instead opted to be searched by Shayar Singh himself. Since PW 2 Bahadur Khan and PW 3 Arjun Singh, whose interestedness in the accused is not apparent, have not toed the improved versions of both the officers and, without any rhyme or reason, who failed to mention this fact in Ex. P/1 and subsequent Ex. P/9 registered thereon, it leads to the irresistible conclusion that PW 6 Shayar Singh never complied with the mandatory conditions of Section 50 of the Act, and therefore, the search, seizure and arrest vide Ex. P/1, alleged to be made, was illegal and void ab initio. The Hon'ble Apex Court in State of Punjab v. Balbir Singh, 1994 Cr.L.R. (SC) 241 while interpreting the real object, purpose and intent of the Section 50 of the Act, has held that, whenever, on prior information, the empowered or authorised officer while acting Under section 41(2) or Section 42 of the Act should comply with the provisions of Section 50 before the search of the person is made and as such the person should be informed that if he desired shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It was further held that it is obligatory on the part of the such officer to inform the person to be searched that if such person so required he would be taken before such Gazetted Officer or a Magistrate and 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. Presently, in the facts and circumstances discussed above, PW 6 Shayar Singh clearly appears to have failed to comply with the provisions of the said Section 50 of the Act and, therefore, whatever proceedings he had conducted vide Ex. P/1 and subsequent thereto on the basis of Ex. P/1 culminating into charge sheet and consequential prosecution of the accused for the aforesaid offence, is vitiated as such being illegal and void. 9. However, as regards the contention of the learned counsel for the appellant that there is a contravention of the provisions of the sub-section (1) of Section 42 of the Act, this is not sustainable being bereft of total merit. The provisions of Sections 42 & 43 are not similar. 9. However, as regards the contention of the learned counsel for the appellant that there is a contravention of the provisions of the sub-section (1) of Section 42 of the Act, this is not sustainable being bereft of total merit. The provisions of Sections 42 & 43 are not similar. They might appear similar but there is marked difference between these provisions since Section 42 of the Act applies to the entry, search and seizure made into any building, conveyance or place whereas Section 43 of the Act covers those cases where recovery is made from the person of a person in a public place which is clearly defined in explanation appended to Section 43 itself. Therefore, when any contraband article is recovered from the possession of a person of the accused in a public place, the proceedings shall necessarily be Under section 43, NDPS Act and not under the provisions of Section 42 of the Act. So Section 42 of the Act has never application where there is no question of entry into and search of any building, conveyance or place. In the case in hand, since neither any building nor any conveyance nor place, as mentioned in Clause (a) of sub-section (1) of Section 42 of the Act was subjected to any search for the purposes as those enumerated in Clauses (b), (c) & (d) of sub-section (1) of Section 42 of the Act, the provisions of Section 42 were inapplicable so far as the personal search of the appellant is concerned. The accused-appellant was in transit while travelling in a public conveyance and when he was interrupted, apprehended, searched and seizure was made as alleged. Thus, when a search and seizure and consequential arrest were made from a public place as explained above then the provisions of Section 43 alone applied and not of Section 42 of the Act. 10. On base reading of the language of Section 43 of the Act shows that recording of information or grounds of belief as required by sub-section (1) of Section 42 is not warranted. Hence the consequences of sub-section (2) of Section 42 would not come into operation in this case. All objections in respect of the same are unsustainable. 11. Besides, admittedly, PW 6 Shayar Singh, in compliance of the provisions of Section 57 of the Act, after making seizure and arrest vide Ex. Hence the consequences of sub-section (2) of Section 42 would not come into operation in this case. All objections in respect of the same are unsustainable. 11. Besides, admittedly, PW 6 Shayar Singh, in compliance of the provisions of Section 57 of the Act, after making seizure and arrest vide Ex. P/1, did not make full report of all particulars of the seizure and arrest to his immediate superior official. Thus, he also wilfully violated the provisions of Section 57 of the Act. Though, non-compliance of this Section by itself does not vitiate the seizure and arrest and consequential trial but having regard to the facts and circumstances discussed above, it leads to the only conclusion that PW 6 Shayar Singh and PW 1 Rajendra Saharan are not witnesses of truth and they have falsely resorted to subsequent improvements to fill up the lacunae left out by them before they proceeded against the accused-appellant. They wilfully disobeyed the legal provisions, as above. In this view of the matter, presence of PW 2 Bahadur Khan and PW 3 Arjun Singh at the time of alleged search and seizure and arrest of the accused-appellant vide Ex. P/1, also becomes wholly doubtful. In this view of the matter, since both the police officers are apparently interested in the successful prosecution of the accused-appellant and their testimony does not inspire any confidence and credence and therefore, they are held to be unreliable witnesses. The learned trial Judge failed to appreciate their testimony intrinsically, taking a superficial view of the same, erroneously relying on the same to arrive at the conclusion of guilt of the accused. The conclusion arrived at by the learned trial Court is nothing but an erroneous and perverse and the same warrants reversal of the same. 12. In this view of the conclusion arrived at, since PW 6 Shayar Singh contravened the mandatory legal provisions of Section 50(1), therefore, the whole investigation and consequential trial as well as resultant impugned judgment are rendered ab initio void and illegal. Besides, there is also non-compliance of Section 57 of the Act and the same has apparently prejudiced the appellant in his default. 13. Therefore, this appeal deserves to be accepted. 14. This appeal is accepted and consequently the accused-appellant is acquitted of offence Under section 8/15, NDPS Act thereby setting aside the impugned judgment and order of sentence passed thereunder. Besides, there is also non-compliance of Section 57 of the Act and the same has apparently prejudiced the appellant in his default. 13. Therefore, this appeal deserves to be accepted. 14. This appeal is accepted and consequently the accused-appellant is acquitted of offence Under section 8/15, NDPS Act thereby setting aside the impugned judgment and order of sentence passed thereunder. The accused-appellant, in case he is in custody under going the sentence of imprisonment, is ordered to be set at liberty forthwith, if no longer required in any other case.Appeal Allowed. *******