JUDGMENT 1. - The appellant was the accused in Sessions Case No. 751 of 1994 on the file of the learned Special Judge, NDPS Cases and Additional Sessions Judge No. 1, Kota. He was found guilty under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act), convicted thereunder and sentenced to 10 years rigorous imprisonment and fine of Rs. 1,00,000/- (in default of payment of fine to further undergo two years R.I.). 2. Aggrieved by the conviction and sentence the action for filing the instant appeal has been resorted to. I have considered rival contentions and scanned the record. 3. On the fateful day of July 3, 1994 at about 1.30 p.m. the accused- appellant (in short the accused) was arrested under Section 8/21 of the Act. The allegation was that he was in illegal possession of 4 gms. and 910 milligrams of smack. Charge sheet was filed against the accused. The accused denied the charge and claimed trial. Prosecution examined as many as eight witnesses. In the statement recorded under Section 313, Criminal Procedure Code the accused stated that he was falsely implicated by the police personals. He was motor cycle mechanic. When he refused to impart honorary service in connection with the repair of Motor Cycles of police personals, he was framed and the smack was planted on him by the police. 4. Before proceeding further following undisputed facts need be noticed : (a) Search was not effected in the presence of independent witnesses. P. W. 1-Radha Kishan states that he made attempt to search the independent witnesses but could not find. "xx xx xx" (b) The place where the accused was searched and arrested in the afternoon of July 3, 1994 was a busy thoroughfare. P.W..5 Mahendra Singh Constable states in his cross examination that "xx xx xx" (c) Accused was searched by S.H.O. Rajendra Ozha (P.W. 8) in the presence of Satish Khurana C.O. (P.W. 6). The accused was informed that if he so wished he could be searched in the presence of Gazetted Officer or Magistrate but the accused agreed to be searched in the presence of Satish Khurana, who himself reached at the spot in being informed by Rajendra Ozha. d) Site plan of the occurrence was not prepared. 5. The accused was informed that if he so wished he could be searched in the presence of Gazetted Officer or Magistrate but the accused agreed to be searched in the presence of Satish Khurana, who himself reached at the spot in being informed by Rajendra Ozha. d) Site plan of the occurrence was not prepared. 5. Drug Control Legislation has, as it primary aim, the protection of public welfare by preserving health and eliminating undesirable social and moral effects commonly associated with the indiscriminate use of narcotic drugs and psychotropic substances. Use of such drugs and substances cripples intellects, dwarfs bodies, paralyses the progress of a substantial segment of our society and frequently makes hopeless and sometimes violent and murderous criminals of persons of all ages who become its victims. Such consequences call for the most vigorous laws to suppress the drug abuse. The plain and apparent object of the Act is to prevent by a rigid control of the possession of the narcotic drugs and psychotropic substances, the danger of public health, and to guard society against the social evils which an uncontrolled traffic in drugs is bound to generate. 6. But with a view to achieve the object of the Act interest of innocent citizen has to be protected from illegal or irregular invasions of his liberties by the Authorities. The interest of the State cannot be magnified by the Authorities by vanishing the safeguards provided in the Act for the protection of citizen and by adopting irregular methods. 7. Provisions contained in Section 50 of the Act enjoin upon the officer, who is about to search any person under Sections 41 to 43 of the Act, if such person so requires, to take such person without unnecessary delay to the nearest specified Gazetted Officer or the Magistrate. The object of making it peremptory on the part of the officer to take the person, if he so requires, before a specified Gazetted Officer or a Magistrate is to ensure that the officer who is changed with the duty of conducting search, conduct it properly and do no harm or wrong, such as planting of offending drugs by any interested parties and prevent fabrication of any false evidence. The provision is intended to protect and safeguard the interest of an innocent person. The expression "if such person so requires" implies a right in and choice of the citizen. The provision is intended to protect and safeguard the interest of an innocent person. The expression "if such person so requires" implies a right in and choice of the citizen. Unless the person has the knowledge of his said right and choice, the question of the exercise thereof cannot arise. 8. In the case on hand the accused was apprehended from a busy area in the afternoon. The accused was informed of his right and choice but he volunteered to be searched in the presence of Satish Khurana C.O. No public witness was present at the time of search and the explanation given was that attempt was made to search independent witness but they could not be found. 9. Delhi High Court had occasion to deal with in a similar situation. In Ratan Lal v. State 1987 (2) Crimes 29 (Delhi) , the accused was apprehended from a busy commercial area at 4.15 p.m. from his search 4 grammes of heroin was recovered. No independent witness was present at the time of search and the explanation given was that public persons were requested but they declined to co-operate. While setting aside the conviction the learned Single Judge observed : "In view of the nature of punishment provided for the offence under the Narcotic Drugs And Psychotropic Substances Act the legislature has deliberately made certain provisions to afford safeguards so that innocent persons are not harassed. If the investigation agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. In the case in hand the seizure and the arrest have been made under Section 43 of the Narcotic Drugs And Psychotropic Substances Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by Sub-section (4) of Section 100, Criminal Procedure Code The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by Sub-section (4) of Section 100, Criminal Procedure Code The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause inspite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 Indian Penal Code and this has been clearly spelt out in Sub-section (8) of Section 100, Criminal Procedure Code In the present case there is a vague explanation that the public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguard." 10. When prosecution comes with a case that accused did not exercise option of being searched in the presence of Gazetted Officer or Magistrate but volunteered to be searched by the police officer, then the search must be conducted in the presence of independent witnesses unless it was unreasonable and impracticable to procure the presence of such witnesses. The investigating agency cannot be permitted to make casual statement that witnesses were not available or they declined to cooperate. 11. Section 51 of the Act makes applicable the provisions of the Code of Criminal Procedure, 1973, insofar as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act. The expression "insofar as they are not inconsistent with the provisions of this Act" clearly indicates that wherever provisions have been made in the Act with respect to such matters, recourse cannot be had to the provisions of the Code of Criminal Procedure. It may be noted the specific provisions have been enacted in Section 41 of the Act to deal with the circumstances in which, warrants or authorisation for arrest, search or seizure can be issued. It may be noted the specific provisions have been enacted in Section 41 of the Act to deal with the circumstances in which, warrants or authorisation for arrest, search or seizure can be issued. Section 42 lays down the circumstances in which an officer may conduct search of a building, conveyance or an enclosed place without warrant or authorisation. Section 49 makes provisions to stop and search any animal or conveyance. Section 50 specifies condition under which search of person shall be conducted. If such person requires he shall be taken to the nearest Gazetted Officer or Magistrate but if he does not require to be searched before the Gazetted Officer or Magistrate and volunteered to he searched by the police officer, then how the search shall be made by the police officer, the procedure has not been prescribed in the Act. Therefore, where the person did not exercise his option and volunteers to be searched by the police officer the provisions of Section 100, Criminal Procedure Code shall be made applicable by virtue of Section 51 of the Act. (Emphasis supplied) 12. Sub-section (4) of Sect ion 100, Criminal Procedure Code provides thus : "4. Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality, if no such inhabitant of the said locality is available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to do." Sub-section (8) of Section, 100, Cr.P. C. provides that, any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, where called upon to do so by an,order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code. 13. As already stated the accused was nabbed in a busy area as per the statement of witness Mahendra Singh Constable (P.W. 5) but another Constable Radha Kishan (P.W. 1) stated that he attempted to make search of independent witness but found none. I am not prepared to believe that in the afternoon no witness was present in a busy area. As already stated the accused was nabbed in a busy area as per the statement of witness Mahendra Singh Constable (P.W. 5) but another Constable Radha Kishan (P.W. 1) stated that he attempted to make search of independent witness but found none. I am not prepared to believe that in the afternoon no witness was present in a busy area. Calling of independent witness of the locality for witnessing the search was not an idle formality. The provisions made in Section 100(4), Criminal Procedure Code is a salutary safeguard to ensure the sanctity of the search conducted by the police officers. The mere statement by the Investigating Officers, that he tried to associate some respectables of the locality but none was available cannot suffice as a convenient by pass to the said provision. Mahendra Singh Constable (P.W. 5) categorically stated in his cross examination that C.I. did not stop the persons from the place of incident which was a busy area. This shows that witnesses were available but they were not associated with the search. All this leads me to the conclusion that the recovery of smack, as alleged, is not free from doubt. 14. There is yet another deliberate attempt to defeat the legislative safeguard. The words "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" used in Subsection (1) and the words "the Gazetted Officer or Magistrate before whom any such person is brought used in Sub- section (3) of Section 50 of the Act are of much significance. The words "take and brought" imply that search should be conducted by taking the person before Gazetted Officer or a Magistrate and the said officer or,Magistrate before whom the person is brought, shall, if he sees no reasonable ground for search, discharge the person but otherwise shall direct that search be made. But it appears in the case on hand that the investigating agency for its convenience has redrafted the salutary provisions of Section 50 of the Act by taking the Gazetted Officer Satish Khurana C.O. (P.W. 6) to the accused. When Satish Khurana was brought before the accused, the accused volunteered that he may be searched before Satish Khurana. It cannot therefore, be said that Satish Khurana was totally independent. When Satish Khurana was brought before the accused, the accused volunteered that he may be searched before Satish Khurana. It cannot therefore, be said that Satish Khurana was totally independent. Being a member of raid party he was having some interest in the success of raid. (Emphasis supplied) 15. Learned Single Judge of the M.P. High Court in Babu Lal and Others v. U.O.I 1996 Cr.L.J 1864, also indicated that, "Taking a Gazetted Officer with the raiding party in clever trick which seems to be used by raiding party for the purpose of showing that raiding party wanted to do necessary compliance in respect of provision of Narcotic Drugs And Psychotropic Substances Act, at the same time foiling such an important right of the accused available to him under the provisions of Section 50 of the Narcotic Drugs And Psychotropic Substances Act".In the case of State of Punjab v. Balbir Singh AIR 1994 Supreme Court 1872, it was held that provisions contained in Section 50 of the Act are mandatory and the non-compliance of the said provisions will vitiate the trial of the accused. 16. In view of the discussions made herein above I hold there was deliberate attempt on the part of investigating agency to defeat the legislative safeguard provided in section 50 of the Act. Therefore, Lingering doubt does arise regarding genuineness of the recovery of smack from the possession of the accused. 17. Resultantly, the appeal stands allowed. The judgment dated January 8, 1996 of the learned Special Judge NDPS Cases and Additional Sessions Judge No. 1, Kota is set aside and the accused- appellant shall stand acquitted from the charge under Section 8/21 of the Narcotic Drugs And Psychotropic Substances Act, 1985. The accused-appellant shall be released forthwith if not required in any other case. The record of the case be sent back.Appeal allowed. *******