JUDGMENT 1. - Appellant has submitted this appeal impugning the judgment dated January 10, 1995 of the learned Special Judge NDPS Cases cum Additional Sessions Judge No. 2 Kota (for short the trial court) whereby the appellant was convicted under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.1 lac in default to further undergo simple imprisonment for one year. 2. The case of prosecution is that on August 19, 1993 the Narcotic Prevention Party of Kota headed by Inspector Satyaveer Singh stopped and searched Bus No. RJ 14 P 3159 while the same was passing in front of Khanna Krishi Farm on Kota Bundi Road. The appellant was found occupying seat No. 42 in the bus holding a ragzine bag on his lap. He showed signs of nervousness which aroused suspicion and consequently the bag was searched by the Prevention Party. The search allegedly revealed presence of opium weighing 3.250 gms. Seizure memo was drawn, appellant was arrested and on completion of investigation the appellant was put up for trial. Charge under section 8/ i 8 of the Act was framed to which the appellant pleaded not guilty and claimed trial. The prosecution examined as many as nine witnesses. In his explanation under Section 313 Cr.RC. the appellant denied the allegations appearing in the prosecution witnesses. However no witness in defence was examined. The learned trial court after hearing arguments convicted and sentenced the appellants as indicated here in above. 3. Mr V.R. Bajwa, learned counsel appearing for the appellant made scathing attack on the sustainability of the prosecution against the appellant by stating that inasmuch as the provisions of the NDPS Act are so stringent in punishing ruthlessly the offenders in inflicting imprisonment up to a minimum period of ten years and a fine of Rs. 1 lakh, the Parliament made certain procedural safeguards to ensure the liberty of citizens accused of such offences by incorporation of certain mandatory provisions, non-compliance of which will have the effect of throwing lock, stock and barrel the case of the prosecution by rendering a verdict of acquittal. He amplified this submission that, in so far as the case on hand is concerned, the version set out by the prosecution is exfacie highly unnatural. He amplified this submission that, in so far as the case on hand is concerned, the version set out by the prosecution is exfacie highly unnatural. Normally no passenger during journey in bus keeps his luggage in his lap. Such luggage/bag etc. is always placed either under the seat or on the over head shelf. The bus was full of passengers, not even one passenger has been produced by the prosecution to prove the seizure of opium from the possession of the appellant. The appellant was denied the valuable right of being searched in the presence of a Gazetted Officer or the Magistrate. The Narcotic Prevention Party took the false plea that the appellant had offered to be searched by the narcotic people. The mandatory provisions of section 50 and 57 of the Act have been flouted and the same has vitiated the trial. Reliance was placed on Bhanabhai Khalpa Bhai v. The Collector of Customs and Another (1994 (1) Crimes 940) , State of Punjab v. Jasbir Singh and others (1996) 1 Supreme Court Cases 288) and Murli Dhar v. State of Haryana (1990 (3) Recent Criminal Reports 657) . 4. Mr. K.N. Shrimal, learned counsel appearing on behalf of the UOI. repelled the submissions advanced by the learned counsel for the appellant and submitted that the invalidity of a proceeding or illegality of a search or seizure, does not vitiate the prosecution, unless such invalidity or illegality has resulted in causing prejudice to the person accused of the offence. Mr. Shrimal further contended that the confessional statement of the appellant recorded by the officer of the Narcotics Department is admissible in evidence as raiding party consisted of Gazetted Officer. Therefore search conducted in his presence constitutes due compliance with the provisions of section 50 of the Act. If there is intrinsic merit in the evidence of the witness of search the same cannot be rejected solely on the ground that witness is not amongst passengers of the bus. Reliance was placed on Rekha Parameshwari alias Ghanambigal Muthiah v. Assistant Collector of Customs, (1992 Cr.L.J. 901) , Namdi Francis Nwazo v. Narcotics Control Bureau (1995 Cr.L.J. 665) , Ramji Duda Makwana v. The State of Maharashtra (1994 Cr.L.J. 1987) , Ronny @ Ronald James Alwaris etc. v. State of Maharashtra etc. Reliance was placed on Rekha Parameshwari alias Ghanambigal Muthiah v. Assistant Collector of Customs, (1992 Cr.L.J. 901) , Namdi Francis Nwazo v. Narcotics Control Bureau (1995 Cr.L.J. 665) , Ramji Duda Makwana v. The State of Maharashtra (1994 Cr.L.J. 1987) , Ronny @ Ronald James Alwaris etc. v. State of Maharashtra etc. (1998 III Apex Decisions (SC) 32) , Patel Dineshbhai Somabhai and others v. State of Gujarat (II (1994) CCR 1319) , Rajkumar Karwal v. Union of India and another (Cr.L.R. (SC) 1990 page 359) , Alice Norman v. Narcotic Control Bureau Baillard Pier, Bombay (1998 III Apex Decisions (HC) (Bom.) 24 , State of Punjab v. Balbir Singh (Cr.L.R. (SC) 1994 page 241 and State of Himachal Pradesh v. Shri Pirthi Chand and another (AIR 1996 Supreme Court 977) . 5. I have reflected over the rival submissions and carefully scanned the material on record as well as the case law cited before me. A sealed envelop annexed with the record was got opened and a note was prepared and it was sealed. It contains the letter Ex.R/12 and a small packet containing sample of alleged contraband. 6. At the outset, I proceed to discuss the prosecution evidence. PW 1 Satyaveer Singh in his cross examination deposed that he was standing at the gate of the bus whereas Sanjeev Prasad, Kishanchand and Jagdish Prasad conducted the search in the bus. While searching the passengers they reached at seat No. 42 where the appellant was sitting in five ten minutes. He further admitted that seat No. 42 was at a distance of 8 to 10 feet from the gate of the bus. Kishanchand PW 2 deposed in his cross examination that there were 20-25 passengers in the bus. He further stated that the appellant was sitting in such a position that he could very well see the person standing out side the bus. 7. Sanjeev Prasad PW 3 deposed in his cross examination that there was a shelve over the seat No. 42. Harisingh PW 4 who was driving the bus at the relevant time did not support the prosecution case and he was declared hostile. Rajaram Singh Yadav PW 5 in his cross examination stated that the case was handed over to him after registration of the first information report and thereafter he recorded the statement of the appellant in his office. Harisingh PW 4 who was driving the bus at the relevant time did not support the prosecution case and he was declared hostile. Rajaram Singh Yadav PW 5 in his cross examination stated that the case was handed over to him after registration of the first information report and thereafter he recorded the statement of the appellant in his office. Ramashanker Prasad PW 6 deposed in his cross examination that he received the material from Satyaveer Singh but he did not put his seal on the said material. Antar Singh PW 7 is a constable and he has handed over the sample to Neemach. Bajrang Lal PW 8 also deposed in his cross examination that there were 20-25 passengers in the bus and he did not think it proper to make passenger as witness of occurrence. Anwar Ali PW 9 was the conductor of the bus at the relevant time. He did not support the prosecution case and he was declared hostile. 8. I shall first take up arguments in respect of confessional statement of the appellant. Section 67 of the Act reads as under: "67. Power to call for information etc.-Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government, during the course of any enquiry, in connection with the contravention of any provision of this act. (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case." 9. Provisions of Section 67 of the Act are pari materia with the provisions contained in section 108 of the Customs Act. Their Lordships of the Supreme Court in Bhanabhai Khaipa Bhai v. The Collector of Customs and Anr. Provisions of Section 67 of the Act are pari materia with the provisions contained in section 108 of the Customs Act. Their Lordships of the Supreme Court in Bhanabhai Khaipa Bhai v. The Collector of Customs and Anr. (supra) had occasion to deal with the provisions contained in section 108 of the Customs Act In the said case the ratio of Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167 was referred as under: "In the case Veera Ibrahim v. State of Maharashtra , it was examined, as to whether the statement of the accused in that case recorded by the Customs Officer under Section 108 of the Act before any complaint or first information had been lodged against him, can be used against such accused when he was charged for having committed an offence under Section 135(1)(a) of the Act. It was held by their Lordships in Bhaabhai Khaipa Bhai's case (supra) that "on behalf of the appellant, nothing has been brought to our notice to reject his statement under section 108 of the Act, saying that said statement was not voluntary or made under coercion." 10. According to the ratio propounded in the case of Veera Ibrahim (supra) and Bhanabhai Khaipa Bhai (supra), the statement of the appellant recorded under section 67 of the Act can be used against him if it is recorded before first information report had been lodged against him. As already indicated while discussing the statement of Rajaram Singh Yadav PW 5 that he recorded the statement of the accused after registration of the first information report. Shri Rajaram Singh Yadav PW 5 deposed in his cross examination thus- " ;g izdj.k esjs ikl ,Q0vkbZ0vkj0 ntZ gksus ds ckn vk;k FkkA "" eqyfte dk c;ku xokgku ds c;ku ds igys fy;k FkkA tc c;ku fy;k Fkk rc eqyfte esjh dLVMh esa FkkA " Thus in view of the statement of Rajaram Singh Yadav PW 5, the confession of the appellant recorded under Section 6`7 of the Act cannot be read against him. I do not dispute the authority of Rajaram Singh Yadav to record confession statement of the accused appellant but it is of no use as it was recorded after registration of FIR. The case of Raj Kumar Karwal v. Union of India and another (supra) cited by Mr. I do not dispute the authority of Rajaram Singh Yadav to record confession statement of the accused appellant but it is of no use as it was recorded after registration of FIR. The case of Raj Kumar Karwal v. Union of India and another (supra) cited by Mr. K.N Shrimal, learned counsel is distinguishable and is not applicable to the case on hand. 11. So far as the contention in respect of mandatory provisions of section 50 of the Act is concerned, I subscribe my view to the observations made by the Division Bench of Bombay High Court in Ramji Duda Makwaana v. The State of Maharashtra (1994 Cr.L.J. 1987) , and I am of the opinion that the provisions contained in section 50 of the Act applies to the case of body search of the accused. Where the contraband is recovered from the bag in hand of the accused, said provisions do not apply. 12. I am also of the view that if there is intrinsic merit in the evidence of the witness of search the same cannot be rejected solely on the ground that witness is not from the locality of search or that he was brought by the police. But in the facts and circumstances of the case, the version set out by the prosecution is highly unnatural. As already discussed the appellant had occasion to see the Prevention Party from the window of the bus. The person who conducted the search of the bus took five to ten minutes in reaching to seat No. 42 where the accused was sitting. Thus, it cannot be believed that the appellant even after seeing the Prevention Party had kept the bag on his lap. The driver as well as the conductor of the bus do not support the prosecution case and they have been declared hostile. The prosecution did not examine any independent passenger from the bus to support its case. Under these circumstances the prosecution version is highly unnatural and it is difficult to believe that the accused appellant was keeping bag in question on his lap. After scanning the prosecution evidence a doubt creeps in mind in respect of conscious possession of alleged contraband to connect the appellant with the crime. 13. It is not necessary, under these circumstances to discuss all the authorities cited by the learned counsel for the parties. 14. After scanning the prosecution evidence a doubt creeps in mind in respect of conscious possession of alleged contraband to connect the appellant with the crime. 13. It is not necessary, under these circumstances to discuss all the authorities cited by the learned counsel for the parties. 14. The result of the foregoing discussion is that the accused appellant is entitled to benefit of doubt. 15. Consequently, the appeal stands allowed. The conviction and sentence awarded to the accused appellant by the learned trial court stand set-aside and the accused appellant is acquitted from the charge under section 8/18 of the NDPS Act. He is in custody, he shall be released forthwith if not required in any other case. *******