JUDGMENT 1. - The instant appeal has been preferred by the appellant convict Nasir Hussain (in Jail) impugning the judgment of conviction and sentence dated November 25, 1995 passed by the learned Special Judge Narcotic Drugs And Psychotropic Substances Act Cases-cum-Additional Sessions Judge Kota (for short the trial court) in Special Sessions Case No. 78 of 1994, thereby convicting the appellant under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentencing him to suffer rigorous imprisonment for ten years simple imprisonment for one year (sic ?). 2. Backgrounds facts leading to trial of the appellant as portrayed by the prosecution are that on January 5, 1994 when Bus No. RJ 14/1411 was intercepted by the preventive force, the appellant was found sitting on Seat No. 21 with a Ragzine Air Bag of blue colour. On being interrogated by Inspector Banwari Lal, the appellant disclosed his identity and claimed the bag of his own. The appellant was got down from the Bus and was informed about his right to be searched in the presence of a Magistrate or a Gazetted Officer but he volunteered to be searched by Inspector Banwari Lal in the presence of the District Opium Officer. On being so searched opium weighing 4.250 Kilograms was found from the bag possessed by the appellant. The samples each containing 24 gms. contraband opium were taken and sealed in the presence of Motbirs. Necessary documents were drawn and the appellant was arrested. After completion of investigation challan was filed against the appellant. Charges under Sections 8/18 of the Act framed against the appellant were denied by him and trial was claimed. The prosecution examined as many as 10 witnesses, thereafter statement of the appellant under section 313 Criminal Procedure Code was recorded and the learned trial court after hearing the parties convicted the appellant as indicated herein above. 3. Mr. Sital Das, learned counsel appearing for the appellant vehemently canvassed that the mandatory provisions contained in section 42, 50 and 55 of the Act have been flouted by the prosecution. No option was given to the appellant to be searched in the presence of the Magistrate or Gazetted Officer. 3. Mr. Sital Das, learned counsel appearing for the appellant vehemently canvassed that the mandatory provisions contained in section 42, 50 and 55 of the Act have been flouted by the prosecution. No option was given to the appellant to be searched in the presence of the Magistrate or Gazetted Officer. Fact in respect of option was not recorded in the FIR or seizure memo and mere oral evidence that option was given is not acceptable and it will be taken to be a case of non-compliance of making requirement of section 50 of the Act. Test memos which were sent to FSL were prepared on the next day at office and not on the date of occurrence and provisions contained in section 55 of the Act were flouted. Reliance was placed on various authorities which I shall discuss later. 4. Mr. M. Rafiq, learned counsel appearing for UOI on the other hand contended that it was not a case of 'search of a person'. The opium was recovered from a 'bag' and provisions of section 50 of the Act are not attracted. Notwithstanding the option was given to the appellant and he volunteered to be searched by Inspector Banwari Lal in the presence of District Opium Officer. Provisions of sections 42 and 55 have also been complied with and the appellant was rightly convicted. 5. In the light of arguments advanced before me, I scanned the material on record and carefully perused the authorities cited before me. 6. Following facts are revealed on examination of record:- A. In the seizure memo (Ex.P.1) it has only been mentioned that Nasir Hussain was found sitting on seat No. 21 in a suspicious condition. He was got down from the Bus and his bag was searched by Inspector Banwari Lal in the presence of Amar Singh, the District Opium Officer Bhawani Mandi. It has not been stated in the seizure memo that option to be searched in the presence of a Magistrate or Gazetted Officer was given to Nasir Hussain. B. The First Information Report (Ex.P/2) is also verbatim reproduction of the seizure memo (Ex.P/1) and nothing in respect of 'option' has been recorded in it. It has not been stated in the seizure memo that option to be searched in the presence of a Magistrate or Gazetted Officer was given to Nasir Hussain. B. The First Information Report (Ex.P/2) is also verbatim reproduction of the seizure memo (Ex.P/1) and nothing in respect of 'option' has been recorded in it. C. Prosecution witnesses Banwari Lal (PW.2), Vidha Ram (PW.4), Nathu Lal Sharma (PW.5) Radhey Shyam Upadhayay (PW.8) and Amar Singh Yadav (PW.10) orally deposed that the appellant was asked whether he wanted to be searched in the presence of Magistrate or Gazetted Officer, but he volunteered to be searched by Inspector Banwari Lal. D. The independent witnesses Hazari Lal (PW. 1) and Prem Prakash Goya] (PW.7) did not support prosecution case. 7. Now I shall proceed to consider whether search of a hand bag possessed by a person can be termed as 'search of a person' as provided in section 50 of the Act. 8. In Namdi Francis vs. U.O.I. (I (1997) CCR 27(SC) their Lordships of the Supreme Court in para 3 of the judgment propounded thus:- "We must hasten to clarify that if that person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with section 50 of the Act. 9. In Ali Mustafa vs. State of Kerala ( AIR 1995 SC 244 ) the accused was found sitting with a bag from which three big packets of charas were seized. It was held that on account of non-compliance of section 50 of the Act, the conviction cannot be sustained. 10. Madhya Pradesh High Court in Japani Sethi vs. State of M.P. (EFR 1998 (1) page 88) indicated in para 10 of the judgment as under:- "It would be misinterpretation of section 50(1) of the Act to construe it in such a narrow and legalistic manner. The search of the person must include search of his belongings.... However, this court confines its view to question that arises in the case and holds that the words of section 50(1) of the Act complying search of a person are wide enough to cover a search made from the bag of accused carried by him." 11. The search of the person must include search of his belongings.... However, this court confines its view to question that arises in the case and holds that the words of section 50(1) of the Act complying search of a person are wide enough to cover a search made from the bag of accused carried by him." 11. In Japani Sethi vs. State of M.P. (supra) Madhya Pradesh High Court placed reliance on Ali Mustafa vs. State of Kerala ( AIR 1995 SC 244 ) and did not follow the view expressed by Division Bench of Bombay High Court in (4) Ramji Duda Makwana's case (1994 Cr.L.J. 1987). This Court in Rajmal vs. State (S.B.Cr. Appeal No. 60 A of 1995 decided on 1.7.1998) followed the view indicated by Division Bench of Bombay High Court in Ramji Duda's case (supra) and observed that search of a person did not include search of his bag. While adjudicating Raj Mal's case (supra), observations of the Apex Court, made in Nandi Francis's case vs. U.O.I. (supra) and Ali Mustaffa's case (supra) were not brought to the notice of this court. 12. Thus following the binding observation of the Apex Court made in Nandi Francis case (supra) and Ali Mustffa's case (supra), I hold that the words of section 50(1) of the Act indicating 'search of a person' are wide enough to include a search made from the belongings of the accused carried by him. 13. In view of the discussion made herein above, I am unable to accept the contention raised by Mr. M. Rafiq learned counsel for the Union of India that provisions of section 50 of the Act are not attracted in the facts of this case. It was necessary for the prosecution to give option to the appellant as provided in section 50 of the Act even if search of the bag possessed by the appellant was to be carried out. 14. In T.P. Razak vs. State of Kerala (E.F.R. (1996) (2) SC. It was necessary for the prosecution to give option to the appellant as provided in section 50 of the Act even if search of the bag possessed by the appellant was to be carried out. 14. In T.P. Razak vs. State of Kerala (E.F.R. (1996) (2) SC. 80) their Lordships of the Supreme Court observed thus - (Para 7) "Having regard to the fact that the FIR and seizure Mahazar do not mention about the appellant having been asked before the search was conducted as to whether he would like to be produced before a Gazetted Officer or a Magistrate and the further fact that PW.1, the other independent witness; also do not state about this. We are of the view that the prosecution has failed to establish that there was compliance with the provisions of section 50 of the Act before conducting the search of the appellant." 15. In the instant case, as already indicated, it has not been mentioned in the seizure memo (Ex.P.1) and the FIR (Ex.P.2) that the appellant was asked before the search was conducted as to whether he wanted to be searched in the presence of a Magistrate or a Gazetted officer. The independent witness Hazari Lal Driver (PW.1) and Prem Prakash Goya] conductor (PW.7) did not support the prosecution case and they were declared hostile. Under these circumstances the oral testimony of Banwari Lal (PW.2), Vidha Ram (PW.4) Nathu La Sharma (PW.5) Radhey Shyam Upadhyay (PW.8) and Amar Singh Yadav (PW.10) cannot be relied upon. 16. Though a number of arguments were advanced by Mr. Sital Das, learned counsel or the appellant, I need not detain myself to deal with all these contentions as in my opinion there is force in the main argument of the learned counsel that on account of non-compliance with the provisions of section 50 of the Act which is held mandatory by the Apex Court in State of Punjab vs. Balbir Singh (1994) 3 SCC 299 ) , the conviction and sentence of the appellant can not be sustained. 17. In view of the law laid down in Balbir Singh's case (supra) I hold that there has been violation of the provisions of section 50 of the Act in the instant case and resultantly the impugned judgment of conviction and sentence of the appellant deserves to be set aside. 18. 17. In view of the law laid down in Balbir Singh's case (supra) I hold that there has been violation of the provisions of section 50 of the Act in the instant case and resultantly the impugned judgment of conviction and sentence of the appellant deserves to be set aside. 18. I therefore allow this appeal and set aside the conviction and sentence of the appellant. He is directed to be set at liberty forthwith unless required in any other case.Appeal Allowed. *******