Judgment R.N.Sahay, J. 1. Appellant has been convicted for an offence under Section 20(b)(i) of the N.D.P.S. Act, 1985 and sentenced to five years imprisonment on the charge that he was found in possession of 15 kg. of contraband Nepali ganja. The bag was being carried on a bicycle by the appellant. He was intercepted on suspicion by S.I. and constables of Excise Bahera Anchal. The occurrence was of 20th January, 1988. Excise officials filed prosecution report under Section 47 (a) of the Bihar Excise Act and the appellant was placed for trial before the Judicial Magistrate. The Judicial Magistrate was of the opinion that the appellant had committed an offence punishable under Section 23 of the N.D.P.S. Act and hence, the case was committed to the Court of Sessions. The Sessions Court framed charge under Sections 20(b)(i) and 23 of the N.D.P.S. Act. The appellant has been acquitted under Section 23 of the Act. The appellant denied recovery of ganja, as alleged by the prosecution. 2. The learned trial Judge has accepted the evidence of Excise officials with regard to recovery of Ganja. In my opinion, there is cogent evidence against the appellant that 15 kg of ganja was being carried on a bicycle and he was arrested by the Excise officials for carrying the ganja. 3. The question for consideration is whether the appellant could be tried under the provision of N.D.P.S. Act. In the present case, there is no compliance of Section 50 of the Act. Section 50 of the Act was not applicable since ganja was not recovered from personal possession of the appellant. 4. As held by the Full Bench of the Bombay High Court in Bhubaneshwar Adebaya v. B.S. Rawat, 1996 Cri LJ 3210, the expression "to search any person" in Section 50 is confined to search of article on the person or body of the person and search of articles in immediate possession such as bag or luggage with him at the time of the search. 5. 5. Delhi High Court in Amarjit Singhs case reported in 1995 Cri LJ 1623, observed as follows: "The words personal search appearing in Section 50 of the Act would, in our view, mean that if accused is in possession of the drug, may be on his body or may be on a particular vehicle in which he is found to be in possession or may be having the contraband in his bags which he may be carrying which he was in physical possession at the relevant time, the provision of Section 50 of the Act have to be complied with if there is prior information with the authorities with regard to possibility of a suspect being in possession of contraband drugs." In para 33 of the judgment, it was further observed : "A care of the view that if a particular suspect or accused is physically present in a conveyance or in a house at the time of the search, in our view, the compliance of mandatory provisions of Section 50 of the Arms Act must be made because the purpose of introducing Section 50 is to ensure that fair investigation is being carried out and recovery being effected remains without any suspicion or doubt. Obviously, if accused in such a situation wants presence of a gazetted officer or a Magistrate before being searched and such a search is carried out in presence of a gazetted officer or a Magistrate and some contraband drug is recovered that would strengthen the prosecution case and there would remain very less suspicion with regard to recovery being effected from a particular accused in such a situation. So, we hold that in the present case there has been non-compliance of the provisions of Section 50 of the Act. The law laid down by the Bombay High Court in this respect is not correct as in the case before the Supreme Court, cited above, the recovery was not effected from any physical body of the accused but was effected from a bag and still it was held by the Supreme Court that mandatory provisions of Section 50 of the Act were applicable. In view of the above discussion, we hold that the appellants deserve to be acquitted by giving them benefit of doubt." 6. In view of the above discussion, we hold that the appellants deserve to be acquitted by giving them benefit of doubt." 6. The Division Bench of Calcutta High Court in the case of Kanhailal Chowhan v. State of West Bengal, 1995 Cri LJ 3283, held as follows: "...Again it has to be noticed that the question of compliance or non-compliance of Section 50, N.D.P.S. Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of person is involved. Search of and recovery from any building, house, room, conveyance or place does not come within the ambit of Section 50 because firstly Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched to the Gazetted Officer or Magistrate for the purpose of search and it is physically impossible to shift or carry any-building, room or immovable place from its position and take it to a Gazetted Officer or Magistrate for such purpose and thirdly, the Supreme Court in interpreting Section 50, N.D.P.S. Act also speaks of search of person only in paragraph 26 (5) of the decision in State of Punjab v. Balbir Singh, 1994 Cri LJ 3702." 7. Full Bench of Bombay High Court dissented from the decision of the Delhi High Court referred to above and held: "...personal search would be confined to clauses (a) and (b) of paragraph 5 under Section 50 but it would not include and cannot be extended to Clauses (c) and (d) of paragraph 5. If the contraband is recovered in a search of a house, building, conveyance or public place, Section 50 will not be attracted." 8. This view of the Bombay High Court finds support form the decision of the Supreme Court reported in State of Punjab v. Balbir Singh, 1995 (1) East Cr C 374 (SC) : AIR 1994 SC 1872 . In the instant case, Section 50 would not be applicable. On this ground, the conviction of appellant cannot be questioned. 9. The next question for consideration is whether the seizure of contraband article by Sub-Inspector of Excise was authorised under Section 42 of NDPS Act. There is no evidence that Excise Sub-Inspector was empowered under Section 42 of the Arms Act or any notification of the State Government to search and seizure. 10. 9. The next question for consideration is whether the seizure of contraband article by Sub-Inspector of Excise was authorised under Section 42 of NDPS Act. There is no evidence that Excise Sub-Inspector was empowered under Section 42 of the Arms Act or any notification of the State Government to search and seizure. 10. Learned counsel for the State submitted that illegal search and seizure would not vitiate the trial. This question has been dealt with in State of Punjab v. Shaminder Singh, 1994 Cr LJ 2483, as follows: "It is further submitted that the irregularity, if any,was curable under Section 465 of the Code of Criminal Procedure, 1973 and the order of acquittal passed by the learned trial Court is not legal order and the same is liable to be set aside. The argument is devoid of any merit. The latest authority of the apex Court in Balbir Singhs case (supra) directly deals with the mandatory provisions of the Act concerning arrest and seizure of Narcotic and Psychotropic Substances whereas the authority in H.N. Rishbus case cited by the learned State counsel relates to an entirely different case under the provisions of Prevention of the two Acts relates to different areas of crime. As such the latest view expressed by the apex Court has to be followed." 11. The Excise Sub-Inspector was not authorised to search and seize the contraband article under Section 42 of the Act. The conviction of the appellant under Section 20(b)(i) of the Act is illegal and without jurisdiction. The trial Court totally ignored the provision contained in Section 42 of the Act. The conviction of appellant under Section 20(b)(i) is hereby quashed. The appellant has already served five years imprisonment and has been released from custody, This appeal is accordingly disposed of.