M. R. CALLA, J. ( 1 ) THIS Appeal as was sent to this Court through Jail is directed against the order of conviction and sentence passed by the learned Additional City Sessions Judge, Court No. 9, Ahmedabad on 2 6/04/1990, in Sessions Case No. 44 of 1989, whereby the present appellant, namely, Himatbhai Pethabhai Vankar was convicted for the offences punishable under sec. 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act,1985, (which will be hereinafter referred to as "ndps Act"), read with sec. 66 (b) of the Bombay Prohibition Act, 1949 ("prohibition Act" for brevity) whereby the appellant herein was sentenced to 10 years rigorous imprisonment with a fine of Rs. 1,00,000. 00; in default of payment of fine to further undergo rigorous imprisonment for a period of two years in addition to 10 years. No separate sentence has been awarded for the offence under sec. 66 (b) of the Prohibition Act and set off was directed to be given for the period of sentence undergone during the trial. The appeal was admitted on 13. 9. 1990 by the Division Bench and during pendency of the appeal, Shri P. M. Vyas has been appointed to represent the appellant in this Appeal by the Registry of this Court in place of one Shri N. I. Dave. ( 2 ) THE prosecution came with the case that on 22. 1. 1988, at about 8. 30 PM, Shri Deepak Kumar Shantilal Vyas, Police Sub Inspector, attached to the Surveillance Squad of Kagdapith Police Station, Ahmedabad was on patrolling duty with his Police Party. While he was proceeding towards Vijaynagar via Raipur Hulladia Hanuman, Kantodiya Vas, Near Ankur Textile, he received information that one person, named, Himat Pethabhai Harijan, resident of Majurgam, was to pass through that way with prohibited narcotic drug, viz. charas. Upon receipt of such information, the complainant, Shri Deepak Kumar Shantilal Vyas, Police Sub Inspector called two witnesses from the persons passing through that road and explained them the purpose for which they were called. The witnesses expressed their readiness and willingness to stand as Panch witnesses and thereupon the complainant, i. e. PSI Shri Vyas instructed his Police party to arrange for trap at the place where he received information as referred to hereinabove. Shortly thereafter, the person named Himatbhai Pethabhai Harijan was noticed coming from Kankaria side and he was intercepted. The witnesses expressed their readiness and willingness to stand as Panch witnesses and thereupon the complainant, i. e. PSI Shri Vyas instructed his Police party to arrange for trap at the place where he received information as referred to hereinabove. Shortly thereafter, the person named Himatbhai Pethabhai Harijan was noticed coming from Kankaria side and he was intercepted. The PSI, in presence of Panch witnesses inquired his name and address, and the said person gave out his name to be Himatbhai Pethabhai Vankar, resident of Majurmgam, Laxmipura Chawl. He was subjected to search for possessing prohibited narcotic drug, viz. Charas in presence of the Panch witnesses. As a result of the search, five small pellets packed in five different plastic bags were found from the right pocket of his pant. These bags were found to contain a substance of blackish colour and on the basis of the odour of the substance, the substance was suspected to be charas. Himatbhai Pethabhai was asked as to whether he possessed any licence to possess this type of substance. He answered in negative. The PSI then prepared Panchnama with regard to the search and seizure and five plastic bags containing five pellets of the aforesaid substance weighing 15 grams, in all, suspected to be Charas were wrapped in a piece of paper, which was tied with a string. After perfectly wrapping the same, a slip bearing signatures of two Panch witnesses and that of the complainant, PSI himself, was put on the packets and was again tied and sealed properly. Care was also taken to place the sealed packet in a small tin which was also wrapped with a piece of paper and sealed properly in presence of Panch witnesses. The complainant, PSI then went to the Police Station along with the Police party, Muddamal, Panchnama and the accused; handed over the Muddamal with his report to the Police Station Officer, who received the accused, Panchnama, Muddamal, report etc. and registered the offence at Kagdapith Police Station at No. 41 of 1988. Accused, Himatbhai Pethabhai was taken into custody and the sealed tin containing Muddamal was also placed in safe custody. After the report under sec. 157 of the Code of Criminal Procedure, papers were given to the complainant, PSI for further investigation. The accused was produced before the Metropolitan Magistrate, Court No. 12 on 23. 1. Accused, Himatbhai Pethabhai was taken into custody and the sealed tin containing Muddamal was also placed in safe custody. After the report under sec. 157 of the Code of Criminal Procedure, papers were given to the complainant, PSI for further investigation. The accused was produced before the Metropolitan Magistrate, Court No. 12 on 23. 1. 1988 for taking him in judicial custody and accordingly he was taken into judicial custody. After completing investigation, charge sheet was filed on 26. 4. 1988. Initially, criminal case was registered at No. 936 of 1988 in the Court of Metropolitan Magistrate, but trial of offence levelled against the accused being within the sole competence of the Sessions Court, Ahmedabad, the learned Chief Metropolitan, Ahmedabad committed the case to the Sessions Court and accordingly the case was registered as Sessions Case No. 44 of 1989. ( 3 ) AT the trial, the prosecution has examined the following five witnesses : (I) Aljibhai Khushalbhai, (ii) Valimohmed Kalubhai Sheikh, (iii) Chandrasinh Karsanbhai, (iv) Chhelkhan Umarkhan Pathan, and (v) Deepakkumar Shantilal Vyas. By way of documentary evidence, exh. 23, i. e. original complaint dated 22. 1. 1988, the complainants report, exh. 24 dated 22. 1. 1988, Panchnama of the search of the accused, exh. 13 dated 22. 1. 1988, Forensic Science Laboratory report, exh. 10 dated 25. 11. 1988 and Forwarding Report, exh. 11 dated 21. 11. 1988 were also produced. Besides this, the Station Diary of the relevant date and duplicate copy of the forwarding letter for sending Muddamal for analysis to the Forensic Science Laboratory were also produced. After prosecution evidence was over, the statement of the accused/ appellant were recorded under sec. 313 of the Code of Criminal Procedure, which show that the defence which was put up by the appellant/ accused was that on 22. 1. 1988, he was placed in lock up at 9. 00 AM and the case of prosecution that he was placed in lock up at 9. 45 in the night is wrong. He has further stated that on 22. 1. 1988 in the morning hours, he was sitting at the cycle shop near Majoorgam Char Rasta and when his elder brother came there, he told the accused, appellant that they were required to go to Raipur. 45 in the night is wrong. He has further stated that on 22. 1. 1988 in the morning hours, he was sitting at the cycle shop near Majoorgam Char Rasta and when his elder brother came there, he told the accused, appellant that they were required to go to Raipur. Therefore, he and his elder brother had left for Raipur on cycle and while they were near Kantodiavas Char Rasta, two Police personnel came and told him that against him an application has been received and for that purpose he is required at the Police Station. The appellant accused replied that he would come to the Police Station at 4. 00 PM, but the Policemen took him along with his elder brother to the Police Station and after questioning him placed him in the lock up, while the elder brother was allowed to go. On the very same date, in the evening at about 8. 00 PM, he came to know that an offence relating to possession of Charas has been registered against him and therefore, he had been detained. He has stated that in fact nothing like charas was in his possession and nothing was recovered from him in presence of Panchas. The reality is that in Kagdapith Police Station, the appellant, accused was considered as a headstrong person and therefore, he had been falsely implicated. It has also been stated that Panch, Vali Mohammed Kalubhai Shaikh was a man of Police, who has been appearing as Panch witness, very frequently, in different cases. The name of Vali Mohammed was also shown as Panch witness on 1. 1. 1989 against Bakhtar Ali in Crime Register No. 6/89. The appellant, accused had also given out that he had produced copies of charge sheets in Cases Nos. 1755/88, 251/88, 1721/88, 5684/89, 3683/89, and 4481/89, wherein Vali Mohammed had been shown as Panch witness, in all these cases. Vali Mohammed is an accused in Case No. 4421/89 under Motor Vehicles Act and that he (appellant-accused) had also produced copies of FIRs in C. R. Nos. 40/88 and 21/89. The Case No. 40/88 is a case against one Vasant Ram Valia Dada for 5 liters of country liquor and Case No. 21/89 is a case against the present appellant-- accused under sec. 457, 380 and 114 of IPC as a case of theft of timber. 40/88 and 21/89. The Case No. 40/88 is a case against one Vasant Ram Valia Dada for 5 liters of country liquor and Case No. 21/89 is a case against the present appellant-- accused under sec. 457, 380 and 114 of IPC as a case of theft of timber. The appellant, accused has also stated that all these documents had been exhibited in the trial. ( 4 ) ON consideration and appreciation of the evidence at the trial, the learned Additional City Sessions Judge, Court No. 9, Ahmedabad recorded the appellants conviction under sec. 20 (b) (ii) of the NDPS Act read with sec. 66 (b) of the Prohibition Act and sentenced the appellant as mentioned above. It is against this order passed by the learned Additional City Sessions Judge, Court No. 9, Ahmedabad on 26. 4. 1990, in Sessions Case No. 44/89, that the present appeal has been preferred. ( 5 ) SHRI P. M. Vyas, learned counsel for the appellant has also invited our attention to yet another case in which the present appellant was involved and that pertains to the incident dated 22. 1. 1989, on the basis of which the appellant was tried in Sessions Case No. 129 of 1989, resulting into the appellants conviction under sec. 20 (b) (ii) of the NDPS Act read with sec. 66 (1) (b) of the Prohibition Act, for which he was sentenced to 10 years rigorous imprisonment with fine of Rs. 1 lakh. In that case also the case against the appellant was that 75 grams of charas has been found from his possession. Against this order of conviction and sentence passed on 6. 10. 1989 in Sessions Case No. 129 of 1989, an appeal was preferred before this Court being Criminal Appeal No. 813 of 1989, which was decided on 2. 2. 1996 and the conviction and sentence was upheld and the appellant is at present serving sentence in both the cases, i. e. as a result of conviction and sentence in Sessions Case No. 129 of 1989 and the present case, i. e. Sessions Case No. 44 of 1989, which is subject matter of the present Appeal. ( 6 ) THE aforesaid facts have been narrated by us to clarify that although the appellant was in Jail on account of the incident dated 22. 1. ( 6 ) THE aforesaid facts have been narrated by us to clarify that although the appellant was in Jail on account of the incident dated 22. 1. 1988, out of which arose Sessions Case No. 44 of 1989, he was, in fact, granted bail on 28. 4. 1988 in Sessions Case No. 44 of 1989 and was released on 29. 4. 1988 and while he was released on bail during the pendency of Sessions Case No. 44/89, the appellant was involved in yet another case of possession of 75 grams of charas on 22. 1. 1989, on the basis of which Sessions Case No. 129 of 1989 had to be faced by the appellant. In any case, the fact remains that but for the period from 29. 4. 1988 to 22. 1. 1989, the present appellant has been, all through out, in Jail since 22. 1. 1988. ( 7 ) ON behalf of the appellant, the order of conviction and sentence has been challenged on more than one grounds including the ground of violation and non compliance of sec. 50 of the NDPS Act. However, we find that this is a case which can be decided only on the ground of sec. 50 of the NDPS Act. We, therefore, do not find it necessary to go into other grounds which have been urged by the learned counsel for the appellant. Sec. 50 of the NDPS Act is reproduced as under :"50. CONDITIONS under which search of persons shall be conducted-- (1) when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, 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. (2) if such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1 ). (3) the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) no female shall be searched by any one excepting a female. (3) the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) no female shall be searched by any one excepting a female. " ( 8 ) WE may first refer to PW 1, Aljibhai Khusalbhai, examined vide exh. 8. This witness has stated that on 22. 1. 1988, he was a member of detection staff, i. e. d Staff at Kagdapith Police Station and was on duty with PSI Shri Vyas along with others. On that date, i. e. 22. 1. 1988 at about 8. 30 PM, PSI Shri Vyas got an information near Raipur Darwaza and the Gate of Ankur Textiles that one person, named, Himatbhai Pethabhai Vankar was coming with unauthorised charas and that he will be going towards Laxmipura Chali. Shri Vyas, therefore, called two persons to remain present as Panchas and whereas the two persons agreed, they were briefed to be present. Thereafter, near Hulladia Hanuman, ahead of Kantodiavas, members of the detection staff were deployed and when said Shri Himatbhai Pethabhai came, Shri Vyas called the Panchas and stopped said Shri Himatbhai Pathabhai, who disclosed his name as Himatbhai Pethabhai Vankar. Said Shri Himatbhai was searched in presence of Panchas. As a result of the search, five plastic bags were found from the pocket of his pant and each of the five bags contained a substance weighing 3 grams. The substance which was contained in these five plastic bags appeared to be charas. The same was shown to the Panchas and Panchnama was prepared. It was weighing 15 grams in all, the same was put in five covers and was sealed with the slip bearing signatures of Panchas and a seal was put on the thread, which was wrapped around. The same was then put in a small tin container and that too was sealed. Shri Himatbhai was questioned as to whether he had any licence or permit to possess the said item. He replied that he had no such licence or permit. This witness has also stated that his statement was also recorded. He has also identified the substance in the court as was contained in the tin container and the five plastic bags, i. e. Muddamal, exh. He replied that he had no such licence or permit. This witness has also stated that his statement was also recorded. He has also identified the substance in the court as was contained in the tin container and the five plastic bags, i. e. Muddamal, exh. 4, with the seal of Forensic Science Laboratory, which was opened in the Court. This witness has also deposed in the cross examination that he knew Himatbhai Pethabhai even prior to the incident because he was involved in other criminal cases. Having deposed so, he has immediately resiled from this statement and said that it was wrong to say that he knew the accused prior to the incident. The next witness is Shri Vali Mohammed, PW 2, examined vide exh. 12. He is a Panch witness with regard to the search and recovery of the substance in question. He has supported the facts with regard to search of Himatbhai Pethabhai and that the contraband substance was found and the same was sealed. He has also supported the prosecution with regard to the sealing of the substance. ( 9 ) SHRI Chandrasinh Karsanbhai, PW 3, who was Police Station Officer of Kagdapith Police Station at the relevant time has been examined vide exh. 15. He has stated that on 22. 1. 1988, he was on duty from 20. 00 hrs to 24. 00 hrs. PSI Shri D. S. Vyas had handed over to him the complaint, Panchnama, the accused and the Muddamal and has stated that the required procedure was followed thereafter. He has deposed in the cross examination that he did not put his seal on the Muddamal. Having said that he does not know if there had been any cases against the accused prior to 1987, he has denied the suggestion that there was any enmity between the officers of the Police Station of Kagdapith and the accused and that it was on this account that the accused had been caught involved in a false case. Shri Chhelkhan Umarkhan Pathan, PW 4 has been examined vide exh. 19, who was a Crime Writer of Kagdapith Police Station. Having deposed about the procedure with regard to the manner in which Muddamal was kept, he has stated that for further investigation, the Muddamal was sent to the Forensic Science Laboratory on 2. 2. 1988. Shri Chhelkhan Umarkhan Pathan, PW 4 has been examined vide exh. 19, who was a Crime Writer of Kagdapith Police Station. Having deposed about the procedure with regard to the manner in which Muddamal was kept, he has stated that for further investigation, the Muddamal was sent to the Forensic Science Laboratory on 2. 2. 1988. He has explained the delay in sending the Muddamal to the Forensic Science Laboratory for the period on and from 22. 1. 1988 to 2. 2. 1988 by saying that the Muddamal of more than one cases are sent to the Forensic Science Laboratory when such substances pertaining to different cases are collected, they are consolidated in a group of Muddamals and sent in one batch since sending individual Muddamal each and every time causes inconvenience. He has also deposed regarding entries made in the Crime Register. In cross examination he has also stated that no Inward and Outward Register of Muddamal is maintained. ( 10 ) SHRI Deepak Kumar Shantibhai Vyas has been examined as PW 5, vide Exh. 22, who was PSI on 22. 1. 1988. He has stated that he was in the Surveillance Squad at Kagdapith Police Station and he was accompanied by the Head Constables, Laljibhai Kanaksinh, Arjun Sinh, Madsinh, Natvarsinh, Anopsinh and Jamadar Laljibhai Khushalbhai. He has also deposed that on 22. 1. 1988 while he was on patrolling duty at 20. 30 hours, near Ankur Textiles, he got information that a person, named, Himatbhai Pethabhai of Majurgam was coming with charas. Thereupon, he called two persons, who were passing thereby and having taken consent of those two persons to be present as Panchas, they were briefed to remain present near Hulladia Hanuman. After some time, Himat Pethabhai Harijan came from the road leading from Kankaria and he was intercepted near Hulladia Hanumanji in presence of the Panchas. He gave out his name as Himatbhai Pethabhai Harijan, as resident of Majurgam Laxmipura Chawl. He was told that he was to be searched for Charas. Thereafter, when the search was conducted, five plastic bags were found from the right pocket of his pant and each of the bags contained 3 grams of the substance, which appeared to be charas on the basis of its odour and the contraband substance was then sealed in presence of the Panchas and on the seal, slips containing signatures of Panchas were affixed. He had also signed the slip and the Panchas signed in his presence. He has also deposed that the accused was asked as to whether he had any permit or licence to possess charas. The accused replied that he had no permit or licence. He has referred to exh. 13, Panchnama, the complaint and has testified the contents of the complaint which was given at exh. 23. He has also referred to the chemical report and that he had handed over the Muddamal, accused and the report, etc. to the PSO and the PSO had then prepared report under sec. 157 of the Code of Criminal Procedure, who then entrusted the case to him for further investigation. After investigation, charge sheet was submitted in the court on 26. 4. 1988. In the cross examination, he has stated that weekly diary is required to be written and the same is sent every week to the Police Superintendent, who screens the same. ( 11 ) THE learned counsel for the appellant has submitted that on the deposition of these witnesses it is very clear that the concerned Police Officer, Shri Vyas knew it very well before intercepting the accused that he was to be searched for charas because information which was received by him was that Himatbhai Pethabhai was coming with charas. He has submitted that despite prior knowledge that the appellant accused was to be searched for charas, he did not care to ask the appellant as to whether he would like to be searched before a gazetted officer or the nearest Magistrate. None of the witnesses including the concerned PSI Shri Vyas has stated that the appellant was asked as to whether he would like to be searched before a gazetted officer or the Magistrate and thus, there is a clear violation of the provisions of sec. 50 of the NDPS Act. He has also submitted that the Panch witnesses were the witnesses who were regularly appearing as Panch witnesses in cases of the said Police Station and he has challenged the recovery itself and has also submitted that it was on account of certain other criminal cases that were against him and since the appellant accused was considered to be a headstrong person in the said Police Station, he was falsely implicated in this case by the Police Party. Shri Vyas, learned counsel for the appellant has also submitted that the appellants defence as taken by him in his statement under sec. 313 was suggested to the prosecution witnesses in the cross examination and documents had also been filed to show that the Panch, Vali Mohammed had been regularly appearing as Panch witness in cases more than one and that certain other criminal cases were pending against the appellant. ( 12 ) WE find on the facts of this case that this much is clearly established that the Police Sub Inspector, Shri Vyas did not ask the appellant, accused at the time of search as to whether he wants the search to be taken in presence of a gazetted officer or a Magistrate. It was not a case of intercepting the accused for any other purpose and it was very well known to Shri Vyas, the PSI himself that the appellant was to be searched for charas and that he was coming with charas. It was not at all the case of chance recovery of any narcotic drug. ( 13 ) WE have also gone through the cases which were cited by Shri P. M. Vyas, learned counsel for the appellant, viz. (I) State of Punjab v. Balbir Singh, JT 1994 (2) SC 108 : AIR 1994 SC 1872 . (II) State of Rajasthan v. Gopal, (1998) 8 SCC 449 . (III) State of Punjab v. Baldev Singh, JT 1999 (4) SC 595. ( 14 ) IN the case of State of Punjab v. Baldev Singh (supra), which is a case decided by a Bench of 5 Judges of the Supreme Court. Several other cases including the cases of State of Punjab v. Balbir Singh (supra) and the case of Pooran Mal v. The Director of Inspection (Investigation), New Delhi and others, 1974 (1) SCC 345 , have been considered. This is the latest decision of the Supreme Court in a case decided on 21/07/1999 by a Bench of 5 Judges and the law has been laid down and settled on the question of search with reference to the scope and span of sec. 50 of the NDPS Act. In para 12 of the judgement in State of Punjab v. Baldev Singh (supra) the Supreme Court has observed that:"12. 50 of the NDPS Act. In para 12 of the judgement in State of Punjab v. Baldev Singh (supra) the Supreme Court has observed that:"12. ON its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. "however, on the facts of the present case, the officer had prior information that the appellant accused was coming with charas. It is, therefore, not a case in which the contraband has been found only by chance while taking search for some other purpose in normal course. It is the case in which the concerned officer has positive information that the appellant was coming with charas and he was searched for charas. ( 15 ) IN para 14 of the very judgement, the Supreme Court has also observed that :"14. THE provisions of Sections 100 and 165 Cr. P. C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. . . . . . . " ( 16 ) IN para 15 of this very judgement, the Supreme Court has considered the import of expression as contained in sec. 50 of the NDPS Act, viz. . . . . . . " ( 16 ) IN para 15 of this very judgement, the Supreme Court has considered the import of expression as contained in sec. 50 of the NDPS Act, viz. "if such person so requires" he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate. The question posed was that, "does the expression not visualize that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right?" In this context while referring to Balbir Singhs case (supra) it has been noted that in the case of Balbir Singh, the Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take him for search before a Gazetted Officer or a Magistrate, would amount to non compliance with the provisions of section 50, which in turn would affect the prosecution case and vitiate the trial. The Two- Judge Bench which decided the case of Balbir Singh (supra) had come to the conclusion as has been reproduced at pages 615 to 617 of the judgment in the case of State of Punjab v. Balbir Singh, JT 1994 (2) SC 108 (supra), the conclusions nos. 1 and 5 as were arrived at in Balbir Singhs case are reproduced as under:" (1) if a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr. PC and when such search is completed at that stage, Section 50 of the ndps Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substances then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substances then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. "" (5) on prior information the empowered officer or authorised officer while acting under Sections 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, 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 affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. " ( 17 ) IT has been observed in para 18 of this very judgement, i. e. State of Punjab v. Baldev Singh (supra) that a three- Judge Bench in Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, reported in 1995 (3) SC 489, upheld the view taken in Balbir Singhs case on the point of duty to inform the suspect about his right to be searched before a Gazetted Officer or a Magistrate. After considering the provisions of sec. 50 of the NDPS Act, it was opined as under :"we are unable to share the High Courts view that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the precondition for his having satisfactorily accounted for such possession has not been met; and to acquit the accused. " ( 18 ) IN para 19, it has been observed that in the case of State of Himachal Pradesh v. Shri Pirthi Chand and anr, reported in JT 1995 (9) SC 411, the Bench agreed that the view taken in Balbir Singhs case (supra) regarding the duty to inform the suspect of his right as emanating from Section 50 of the NDPS Act in the following words :"compliance of the safeguards in Section 50 is mandatory obliging the officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit articles has to be satisfactorily established before the court. The officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114 Illustration (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. " ( 19 ) AFTER considering several other decisions, the conclusions arrived at in the case of State of Punjab v. Baldev Singh (supra) have been quoted in para 55 and the same are reproduced as under for ready reference :" (1) that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub- section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest magistrate for making the search. However, such information may not necessarily be in writing; (2) that failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) that a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) that there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) that whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial; (6) that in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned person of his right as emanating from Subsection (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) that an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) a presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) that the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) that the judgment in Ali Mustaffas case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chands case and Jasbir Singhs case are not in tune with the correct exposition of law as laid down in Pooran Mals case. " ( 20 ) THE position of law is, therefore, settled and it is the trite law that if the officer proceeding to take search has prior information that the suspect is in possession of contraband material; either narcotic drug or a psychotropic substance, the Search Officer is under an obligation and duty is cast upon him to inform the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate. Notwithstanding the fact as to whether such person himself of his own makes a request so as to take him to a Gazetted Officer or a Magistrate for the purpose of such search and further that failure on the part of the officer to discharge this obligation and duty as cast upon by the very language of sec. 50 of the NDPS Act, it would render the conviction and sentence to be illegal. In the facts of the present case, the breach of sec. 50 of NDPS Act is transparently clear as is born out by the prosecution evidence itself. It is established that the concerned officer had prior information with regard to possession of charas by the accused-- appellant and yet he did not take care to inform the accused about such a right and carried out the search himself without apprising the appellant of his right under sec. 50 of the NDPS Act. . It is established that the concerned officer had prior information with regard to possession of charas by the accused-- appellant and yet he did not take care to inform the accused about such a right and carried out the search himself without apprising the appellant of his right under sec. 50 of the NDPS Act. . ( 21 ) IN the facts of the present case and in view of the law laid in the case of State of Punjab v. Baldev Singh (supra), the learned APP Shri Pandya has found the prosecution indefensible so far as breach of sec. 50 of the NDPS Act is concerned. Violation of sec. 50 of NDPS Act and non compliance of its mandatory requirements as above is established beyond doubt. In the facts of the present case and in our considered opinion the breach and non compliance of sec. 50 of NDPS Act by itself is sufficient to render the appellants conviction and sentence to be illegal. ( 22 ) ACCORDINGLY, this Appeal succeeds. The order of conviction and sentence dated 26. 4. 1990 passed by the learned Additional City Sessions Judge, Court No. 9, Ahmedabad in Sessions Case No. 44 of 1989 is hereby quashed and set aside and the appellant stands acquitted of the offences for which he was convicted. The appellant, Himatbhai Pethabhai Vankar, shall be released forthwith, if he is not required to be detained in Jail on account of the sentence awarded to him in any other case. .