Judgment 2. Thefacts relevant for deciding the appeal, briefly stated, are that on 23-11-1991 at about 11.00 a.m.,’ a Maruti Car No. DL-1C-B-1117 was apprehended by the raiding party of the Narcotics Department near Talera Petrol Pump of Bundi town. The raiding party was headed by Anand Singh Negi, Superintendent, and consisted of Satpal Singh Sabbarwal SI, Bajranglal, Behari Singh, Jahin Abmad and Manohar Singh (Driver). Upon interception of the car, appellants were found to have been sitting inside it, and search was conducted in the presence of two independent witnesses. During search, 11 packets containing opium in all weighing 10.800 Kgs. were found duly concealed inside cavities of doors of the car. Samples weighing 24 gms. each from those packets were taken and sealed separately in cigarette cases and rest of the opium from the seized packets was packed in a white cloth and then sealed with a seal vide memo Exhibit P-5 by Satpal Singh S.1. During usual investigation, seizure memo Exhibit P-i of the opium was prepared, appellants were arrested vide memos (Exs. P-2 and P-3) intercepted maruti car was seized vide memo Exhibit P-4 and site plan of the place of incident was also prepared vide memo Exhibit P-6. Thereupon, written report (Exhibit P-7) was submitted by Satpal Singh S. I. and crime was registered by the Superintendent Narcotics Bureau who handed over the matter to Shiv Narain Inspector for further investigation during which statements of various witnesses so also of the appellants were recorded under Section 67 of the NDPS Act, and the samples taken from the seized opium were sent for chemical examination to Government Opium and Alkaloid Works, Neemuch (MP), which sent its report dated 30-1-92 (Exhibit P-12) confirming the substance to be opium. After completion of usual investigation, a complaint was filed before the concerned Magistrate on 19-2-1992 who committed the case for trial to the Court of Sessions. The changes were framed for offence under Section 8/18 of the NDPS Act against the appellants, who denied the same and claimed trial. 3. After completion of usual investigation, a complaint was filed before the concerned Magistrate on 19-2-1992 who committed the case for trial to the Court of Sessions. The changes were framed for offence under Section 8/18 of the NDPS Act against the appellants, who denied the same and claimed trial. 3. During trial, prosecution examined as many as 11 witnesses namely, PW 1 Satpal Singh Sub-Inspector -scribe of Panchnama, FIR and part of investigation; PW 2 Surendra Singh and PW 3 Abid Hussain --both ‘motbirs’ but declared hostile; PW 4 Constable Bajranglal --witness to search and seizure; PW 5 Superintendent Anand Singh Negi --witness to search and seizure; PW 6 Inspector Shiv Narain who conducted investigation in part; PW 7 SHO Surjit Singh who conducted search of residence of Abdul Sattar; PW 8 Sahadat Ali and PW 9 DharamCnand who were motbirs of search of residence of Abdul Sattar but were declared hostile; PW 10 Mool Singh was motbir of search of residence of Abdul Sattar; and PW ii Inspector Nandlal who was also witness for search of residence of Abdul Sattar. The appellants were examined under Section 313, CrPC. and in their explanation, they denied the allegations and pleaded false implication. In defence statement of Surjit Singh was got exhibited as Exhibit D-1. After hearing the parties, the learned trial Court convicted and sentenced the appellants as indicated above. Hence, this appeal. 4. I have heard Shri S. R. Bajwa the learned Senior Advocate for the accused appellants and Shri Bhanwar Bagri the learned Public Prosecutor for the respondent Union of India, and have also examined relevant documents on record as well as findings recorded by the learned trial Court with reference to the contentions and submissions made on behalf of the appellants so also legal position on the subject. 5. The contentions advanced on behalf of the appellants during the course of hearing briefly stated are thus. 5. The contentions advanced on behalf of the appellants during the course of hearing briefly stated are thus. The impugned Judgment suffers from various glaring illegalities because (1) mandatory provisions of Section 50 of the NDPS Act as to statutory option for being given to the accused at the time of interception/search/seizure of the contraband substance have been violated and rather not complied with; (2) statements of the appellants recorded under Section 67 of the NDPS Act are hit by Article 20(3) of the Constitution of India for the reasons that once the appellants were arrested much before recording of their statements and accused of the offences, they could not be examined under Section 67 of the NDPS Act, thereby such statements Exhibit P-14, Exhibit P-15 and Exhibit P-17 are inadmissible in evidence and that apart, even otherwise also, statement of appellant Paramjit Singh does not help the prosecution in any way inasmuch as, PW 5 Anand Singh Negi who recorded these statements of the accused had not proved the same before the trial Court by any independent and corroborative evidence; (3) the impugned search and seizure has not been endorsed by two independent motbir witnesses namely; PW 2 Abdul Hussain and PW 3 Surendra Singh since both have been declared hostile; (4) the complainant namely; PW 1 Satpal Singh who had conducted the impugned search and seizure and thereupon lodged written report (Exhibit P-7) and since admittedly he drew Panchnama of seizure, site plan (Exhibit P-6) and further took steps in investigation, he was above all an informant and, therefore, exercise of powers of investigator on the part of the informant like Satpal Singh is a serious illegality; (5) most important link evidence of carrying samples from Malkhana to Chemical Laboratory has not been adduced, thereby the significant material circumstance as to in whose custody the samples remained and whether, in a sealed condition throughout has not been proved, inasmuch as, chemical examiner’s report; (Exhibit P-12) does not furnish details regarding tests undertaken, readings noted and chemical changes recorded, it is too much cryptic and in the absence of aforesaid details, a bare opinion of the Examiner is hardly of any significance; (6) it is a case of complete lack of evidence or material relevant to connect either of the appellants with conscious and exclusive possession of opium, because of this reason as well, recovery of opium secretly secured beneath inner plywood lining of the car doors could hardly be taken to connect the appellants with its exclusive or conscious possession and (7) the prosecution has failed to establish:--(a) connection between appellant Angrej Singh and the money recovered from the search of house of Abdul Sattar, and (b) as to whether maruti car was being driven by either of the appellants inasmuch as ignition key was never recovered from either of the appellants. 6. In order to appreciate contentions canvassed on behalf of the appellants in their true perspective, I deem it proper to advert first to the provisions contained in Section 50 of the NDPS Act which stipulates 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 Sub-section (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 anyone excepting a female. 7. Undoubtedly, under the provisions of Section 50 of the NDPS Act, there are mandatory obligations cast upon the investigating agency or the officer authorised under Section 42 to conduct search under Sections 41, 42 of 43, that before it conducts a search of any person who is being apprehended or intercepted whether on the basis of any suspicion or information received that he has been either carrying or found in possession of any such contraband, he had to satisfy following conditions:--(i) the officer conducting search should be duly authorised under Section 42 since power of entry, search, seizure and arrest without any warrant or authorisation as mandated by provisions of Section 42 would become not only meaningless and redundant but also an exercise in futility. Section 42 permits officer who is duly authorised to conduct search, to enter into any building conveyance or enclosed place between sunrise and sunset, and in the event of any resistance, to break open any door and remove any obstacle to such entry. Section 42 permits officer who is duly authorised to conduct search, to enter into any building conveyance or enclosed place between sunrise and sunset, and in the event of any resistance, to break open any door and remove any obstacle to such entry. He is further authorised to seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the NDPS Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance. Further such an officer is authorised under Section 42(1)(d) of the Act to detain and search and, if he thinks proper arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. Thus, this is the position as per provisions contained in clauses (c) and (d) to Sub-section (1) of Section 42. However, proviso to Sub-section (i) of Section 42 makes it binding upon such an officer authorised that before he makes his entry in any building or apprehended any conveyance, he has to record grounds of his belief or suspicion on the basis of which he has made search of it. Sub-section (2) to Section 42 further makes it explicitly clear that where an officer takes down any information in writing under Sub-section (i) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate superior officer. 8. Section 43 of the Act relates to power of seizure and arrest in public places. Explanation to this section defines expression ‘public place’ which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. This section confers power upon any officer of any of the departments mentioned in Section 42 to conduct seizure at any public place or in transit any narcotic drug or psychotropic substance for which he has reason to believe that an offence punishable under Chapter IV has been committed and along with such drug or substance, any animal or conveyance or article liable to confiscation under the Act. 9. 9. Thus, from the above discussion, it is apparent that the condition, which are prerequisite to conduct search of any person of whom there is any suspicion or there is ground to believe that he has committed any offence by carrying on the contraband, such person if he so requests, has to be produced without unnecessary delay to the nearest Gazetted Officer of any of the departments as mentioned in Section 42 of the Act or to the nearest Magistrate. 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 Section 50(1). Section 50(3) mandates that the Gazetted Officer or the Magistrate before whom any such person is brought shall, if he finds no reasonable ground for search. Forthwith discharge the person but otherwise shall direct that search be made. 10. It thereforefollows that as regards search of the person apprehended, mandatory requirements as referred to above have to be complied with since violation of any such conditions would render the search, itself , illegal, void and inconsequential being non-est in the eyes of law. 11. Section 52 of the Act mandates that any officer arresting a person under Section 41, 42 or 43 or 44 shall, as soon as may be, inform him of the grounds of such arrest:--that every person arrested and article seized under warrant issued under subsection (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued and that every person arrested and article seized under Sub-section (2) of Section 41, 42, 43 or 44 shall be forwarded without unnecessary delay to; (a) the officer-incharge of the nearest police station, or (b) the officer empowered under Section 53. Sub-section (4) to Section 52 mandates that the authority or officer to whom any person or article is forwarded under Sub-section (2) or Sub-section (3) shall with all convenient despatch, take such measures as may be necessery for the disposal according to law of such person or article. 12. Sub-section (4) to Section 52 mandates that the authority or officer to whom any person or article is forwarded under Sub-section (2) or Sub-section (3) shall with all convenient despatch, take such measures as may be necessery for the disposal according to law of such person or article. 12. Sub-section (2) to Section 52A mandates that where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in Sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers, or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in Sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under the Act and make an application to any Magistrate for the purpose of -- (a) certifying the correctness of the inventory so prepared, or (b) taking, in the presence of such Magistrate, photographs of such drugs or substance and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Where any application has been made in the, manner referred to in Sub-section (2) to Section 52A by the officer-in-charge of Narcotic department, it is mandatorily expected of the Magistrate to pass necessary orders in accordance with law thereon. 13. Section 52A(4) stipulates that every Court trying an offence under the Act shall treat the inventory the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under Sub-section (2) and certified by the Magistrate as primary evidence in respect of such offence. 14. It is apparent from the above discussion that the safeguards as provided to an accused before he is apprehended on alleged suspicion of carrying any narcotic substance have to be complied with and violation of any such conditions as discussed above would render not only the investigation but also consequential inquiry and trial pursuant thereto void-ab-initio, inconsequential and non-est in the eyes of law. 15. 15. In order to appreciate the contentions advanced by Shri S. R. Bajwa learned senior Counsel representing the appellants at the bar, I have examined the same in details with reference to evidence available on summoned record and also provisions of the Act, referred to above. 16. As regards first contention of Shri Bajwa regarding non-compliance of mandatory provisions of Section 50 of the Act as to the statutory options available to the accused appellants which were not invited by the concerned official who had made search of the accused appellants and the car in which they were found travelling on the date of occurrence i.e. 23-11-91 more particularly by the investigating officer Satpal Singh (PW 1), I have examined his statement. From a perusal of his statement, it is apparent that he had neither invited options from the accused appellants when they were apprehended with regard to their production to the nearest gazetted officer available within the vicinity of the area where their vehicle i.e. Maruti Car in which they were found travelling while carrying the contraband was apprehended, as to whether they would like to be produced to the nearest gazetted officer or before the nearest available Magistrate. From the findings recorded by the learned trial Court it is apparent that there is no discussion either with regard to the compliance of pre-requisite conditions as referred to in Section 50 of the Act or whether requisite formalities with regard to compliance of other provisions of the Act relating to search, seizure and arrest etc. were at all complied with by the Investigating Agency during investigation in the case. There are inherent incongruities as aforesaid, which have not been explained by the prosecution and hence in absence of this, it cannot be inferred that there was any compliance of the aforesaid conditions which obviously cast serious doubts on the prosecution case. 17. The findings recorded by the learned trial Court as per paras 12, 13, 15 and 16 of the impugned Judgment , pertain to the discussion as to the search made to the vehicle in question being apprehended by the members of the raiding party in which* the accused appellants were found travelling in Maruti Car bearing registration No. DL-1C-B-1117 on 23-11-91 at about 11 a.m. at a place near petrol pump of Talera of Bundi District, and were found in possession of contraband-opium weighing 10.800 kgs. for which they did not have any licence. The contraband was seized by the member of the raiding party and after preparing site plan Exhibit P7 and taking samples of the seized opium, samples were sent for chemical examination to the Chemical Examiner at Neemuch (M.P.) and the statements of the accused were recorded vide ExhibitP.6 and P.7. Satpal Singh (PW 1) who had conducted the initial search and investigation in the matter deposed before the trial Court that on the day of occurrence on 23-11 -91 at about 11 a.m. when he had apprehended aforesaid Maruti Car in which accused appellants were found travelling, the raiding party comprising of Sub-Inspector, and the Superin- • tendent of the Narcotic Bureau who was heading the party had apprehended the accused appellants travelling in that Maruti Car and the search thereto revealed resulting into recovery of 14 packets of contraband-opium which were found concealed in the cavities of the doors to the Car. Thereupon from the packets it was found that those packets contained opium and on the said article of opium being weighed they were found to be weighing 10.800 kgs and thereafter samples were prepared and separately sealed in cigarette cases while rest of the opium other than samples was packed in white cloth and sealed with the seal of the Narcotic bureau. 18. Froma perusal of the summoned record, it is nowhere apparent as to whether Satpal Singh (PW 1) after conducting the seizure or search had invited options of the accused appellants as to whether they would like to be produced before the gazetted officer or to the nearest Magistrate notwithstanding the fact that the office of the Tehsildar was situated within close vicinity of the place from where the accused appellant were apprehended at Talera petrol pump of Bundi District, and the nearest, Magistrate before whom they could have been produced was available in Bundi, as required under the provisions of Section 50 of the Act. 19. 19. As regards prior authorisation of the appropriate authority before they proceeded to the place of occurrence, no such evidence has ever been produced before the trial Court in the form of either case diary or any other document admissible in evidence which would have duly indicated the date and time before they left for the place of occurrence or the prior permission or authorisation which the said officer and obtained from the appropriate authority, as is mandatorily required under the provisions, of Section 42 of the Act, because under Section 42 of the Act, the entry, search, seizure and arrest without warrant or authorisation could be made by the officers mentioned in Section 42 only between sunrise and sunset, otherwise there should have been prior permission, author-sation or warrant for making such search, seizure etc. The trial Court has not recorded any finding to this effect which would indicate that the investigation officer concerned had obtained such prior authorisation before conducting the search on the fateful day. Under the proviso to Section 42(1), it is mandatorily required to record grounds of belief by the officer who has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity, for the concealment of evidence before he may enter and search such building, conveyance or enclosed place at any time between sun set and sunrise. In the instant case, the officer who conducted search and seizure etc. on the fateful day has deposed in his evidence on record that he had recorded the grounds of his belief before he made search of the vehicle in question to the effect that he had reason to believe that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence. on the fateful day has deposed in his evidence on record that he had recorded the grounds of his belief before he made search of the vehicle in question to the effect that he had reason to believe that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence. This by itself in my view is not a plausible explanation sufficient enough to inspire any confidence in order to dispel any doubts as to what were those exceptional circumstances which prevented the Investigating Officer who had effected seizure of the contraband-opium from the appellants from obtaining search warrant or authorization from the competent authority, particularly when Section 50 of the Act mandates that before the Investigating Agency the officer authorised under the provisions of Sections 41, 42 or 43 conducts a search of any person apprehended of intercepted either on the basis of any suspicion on information has complied with the mandatory conditions as so specified therein. Furtherance, there is no explanation on the record as to whether the accused-appellant were apprised of their right or any option was invited from them of being searched in the presence of a Gazetted Officer or a Magistrate when they were, arrested and contraband was seized from them. 20. As regards contentions of the appellants’ Counsel that from the evidence on record the basic infirmity which has been committed by the investigating agency relates to the effect that there is no explanation on record as to in whose custody samples of the opium remained following their seizure and whether they remained in sealed condition through out when they were taken from Malkhana to Chemical Examiner’s Laboratory; in absence of any explanation on the part of the investigating agency, in my view, the chances of tampering with samples by any one else cannot be ruled out. .21. My aforesaid view is fortified by the proposition of law propounded in the following decisions .(1) State of Punjab v. Balbir Singh 1994 CriLR (SC) 241: 1994 CriLJ 3702 .(2) Shivlal v. State of Rajasthan 1998 CriLR (Raj) 458 .(3) Nadeem v. State of Rajasthan 1998 CriLR (Raj) 392 .(4) Gopi Bandhu Sahu v. State of Andhra Pradesh (1994) 1 Crimes 996 .(5) Kingett Edward Christopher v. State of Himachal Pradesh (1996) 2 Crimes 245 (DB) .(6) State ofRajasthan v. Daulat Ram AIR 1980 SC 1314 : 1980 CriLJ 929. 22. In State of Punjab v. Balbir Singh 1994 CriLJ 3 to 2 (Supra), police officer empowered under the Act proceeded to conduct search of the accused in usual course of investigation. The question arose as to whether as a result of non-compliance of provisions of Sections 41, 42, 50, 52 and 57 of the Act read with Sections 109 and 165, CrPC the investigation and consequential trial could be sustained in law. The Apex Court held that the aforesaid provisions of the Act are mandatory and the officer conducting search is under an obligation to make the accused aware of his rights. It was further observed that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing an important safeguard to the accused. To. afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. Thus, the provisions implicity make it obligatory on the authorised officer to inform the person to be searched of his right. 23. It has also been laid down that in considering whether a provision in a statute is mandatory and the effect of non-compliance of the same the Courts should keep in mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be contstrued in the context. Such is the importance of a right given to an accused person in custody in general, who is detained by the concerned department dealing with either contraband abuse or padding in narcotics, and, therefore, essential safeguards which are available to an accused must be observed. Since otherwise, imperative requirements of the Act shall stand frustrated, and the levy object of the enactment which is to avoid trafficing narcotic shall stand defeated. Since otherwise, imperative requirements of the Act shall stand frustrated, and the levy object of the enactment which is to avoid trafficing narcotic shall stand defeated. I am therefore of the view that the search of the accused should be made in the presence of independent witnesses and in the event of their being not available, the officer conducting search must record the reasons thereto while acting under the provisions of Sections 100 and 165, CrPC and making search of the accused under Sections 41,42, 50 and 51 of the Act. Since failure to do so in my view, would vitiate trial and Section 164, CrPC has to be read along with Sections 41(1) and 41 (2) where officer making search is required to record his reasons also as well. 4.24. In Gopi Bandhu Sahu v. State of Andhra Pradesh, (1994 (1) Crimes 996) (Supra), the accused was not apprised of his right of being searched in the presence of a gazetted officer or a Magistrate when he was being arrested and the contraband was being seized from him. The question arose consideration before the Andhra Pradesh High Court was, as to whether such a failure of the prosecution would amount to violation of Section 50(1) of the Act. It was held that it would certainly be violative of his valuable rights and failure to do so on the part of the prosecution would result in violation of valuable rights to the accused and thereby the accused was held entitled to acquittal under the Act. 25. In Kingett Edward Christopher V. State of Himachal Pradesh (1996 (2) Crimes 245) (Supra), the accused was apprehended from outside Airport and taken to the search room of Airport and then the recovery of 490 gms of Charas was made from him. Independent witnesses were not made to join the search by the Investigating Officer which resulted in causing prejudice to the defence of accused. Independent witnesses were not made to join the search by the Investigating Officer which resulted in causing prejudice to the defence of accused. It was held by the learned Division Bench of the High Court that oral evidence relied upon by the prosecution regarding joining of the recovery witnesses that the accused opted to be searched by the investigating officer found omitted in their statement under Section 161, CrPC and the circumstances showing that factum of oral option having been given by appellant was an afterthought, and, therefore, search as a result of violation of Section 50 of the Act could not be said to be a lawful and the benefit has to be given to accused. The conviction challenged before the High Court for non-compliance of Section 50 of the Act was held sustainable. 26. In State of Rajasthan v: Daulat