JUDGMENT 1. - The above named accused-appellant has preferred this appeal against the judgment and order dated 10.7.1995 passed by the learned Special Judge, NDPS Cases, Banswara in Sessions Case No. 8/93, by which he convicted the accused-appellant for the offence under section 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced him to undergo ten years' RI and to pay a fine of Rs. 1 lac, in default of payment of fine to further undergo three months' RI. 2. The facts giving rise to this appeal, in short, are as follows:- "On 28.4.1993, PW 4 Gajsingh, SHO, Police Station Kalinjara, District Banswara proceeded in a Jeep alongwith Shankarlal, PW 6, Fateh Singh, PW 5 and Madan Singh, driver of the Jeep towards Badodiya, where he received a secret information from mukhbir to the effect that in Bus No. RJ 14 2214 of Chittorgarh Depot, one person would carry with him contraband opium. Thereafter, PW 4 Gajsingh alongwith other police officials including PW 1 Harish Chandra and PW 5 Fateh Singh proceeded towards the spot in question and on the way, they took two motbirans, namely, PW 2 Purshottamlal Joshi and PW 3 Guruwachan Singh and reached the Bus Stand where the Bus in question came and thereafter, they entered in the Bus where they found one person having attache sitting on seat No. 11. On being asked, he told his name as Ratanlal (accused-appellant). Thereafter, accused-appellant was alighted from the Bus and PW 4 Gajsingh informed PW 10 Rafiq Mohd. Dy.S.P. on telephone about the incident and in the meanwhile, PW 4 Gajsingh took the accused-appellant alongwith attache and motbir witnesses to the Police Chowki Badodiya. On receiving this information, PW 10 Rafiq Mohd. proceeded in a Government Jeep and reached the Police Chowki Badodiya where he found PW 4 Gajsingh, PW 1 Harish Chandra, PW 5 Fateh Singh and PW 6 Shankarlal and two motbir witnesses, namely, PW 2 Purshottamlal and PW 3 Guruvachan Singh and accused-appellant sitting there. The accused-appellant was having attache and on being asked by PW 10 Rafiq Mohd. to whom this attache belonged, the accused- appellant told that it was his and he was further asked whether this attache contained contraband opium, but accused-appellant replied in the negative. Then, accused-appellant was told by PW 10 Rafiq Mohd. The accused-appellant was having attache and on being asked by PW 10 Rafiq Mohd. to whom this attache belonged, the accused- appellant told that it was his and he was further asked whether this attache contained contraband opium, but accused-appellant replied in the negative. Then, accused-appellant was told by PW 10 Rafiq Mohd. that "He is Dy.S.P. and Gazetted Officer and he has full doubt that this attache contains contraband opium, therefore, it is necessary to search this attache and if accused-appellant wanted to go before the Magistrate, he is free to go" and upon this, accused-appellant replied that he can be searched by PW 10 Rafiq Mohd. Thereafter, in the presence of PW 2 Purshottamlal and PW 3 Guruvachan Singh and other police officials, key of the attache was demanded from the accused-appellant, but the accused-appellant told that he had thrown it away and, thereafter, lock of the attache was opened through an iron rod and on opening, four polythene bags containing black substance and two small bags were found in the attache and on smelling, it was assessed that they all contained contraband opium. Then, PW 1 Harishchandra weighed all the bags and on weighing, weight of bag No. 1 2kg. 50grms., bag No. 2/2kg. 750 grms., bag No. 3 lkg. 950grms., bag No. 4.1 kg. 650grms., bag No. 5 2kg. 400grms., and bag No. 6 190grms., was found. Out of five bags, two samples of 30 grams. each were taken from each bag and sealed on the spot and a they were marked as A/1, A/2, B/1, B/2, C/1, C/2, D/1 D/2 and E/1 and E/2 respectively and the remaining opium contained in each bag was also sealed and marked as A, B, C, D & E respectively. All the articles recovered from the accused-appellant were sealed on the spot and deposited in the Malkhana by PW 4 Gajsingh and they were received by PW 9 Rajendra Singh. The fard of search and seizure Ex.P/1 was prepared on the spot by PW 10 Rafiq Mohd. Thereafter, samples A/1, B/1, C/1, D/1 & E/1 were sent for chemical analysis to FSL through PW 8 Vasudeo, who deposited them in the FSL at Jaipur and receipt of depositing them in FSL is Ex.P/ 7. The fard of search and seizure Ex.P/1 was prepared on the spot by PW 10 Rafiq Mohd. Thereafter, samples A/1, B/1, C/1, D/1 & E/1 were sent for chemical analysis to FSL through PW 8 Vasudeo, who deposited them in the FSL at Jaipur and receipt of depositing them in FSL is Ex.P/ 7. The report of FSL is Fx.P/4, where it has been stated that sample contained in each of the packets marked A-1 to E-1 gave positive tests for the chief constituents of the coagulated juice of opium poppy having 5.15% (five point one five per cent), 1.61 (one point six one per cent), 8.46% (eight point four six per cent), 1.61% (one point six one per cent) and 5.09 (five point zero nine per cent) morphine respectively. After usual investigation, police submitted a challan against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session and, thereafter, the case was transferred to the learned Special Judge, NDPS Cases, Banswara. On 14.9.1993, the learned Special Judge framed charge under section 8/18 of the NDPS Act against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 10 witnesses and some documents were got exhibited. Thereafter, statement of the accused-appellant under section 313 Cr.P.C. was recorded. After conclusion of the trial, the learned Special Judge, NDPS Cases, Banswara, through his judgment and order dated 10.7.1995 convicted the accused-appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as stated above holding inter alia : 1. That in the present case, compliance of the provisions of Section 50 of the NDPS Act has been made by the prosecution. 2. that no case of tampering with the seal is made out. 3. That the prosecution has proved its case beyond reasonable doubt against the accused-appellant or the offence under section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 10.7.1995 padsed by the learned Special Judge, NDPS Cases, Banswara, the present appeal has been filed by the accused-appellant. 3. In this appeal, the following submission have been made by the learned counsel for the accused-appellant : 1. Aggrieved from the said judgment and order dated 10.7.1995 padsed by the learned Special Judge, NDPS Cases, Banswara, the present appeal has been filed by the accused-appellant. 3. In this appeal, the following submission have been made by the learned counsel for the accused-appellant : 1. That in the present case, no compliance of the provisions of Section 50 of the NDPS Act has been made by the prosecution, as PW 10 Rafiq Mohd. has mentioned that he is a Gazetted Officer and no specific question was put to the accused-appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and thus, finding of the learned Special Judge in this respect are liable to be set aside. 2. That no separate seal has been taken while affixing the seal on the spot and specimen seal was not sent alongwith the samples to the FSL. Further, there is no evidence that articles seized from the accused-appellant were kept in proper custody. Malkhana register has not been produced and no letters through which the samples were sent from the Malkhana to SP Office and from SP Office to FSL, Jaipur have been exhibited and to whom seal H.C.S. belongs, it is not clear and thus, linking evidence is missing in the present case. 3. That there are material omissions and contradictions between the statements of prosecution witnesses pertaining to search and seizure and thus, case of the prosecution is doubtful. Hence, it was prayed that this appeal be allowed and the accused-appellant be acquitted of the charge framed against him. 4. On the other hand the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Banswara. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.Points No. 1 & 3 : 6. Since point Nos. 1 & 3 are inter connected with each other, they are being considered together. 7. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.Points No. 1 & 3 : 6. Since point Nos. 1 & 3 are inter connected with each other, they are being considered together. 7. So far as the question whether the provisions of Section 50 of the NDPS Act are mandatory or not is concerned, on this aspect there are many authorities of the Hon'ble Supreme Court where it has been held that provisions of Section 50 of the NDPS Act are mandatory and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial. In this respect, the latest judgment of the Hon'ble Supreme Court in Ahmad v. State of Gujarat, JT 2000 (SC) 416 may be seen. 8. The question which is to be considered is whether in the present case, compliance of Section 50 of the NDPS Act has been made or not. 9. PW 4 Gajsingh was SHO, Police Station Kalinjara on 28.4.1993 and this witness has stated in his statement that he received a secret information that some person was carrying contraband opium with him in the Bus and, thereafter, he reached the Bus Stand alongwith the other police officials and motbir witnesses PW 2 Purshottamlal and PW 3 Guruwachan Singh as soon as the Bus reached, he entered in the Bus alongwith Fateh Singh, PW 5, Narain Singh and two motbir witnesses PW 2 Purshottamlal and PW 3 Guruwachan Singh and on seat No. 11, one person was sitting and he was having attache lying on his legs and on being asked, he told his name as Ratanlal (accused-appellant) and, thereafter, accused-appellant was alighted from the Bus by PW 4 Gajsingh and PW 4 Gajsingh informed PW 10 Rafiq Mohd. on telephone about the incident and in the meanwhile, accused-appellant alongwith attache was taken from the Bus Stand to Police Chowki along with Motibir witnesses and, thereafter, PW 10 Rafiq Mohd. came there in his Jeep. He further stated that PW 10 Rafiq Mohd. asked accused-appellant if he wanted, he could be brought before the Magistrate. Upon this, accused-appellant stated that there was no necessity and his search could be made by PW 10 Rafiq Mohd. came there in his Jeep. He further stated that PW 10 Rafiq Mohd. asked accused-appellant if he wanted, he could be brought before the Magistrate. Upon this, accused-appellant stated that there was no necessity and his search could be made by PW 10 Rafiq Mohd. himself and, thereafter, key of the attache was demanded from the accused-appellant, but he told that he has thrown away the key. Then, with the help of one iron rod, accused-appellant himself opened the attache and in that opium as stated above was recovered and the same was sealed. This witness has admitted the following facts in his cross-examination : 1. That it is correct to say that before Dy. SP PW 10 Rafiq Mohd. came, accused-appellant was brought from Bus Stand to Police Chowki Badodiya. 2. That when PW 10 Rafiq Mohd. asked accused-appellant whether he wanted to be searched before Magistrate, for that no separate memo was prepared. 3. That accused-appellant himself opened the attache with the help of iron rod. 4. That on the recovered opium, seal of HCS was put, but it is also correct that on that day, at the police station Kalinjara, there was no person named Harish Chandra Singh. 10. PW 10 Rafiq Mohd., who was Dy.SP and present at the time of search at the police chowki, has stated in his statement that he put the question to the accused-appellant that if he wanted, search could be made before Magistrate, but accused-appellant denied and he was searched by him. He has further stated : 1. That attache in question was opened by him and not by the accused-appellant. 2. That for compliance of Section 50 of the NDPS Act, no separate memo was prepared. 3. That he did not ask the question about the Gazetted Officer as he himself was Gazetted Officer on that day. 4. That he did not use his seal. 5. That Ex.P /1 fard of search and seizure was prepared by some police official, but he does not know his name. 11. PW 3 Purshottamlal and PW 4 Guruwachan Singh both have stated that they did not go there at the Bus Stand, but they were called at the police chowki, though the statement of PW 4 Gajsingh is otherwise. 12. 11. PW 3 Purshottamlal and PW 4 Guruwachan Singh both have stated that they did not go there at the Bus Stand, but they were called at the police chowki, though the statement of PW 4 Gajsingh is otherwise. 12. On the contrary, PW 5 Fateh Singh and PW 6 Shankarlal, who were present at the time of search, have stated that PW 10 Rafiq Mohd., asked the question to the accused-appellant whether he wanted to be searched before the Magistrate or Gazetted Officer. 13. In my considered opinion, in this case, the compliance of the mandatory provisions off Section 50 of the NDPS Act in its letters and spirit cannot, be held to be proved. From the evidence just discussed above, it is very much clear that no separate memo was prepared by PW 10 Rafiq Mohd. for compliance of Section 50 of the NDPS Act and this Court is aware that it is also not necessary, but question which was put by PW 10 Rafiq Mohd. to accused-appellant was only in the manner that if he wanted, he could be searched before Magistrate and not in the full term as prescribed under section 50 of the NDPS Act. He has further stated that he himself was a Gazetted Officer. Therefore, he did not add the words `Gazetted Officer' while putting the question to accused- appellant. Thus, the whole assessment of this proceedings that can be drawn is that since PW 10 Rafiq Mohd., Dy.SP was himself Gazetted Officer, therefore, he took this aspect lightly and in other words, he simply asked the question about Magistrate only and he did not tell necessity of putting question about Gazetted Officer as he himself was Gazetted Officer. In this respect, the decision of the Hon'ble Supreme Court in Ahmad v. State of Gujarat (supra) may be referred to, where it has been held : "Sections 50, 41, 42 - Compliance - Search taken by a "Gazetted Officer" - If the accused still has the right to be informed about his right to be searched before a Gazetted Officer or Magistrate Accused himself wanting to be searched before Gazetted Officer or Magistrate Request declined. Held that there was infraction of Section 50. Even if the officer searching the accused himself is a Gazetted Officer, right of accused cannot be denied. Conviction set aside." 14. Held that there was infraction of Section 50. Even if the officer searching the accused himself is a Gazetted Officer, right of accused cannot be denied. Conviction set aside." 14. From the above ruling, it appears that even the person searching might be a Gazetted Officer, the right of accused given under section 50 of the NDPS Act cannot be denied to him and compliance in the full language asking whether he wanted to be searched before the Magistrate or Gazetted Officer is must and this thing is missing in the present case. 15. On this point, the decision of the Hon'ble Supreme Court in Saiyad Mohd. Saiyad Umar Saiyed & Ors. v. State of Gujarat, 1995 Cr.L.R. (SC) 266 may also, be referred to where following observations have been made : "Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under section 114, Illustration (e) of the Indian Evidence Act, 1872. By reason of Section 114 a Court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case". It may presume "(e) that judicial and official acts have been regularly performed". There is no room for such presumption because the possession of illicit articles under the NDPS Act has to be satisfactorily established before the Court. The fact of seizure thereof after a search has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established." 16. The above observations also support the view that in the present case, compliance of Section 50 of the NDPS Act has not been made. 17. Apart from this, as stated above, there are omissions and contradictions in the statement of prosecution witnesses, who were present at the time of search. PW 5 Fateh Singh and PW 6 Shankarlal have stated about this aspect taking into consideration the full provisions of Section 50 of the NDPS Act, though the statements of the other witnesses are otherwise. 18. Another aspect which renders the search in the present case doubtful is that PW 10, Rafiq Mohd., who was Dy. SP at the relevant time, categorically states that he himself opened the attache by putting iron rod in it, though other witnesses say that it was accused-appellant himself, who opened the lock of the attache. This is a very material contradiction among the statements of the witnesses and the statement of PW 10 Rafiq Mohd. and from this point of view also, the manner in which search has been conducted, becomes doubtful. 19. Not only this, PW 2 Purshottamlal and PW 3 Guruwachan Singh, who are motbir witnesses, have clearly stated that they did not go to the Bus Stand and they were asked to go to the police chowki, where accused-appellant was also there, but PW 4 Gajsingh and some other witnesses have stated that these two motibr witnesses were also present at the Bus Stand. From this point of view also, the case of the prosecution is not straightforward. 20. From this point of view also, the case of the prosecution is not straightforward. 20. Hence, for the reasons stated above, it is held that the mandatory provisions of Section 50 of the NDPS Act in its letter and spirit have not been complied with by the prosecution in the present case, as a result whereof, whole trial stands vitiated and on this ground alone, accused-appellant is entitled to acquittal. Thus, the findings of the learned Special Judge in this respect are liable to be set aside.Point No. 2 : 21. In this case, there is no dispute on the point that Malkhana register has not been produced, nor specimen seal was taken on separate paper, nor there is, evidence that specimen seal was sent to FSL along with the samples. Not only this, letter by which the samples were sent to SP office for sending them to FSL has not been produced and similarly, letter of SP through which these samples were sent to FSL, Jaipur has also not been got exhibited. There is also in evidence that only articles 1 to 5 were got exhibited during trial and at the most they may be second samples of 30 grms. each and rest opium which was marked A to E has not been produced. 22. In the absence of malkhana register, it cannot be said whether entries of the articles were made in the malkhana register or not and whether these articles remained intact or not. 23. The search and seizure has been conducted by PW 10 Rafiq Mohd. in presence of PW 4 Gajsingh, but seal of both of them has not been affixed on relevant documents and articles seized, but seal of HCS has been affixed. It creates doubt as to whom this seal belongs. 24. Moreover, PW 10 Rafiq Mohd., who got prepared Ex.P /1 fard of search and seizure, is not in a position to say who prepared it. Thus, whole proceedings have been conducted by PW 10 Rafiq Mohd. so lightly and this also creates doubt on the prosecution story in respect of search and seizure. 25. 24. Moreover, PW 10 Rafiq Mohd., who got prepared Ex.P /1 fard of search and seizure, is not in a position to say who prepared it. Thus, whole proceedings have been conducted by PW 10 Rafiq Mohd. so lightly and this also creates doubt on the prosecution story in respect of search and seizure. 25. Hence, from the evidence on record, it can be so that the article seized from the accused-appellant were not kept in proper custody and proper forum and the evidence in this respect produced by the prosecution is not satisfactory and all the articles seized have not been produced in the Court. Hence, the findings of the learned Special Judge that these articles were kept in proper custody and proper forum cannot be maintained and are liable to be set aside. This aspect also makes the case of the prosecution doubtful. 26. For the reasons stated above, the prosecution has not been able to prove its case beyond reasonable doubt against accused-appellant by cogent and reliable evidence and thus, the findings of the learned Special Judge convicting accused-appellant under section 8/18 of the NDPS Act liable to be set aside and he is entitled to acquittal.In the result, the appeal filed by the accused-appellant-Ratan Lal is allowed and the impugned judgment and order dated 10.7.1995 passed by the learned Special Judge, NDPS Cases, Banswara are set side and the accused-appellant is acquitted of the charge under section 8/18 of the NDPS Act.Since accused-appellant-Ratan Lal is in jail, he be released forthwith, if not required in any case.Appeal allowed. *******