JUDGMENT - S.S. PARKAR, J.:--- These two appeals are preferred by original accused Nos. 2 and 3 respectively against the judgment and order dated 27th March 1998 delivered by the Special Judge under the NDPS Act and the Addl. Sessions Judge, Greater Bombay in NDPS Special Case No. 583 of 1996 whereby both these appellants, original accused Nos. 2 and 3 were convicted under section 8(c) read with section 20 of the NDPS Act and sentenced to RI for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer RI for three months. 2. In all there were three persons accused in the above Special Case in respect of two seizures of Hashish and arms and ammunitions which took place on 31st August 1996 and 1st September 1996 at two different places in the City of Bombay. On 31st August 1996 160.925 K.Gms. of Hashish along with one pistol, 306 live cartridges and five empty magazines were seized from the shop called Xerox Corner situated at 357/A, Vakilwala Building, Samuel Street, Mumbai 400 009 where the original accused No. 1, who was acquitted, was present. Pursuant to the information given by accused No. 1, 5.077 K.Gms. of Hashish was seized each from the persons of accused Nos. 2 and 3 i.e. the present appellants near the sign board of Mumbai Malvahatuk Tempo Mahasangh, Sewri Railway Phatak, Sewri Cross Lane, Mumbai 400 015 near Datar Medical Store. Thus the total quantity of Hashish seized from the three accused persons was 171.079 Kgs. First of the above seizures was made pursuant to the information received by Sr. P.I. Dhavle P.W. 8 on 31st August 1996 at about 1.45 p.m. i.e. 13.45 hours through his informant that huge quantity of Hashish had been stored at Xerox Corner and was likely to be disposed of. P.I. Dhavle reduced the said information into writing in information book which is at Exhibit 27 and communicated the same to D.C.P. and A.C.P. i.e. his immediate superiors. P.I. Dhavle asked P.S.I. Gokhale P.W. 1, attached to the Narcotic Cell, to produce two persons to act as panch. Accordingly two panchas were called who were informed about the purpose for which they were called. Thereafter pre trap panchanama was prepared in the office and the station diary entry was made at Sr. No. 18 which is at Exhibit 31. Accordingly two panchas were called who were informed about the purpose for which they were called. Thereafter pre trap panchanama was prepared in the office and the station diary entry was made at Sr. No. 18 which is at Exhibit 31. Thereafter the raiding party consisting of the Police Officers, constables and panch witnesses left the Narcotic Cell in two vehicles at 17.50 hrs. They reached the Xerox Corner when original accused No. 1 was present there. His name and particulars were asked and he was informed about the information received by the officers about the concealment of Hashish. Accused No. 1 was also told about his right to be searched in the presence of Magistrate or a Gazetted Officer if he so desired and that Sr. Police Inspector Tayde and P.I Dhavle, P.W. 8 and P.I. Rade were the Gazetted Officers present at the spot. The accused No. 1 having declined the offer the shop was searched and the aforesaid contraband consisting of 160.925 K.Gs. of Hashish and one pistol and cartridges etc. were found which were seized under the panchanama. All the seized contraband was taken to the police station along with accused No. 1. The samples of Hashish were taken which were sealed. F.I.R. came to be lodged which is at Exhibit 16. The panchanama of seizure is at Exhibit 18. The offence was registered under C.R. No. 129/96 pursuant to the F.I.R. lodged by P.W. 1 Gokhale who was a member of the raiding party. 3. Pursuant to the interrogation of the original accused No. 1 in the morning of 1st September, 1996 at about 8-30 a.m. P.W. 8 P.I. Dhavle learnt that the present appellants i.e. accused Nos. 2 and 3 used to meet each other every Sunday between 10.30 and 11.00 a.m. near the Datar Medical Stores, at Gate No. 7, Arab Building and if they knew about the said information they might abscond and the contraband in their possession may not be traced. He had also given description of these two accused persons. That information was reduced to writing in information book at Sr. No. 66 and is Exhibit 38. Copy of the said information reduced to writing was sent to superior officer. Pursuant to the direction given by P.I. Dhavle, P.S.I. Gokhale, P.W. 1 procured two panchas who were told about the purpose for which they were called. That information was reduced to writing in information book at Sr. No. 66 and is Exhibit 38. Copy of the said information reduced to writing was sent to superior officer. Pursuant to the direction given by P.I. Dhavle, P.S.I. Gokhale, P.W. 1 procured two panchas who were told about the purpose for which they were called. Pre trap panchanama was prepared in the office after making station diary entry at Sr. No. 5 which is Exhibit 40. Police party then proceeded to Sewri Railway Phatak along with the panchas. After they reached near Sewri Railway Phatak and after tracing Datar Medical Store, trap was arranged. Around 11.45 a.m. on the said date initially accused No. 2 resembling the description given by accused No. 1 came from Sewri Cross Road holding two bags in his hand. He waited near Datar Medical Store. In a short time another person i.e. accused No. 3 resembling the description given by accused No. 1 came there from Railway Cross Road side and met accused No. 2. Accused No. 2 handed over one of the bags he was carrying in his hand to accused No. 3 and thereafter both of them started going towards Sewri Railway Phatak. When they reached near Mumbai Malvahatuk Tempo Mahasangh Board P.I. Dhavle gave signal to the raiding party and accordingly the members of the raiding party surrounded the said two accused. P.I. Dhavle disclosed his identity to the accused persons and after enquiring about their names and addresses they were informed about the information received by the police about them regarding possession of Hashish. They were told that police wanted to take their personal search as they suspected that they were in possession of Hashish and were informed that they had a right to get themselves searched in the presence of any Gazetted Officer or a Magistrate. They were further informed that Sr. P.I. Dhavle himself was a Gazetted Officer. Both the accused declined the offer and showed their willingness to get themselves searched by the police. On being asked by P.W. 8 Dhavle both the accused gave writings which are at Exhibits 41 and 42 waiving their right to be searched in the presence of a Gazetted Officer or a Magistrate. P.I. Dhavle himself was a Gazetted Officer. Both the accused declined the offer and showed their willingness to get themselves searched by the police. On being asked by P.W. 8 Dhavle both the accused gave writings which are at Exhibits 41 and 42 waiving their right to be searched in the presence of a Gazetted Officer or a Magistrate. On search each of the two accused were found holding one cloth carry bag which was containing transparent polythene packet with brownish black coloured sticky substance in the form of five slabs in rectangular shapes. All the slabs were identical. When some substance from the said slab was tested on kit it gave positive result for Hashish (Charas). Each slab was weighed and was found to be 1.025 kgs. in weight. Two samples of 24 grams each were drawn from each of the packets which was kept separately. The bulk was marked "P" but the sample packets were marked as "P-1" and "P-2" in respect of accused No. 2 and "T", "T-1" and "T-2" in respect of contraband seized from accused No. 3. Apart from the said contraband carried in the bags, on personal search a sum of Rs. 200/- was found with accused No. 2 and sum of Rs. 120/- was found with accused No. 3. The amount of Rs. 200/- was taken charge of from accused No. 2 and marked "R" while his cloth bag was marked "S". Sum of Rs. 120/- recovered from accused No. 3 was marked as "U" and the empty cloth bag recovered from accused No. 3 was marked as "V". All the aforesaid seizures were affixed with labels bearing signatures of panch witnesses counter signed by P.W. 8 Dhavle and taken charge of by him. Both the accused declined to put their signatures on the above exhibits. They were put under arrest after explaining to them the grounds of arrest. Panchanama of seizure was drawn which is at Exhibit 20. The same concluded at 14-10 hrs. on that day. The accused along with the seized contraband were brought to the police station and station diary entry was made at Exhibit 45. The special report of search seizure and recovery was forwarded to the D.C.P. on 1-9-1996 which is at Exhibit 46. The seized quantity of first raid was deposited with Sr. P.I. by memo (Exh. on that day. The accused along with the seized contraband were brought to the police station and station diary entry was made at Exhibit 45. The special report of search seizure and recovery was forwarded to the D.C.P. on 1-9-1996 which is at Exhibit 46. The seized quantity of first raid was deposited with Sr. P.I. by memo (Exh. 34) and the seized contraband of the second raid was deposited with him under Memo (Exh. 43). 4. The sample packets were sent to the office of the C.A with P.W. 4 Pargaonkar along with forwarding letter dated 3-9-1990 (Exh. 22). After receiving the report of the C.A. (Exh. 49) and the Ballistic Expert's Report (Exh. 48) sanction was obtained from the D.C.P. under the Arms Act to prosecute the accused persons. After completion of the investigation charge-sheet was filed against accused Nos. 1, 2 and 3 and ten wanted accused on 27-11-1996. 5. On behalf of the prosecution eight witnesses were examined and produced on record the seized articles, the station diary entries, special report, reports of the Ballistic Expert and Chemical Analyser and entries in Muddemal Register at Exhibits 36 and 44. Charges were framed against all the three accused on 5-9-1997. The first charge was framed against all the three accused with regard to the seizure of 31st August 1996 of criminal conspiracy in respect of seizure of 177.079 kgs. of Hashish under section 8(c) read with section 29 of the NDPS Act. A separate charge under section 8(c) read with section 20 of the NDPS Act was framed against each of the three accused being accused Nos. 1, 2 and 3. So far as the appellants are concerned i.e. accused Nos. 2 and 3, the charge was with respect to seizure of 1st September, 1996 of 5.072 Kgs. of Hashish from each of the accused. As regards accused No. 2 there was also charge framed under section 3 read with section 25 (1B) (a) of the Arms Act, 1959 in respect of recovery of a pistol, 306 live cartridges and five empty magazines recovered from the Xerox Corner on 31st August, 1996. All the three accused pleaded not guilty and claimed to be tried. Their defence was of total denial and false implication by the police. All the three accused pleaded not guilty and claimed to be tried. Their defence was of total denial and false implication by the police. So far as accused No. 2 i.e. appellant in Criminal Appeal No. 507 of 1998 is concerned, his defence is that he was picked up by P.I. Dhavle from his house on 31st August 1996 when he was sleeping. In the evening of 1-9-1996 at 4.30 he was taken to the Police Commissioner's Office in a press conference room where the police took the photographs and video shooting of all the three accused along with the contraband. His signatures were obtained by P.I. on 2nd September 1996 on some typed pages. Police also took video shooting on 3rd September 1996. He was also forced to give a writing in Hindi as dictated by P.I. Dhavle. He denied his knowledge about the contraband and stated that he was falsely implicated. Similarly the defence of accused No. 3 i.e. appellant in Criminal Appeal No. 493 of 1998 is that he was picked up from his residence on the night of 31st August, 1996. He has relied on the telegram dated 1st September, 1996 sent to the Police Commissioner by his father stating therein that accused No. 3 was taken by the Police from his residence in the night of 31st August, 1996 and his whereabouts were not known nor produced in any Court. He also stated that he was taken to the Police Commissioner's office for photographs on 1st September, 1996 and for video shooting on 3rd September, 1996. 6. After consideration of the entire evidence on record the learned Special Judge by his Judgment and Order dated 27th March, 1998 acquitted the accused No. 1 in respect of the seizure which took place from Xerox Corner on 31st August, 1996 as he had held that the conspiracy charge was not proved or established by the prosecution. Accused No. 1 was also acquitted regarding seizure on the ground that his possession of the contraband seized on 31st August 1996 was not proved. As the conspiracy charge framed under section 29 of the NDPS Act against all the accused persons had failed, these appellants were also acquitted of that charge. Accused No. 1 was also acquitted regarding seizure on the ground that his possession of the contraband seized on 31st August 1996 was not proved. As the conspiracy charge framed under section 29 of the NDPS Act against all the accused persons had failed, these appellants were also acquitted of that charge. Accused No. 2 is also acquitted of the charges under section 3 read with section 25 of the Arms Act in respect of seizure of one pistol, live cartridges and empty magazines seized on 31st August 1996 from the Xerox Corner. Each of these two appellants i.e. accused Nos. 2 and 3 was however convicted for offence under section 8(c) read with section 20 of the NDPS Act and, therefore, sentenced to RI for ten years and to pay a fine of Rs. 1,00,000/- in default to suffer RI for three months. The said order of conviction and sentence recorded by the Special Judge against these two appellants is under challenge in these two appeals. Since the evidence is common and both the accused were prosecuted in one Sessions Case in respect of the seizure of the same date, time and place and were tried together, both these appeals are being disposed of by this common judgment. 7. On behalf of the appellants the challenge was made on various grounds. Firstly the defence Counsel tried to establish that the appellants were taken by the Investigating officer P.I. Dhavle from their respective residences in the mid-night between 31st August and 1st September, 1996 and a farce has been created with regard to the alleged seizure of Hashish from them in the forenoon of 1st September, 1996. The second contention raised on behalf of the defence is that there is non-compliance with section 42 of the NDPS Act and, therefore, the seizure is suspect and the conviction and sentence of the appellants is vitiated. Thirdly it was argued that the information pursuant to which the seizure is alleged to have been effected was not disclosed to the appellants. Lastly it was contended that there was non-compliance with the provisions of section 50 of the NDPS Act and, therefore, the investigation, conviction and sentence is vitiated and, consequently, the appellants are entitled for acquittal. Thirdly it was argued that the information pursuant to which the seizure is alleged to have been effected was not disclosed to the appellants. Lastly it was contended that there was non-compliance with the provisions of section 50 of the NDPS Act and, therefore, the investigation, conviction and sentence is vitiated and, consequently, the appellants are entitled for acquittal. I was taken through the evidence and Exhibits on record and I am of the view that there was non-compliance with the provisions of section 50 of the NDPS Act and, therefore, the conviction and sentence of the appellants is vitiated. However, while arguing the first contention the Counsel had also argued at length that the seizure cannot be believed as it was tampered with hence I propose to deal with that aspect also. 8. So far as the contention as regards non-compliance with section 50 of the NDPS Act is concerned, the law on the subject is well settled by the various judgments of the Apex Court which have been followed by this Court. Since the conviction under the provisions of the NDPS Act is attendant with severe punishment, where minimum sentence itself cannot be less than 10 years imprisonment and a fine of Rs. 1,00,000/- which was awarded in this case, the Legislature has tried to place certain safeguards to ensure that the wide powers with which the investigating agency is invested with are not abused. Those safeguards are laid down, inter alia, under sections 42,43,50,55 etc. Under section 50 the duty is cast on the officers who are authorised to take search of the person suspect of contravening the provisions of this Act to 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 for the purpose of taking search, if so required by the person suspect in possession of the contraband. This obligation on the part of the concerned officer is interpreted by catena of judicial dicta to mean that the concerned officer is obliged to inform such person that if he so requires he has a right to be searched in the presence of nearest Gazetted Officer or the Magistrate. This obligation on the part of the concerned officer is interpreted by catena of judicial dicta to mean that the concerned officer is obliged to inform such person that if he so requires he has a right to be searched in the presence of nearest Gazetted Officer or the Magistrate. The prosecution claims that obligation was discharged when the accused were informed before their search that if they so wished, they could be taken to the nearest Gazetted Officer or a Magistrate for the purpose of search but when this offer was made the same was declined by the accused by executing writings which are placed on record at Exhibits 41 and 42. P.W. 1 P.S.I. Gokhale, who was a member of the raiding party, deposes in para 20 of his deposition that Sr. P.I. Dhavle i.e. P.W. 8 who is the Investigating Officer informed the accused i.e. Accused Nos. 2 and 3 individually in Hindi that under the NDPS Act they have got a right to get themselves searched in the presence of a Gazetted Officer or a Magistrate and if they so desired that can be arranged. Both those persons declined the said offer. He further deposes that Sr. P.I. Dhavle also informed that he himself was a Gazetted Officer present on the spot. Both the accused then informed that they had no objection to be searched by the members of the raiding party. When P.I. Dhavle further asked them if they are willing to give in writing that they were apprised of their right and were waiving the same, both of them showed willingness and when they were provided by P.I. Dhavle with two papers, both of them wrote in their own hand writing in Hindi about the appraisal of their right and their waiving the said right. On those writings they put their signatures which the panch witnesses also signed and counter signed by P.I. Dhavle. Then we have the testimony of the Investigating Officer P.W. 8 P.I. Dhavle. P.W. 8 in para 18-B of his deposition states that before taking their search accused Nos. 2 and 3 were informed about their respective rights under the NDPS Act and were asked whether they wanted to take their search before a Gazetted Officer or a Magistrate. Both of them declined. He had introduced himself as a Gazetted Officer. Accused Nos. P.W. 8 in para 18-B of his deposition states that before taking their search accused Nos. 2 and 3 were informed about their respective rights under the NDPS Act and were asked whether they wanted to take their search before a Gazetted Officer or a Magistrate. Both of them declined. He had introduced himself as a Gazetted Officer. Accused Nos. 2 and 3 allowed to be searched in the presence of police and on his request accused Nos. 2 and 3 gave their respective willingness in writing in Hindi which was signed by the accused, the panchas and countersigned by him. The writing of accused No. 2 is at Exhibit 41 and writing of accused No. 3 is at Exhibit 42. So far as the panch witness No. 3 is concerned, he had to be cross-examined by the Special Public Prosecutor as he was not supporting the prosecution case. In para 6 of his deposition when he was being cross-examined by the Special P.P., he stated that the Police Officers told these persons i.e. the accused that under the NDPS Act they had a right to be searched in the presence of a Gazetted Officer or a Magistrate and the accused refused to exercise their offer. He, however, denies that the Police Officer introduced himself as a Gazetted Officer which is contradictory to what has been stated by P.W. 1 and P.W. 8, the Police Officers and the contents of the panchanama. In the cross-examination made on behalf of the defence the panch witness No. 3 has stated in para 17 of his deposition that there was no conversation between the accused and the police and the police did not inform the accused about anything. 9. From the above it is clear that even if it is assumed that what is stated by the Police Officers P.W. 1 and P.W. 8 amounts to substantial compliance with the provisions contained in section 50 of the Act, it is not supported by the independent witness like panch witness as he says that no conversation had taken place between the accused and the police and that police did not inform the accused about anything. Even in the portion of the deposition in para 6 where the panch witness appears to support the Police Officers, he has contradicted them when he stated that the Police Officer did not introduce himself as a Gazetted Officer and did not ask the accused Nos. 2 and 3 to give their decline in writing and that he had not put his signature on any writing. Looking to the severe punishment which is attendant on conviction under the provisions of this Act the courts have insisted firstly that there should be strict compliance with the safeguards provided under the Act like section 50 which is held to be mandatory and secondly such compliance should be supported by independent evidence like the panch or other contemporaneous documentary evidence. For instance in the case of (K. Razak v. State of Kerala)1, reported in 2000 S.C.C. (Cri.) 829 the Apex Court did not accept the version of the Police as regards the compliance with section 50 of the Act from the "ipse dixit of the Police Officer" as none of the independent witnesses supported the version of the Police Officer when he said that no Gazetted Officer or Magistrate as envisaged under section 50 of the Act was called as the appellant accused himself had told that he did not require the presence of any such officer and observed in para 8 of the judgment that the said right cannot be sidelined as a mere formality. The importance of such right and the implication of non-compliance with the same and other allied matters connected with section 50 of the Act have been highlighted by the Constitution Bench of the Apex Court in the case of (State of Punjab v. Baldev Singh)2, 2000(5) Bom.C.R. (S.C.)236 : 1999(6) S.C.C. 172 . It was further observed in para 9 of the said Judgment as follows: "9. In the fact-situation of the case, particularly in the absence of any corresponding entry in any of the Police records it is difficult for us to believe the mere oral vibration made by P.W. 1 that he asked the appellant whether he should require the search to be conducted in the presence of any one of the above officers and that the appellant politely declined the offer." 10. In this case reference can be made to the post seizure panchanama (Exh. In this case reference can be made to the post seizure panchanama (Exh. 20) appearing at page 157 of the paper-book which does not exactly correspond with the version of the Police Officers as regards sequence in which the accused were informed of their right under section 50 of the Act. The statement in this regard appearing in panchanama at pages 160-161 of the paper-book is as follows : "...They were further informed by Sr. P.I. Dhawale that under N.D.P.S. Act, 1985 they have right to get themselves searched in the presence of any Gazetted Officer or Magistrate and if they so desire arrangements will be made accordingly. They were also informed that Sr. P.I. Dhawale himself is a Gazetted Officer present on the spot. Both the above said persons declined the above said offer and showed their willingness to get themselves searched by police. On being requested by Sr. P.I. Dhawale both the above said persons gave in writing on separate sheet of papers about their waiving of right under N.D.P.S. Act and their willingness therefor. We also put our signatures on the said paper sheets." According to the above portion of the seizure panchanama P.I. Dhavle informed the accused that they had a right to be searched in the presence of any Gazetted Officer or Magistrate. In the next breath they were told that Sr. P.I. Dhavle himself was a Gazetted Officer present on the spot. Thereafter the accused seem to have declined the offer and showed their willingness to get themselves searched by the police. This is followed by a request by P.I. Dhavle to give in writing about their waiving of their right. In order to understand the implication of this contemporaneous document it would be expedient to read the contents of Exhibits 41 and 42 appearing at pages 260 and 262 of the paper-book which are the writings executed by the accused Nos. 2 and 3 respectively waiving their right under section 50 of the Act. Those writings executed by the accused were in Hindi but they have been translated by the trial Court in English in paragraphs 51 and 53 of the judgment of the trial Court at pages 682 and 684 of the paper-book. 2 and 3 respectively waiving their right under section 50 of the Act. Those writings executed by the accused were in Hindi but they have been translated by the trial Court in English in paragraphs 51 and 53 of the judgment of the trial Court at pages 682 and 684 of the paper-book. The relevant portion of the writing executed by accused No. 2 in English is as follows : ".........We were also informed that under N.D.P.S. Act we have right to get searched before Gazetted Officer or a Magistrate and police will take us to them. I am also informed that Sr. P.I. Dhavle is Gazetted Officer thereupon I told that I have no objection to be searched by the Gazetted Officer present at the spot and there is no need to approach any other officer or Magistrate." The relevant portion of the writing executed by accused No. 3 in English is as follows: ".....We are also informed that under N.D.P.S. Act we have right to be searched before any Gazetted Officer or a Magistrate and police will take us to them. I am also informed that Sr. P.I. Dhavle present at the spot is Gazetted Officer. However, I say that I have no objection to be searched by Gazetted Officer present here. Therefore, there is no need to approach to any other officer or Magistrate." 11. If we read the aforesaid portion of the panchanama and the relevant portion of the writings obtained from the accused, it gives clear and undoubted impression that what was conveyed to and impressed upon the accused by the Investigating Officer P.I. Dhavle P.W. 8 was that P.I. Dhavle was the Gazetted Officer contemplated under section 50 of the Act in whose presence search could be taken. In other words the impression was created that there would be sufficient compliance with section 50 of the Act if the search was made in the presence of P.I. Dhavle. That, in my opinion, is neither the intent nor the meaning of the provision embodied in section 50 of the Act. In this regard the use of the words, "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", is relevant. That, in my opinion, is neither the intent nor the meaning of the provision embodied in section 50 of the Act. In this regard the use of the words, "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", is relevant. The said section 50 also makes reference to officer duly authorised under section 42 which would show that the Gazetted Officer contemplated under section 50 cannot be the officer who was a member of the raiding party but the reference to the nearest Gazetted Officer must be to a Gazetted Officer other than the member of the raiding party. The person contemplated under sections 41 and 42 who is authorised or empowered to make search and carry investigation is always a Police Inspector who is a Gazetted Officer and if the Legislature had intended that search could be made in the presence of a member of the raiding party who is a Gazetted Officer, it would have so stated and then there was no need to take the person to the nearest Gazetted Officer or to the nearest Magistrate. From the aforesaid wording what was intended by the Legislature was that if the person so required, he should be examined in the presence of an independent Gazetted Officer who was not connected with the raid or who was not party to the search. 12. In this connection reference may be made to the latest decision of the Supreme Court in the case of (Ahmed v. State of Gujarat)3, reported in J.T. 2000(9) S.C. 416. That was a case where the search was taken by the Gazetted Officer who was a member of the raiding party. Accused was not informed of his right under section 50 of being searched in the presence of a Gazetted Officer or a Magistrate but the accused himself had demanded that he should be searched in the presence of another Gazetted Officer or a Magistrate which was not done by the raiding party. Accused was not informed of his right under section 50 of being searched in the presence of a Gazetted Officer or a Magistrate but the accused himself had demanded that he should be searched in the presence of another Gazetted Officer or a Magistrate which was not done by the raiding party. The accused came to be convicted and in his appeal before the Supreme Court it was contended on behalf of the prosecution that the requirement of compliance of section 50 will not arise if a search is going to be made by an empowered officer who happens to be a Gazetted Officer which was negatived by the Apex Court observing in para 6 of the judgment that the said submission was devoid of any substance. In para 4 of the judgment at page 423 of the report the Supreme Court has in unequivocal words observed that for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another Gazetted Officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a Gazetted Officer. It would be desirable to quote relevant observations of the Supreme Court in para 4 of the report at this juncture, which are as under: ".....For the purpose of complying with the provisions of section 50, no differentiation can be made on a plain reading of the language used in section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another Gazetted Officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a Gazetted Officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the Legislature has enacted the safeguard contained in section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the N.D.P.S. Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable." (underlining supplied) 13. The aforesaid observations of the Apex Court leave me in no doubt about the scope and the intent of section 50 of the Act. From the facts narrated above in the instant case and particularly reading the portion of the panchanama (Exh. 20) extracted above and the portion of the writings of the accused quoted above there is no doubt that P.W. 8 P.I. Dhavle, who was the Investigating Officer and member of the raiding party and also a Gazetted Officer, considered himself to be a Gazetted Officer contemplated under section 50, search in whose presence would ensure the compliance with section 50 of the Act and, therefore, conveyed to the accused wrongly that he was a Gazetted Officer contemplated under section 50. It was due to that, that the writings at Exhibits 41 and 42 executed by accused Nos. 2 and 3 in Hindi were obtained as per the dictation given by P.W. 8 which is the case of the accused. Two accused persons not knowing law nor their rights under the law and while being searched by a group of Police Officers would not be in a position to execute the writings of the kind contained in Exhibits 41 and 42 by themselves. The accused themselves have in their 313 statements stated that those writings were obtained by the officer forcibly under his dictation. In answer to question Nos. 324 and 325 in his examination under 313 of Cri.P.C. accused No. 2 has stated that the writing (Exh. 41) was obtained in the office by force. In answer to question No. 356 the accused No. 2 stated that on 2nd September, 1996 P.I. Dhavle took a writing by force and coercion in Hindi as per his dictation and direction. Similar in answer to question Nos. 324 and 325 put to accused No. 3 in his 313 examination, he stated that the said writing i.e. Exhibit 42 was obtained in the office by force. Similar in answer to question Nos. 324 and 325 put to accused No. 3 in his 313 examination, he stated that the said writing i.e. Exhibit 42 was obtained in the office by force. In answer to question No. 356 accused No. 3 states as regards writing at Exhibit 42 that it was dictated in Hindi by P.I. Dhavle which he wrote accordingly and put his signature. He further states that P.I. Dhavle, P.S.I. Gokhale and other staff manhandled him. As stated earlier, there cannot be doubt that the said writings were as per the dictation of the Police Officer wording of which clearly goes to show that the Police Officer himself was under the wrong impression that he was the Gazetted Officer contemplated under section 50 and accordingly conveyed it to the accused wrongly. Thus compliance, if at all was there as regards requirement of section 50, it was done in farce even if it is assumed that it was not obtained forcibly and not in the office of the Narcotic Cell on the following day as stated by the accused but on the spot written by the accused willingly. 14. Thus there is non-compliance with the mandatory provision under section 50 of the Act which, as per the aforesaid judgment of the Supreme Court in the case of Ahmed v. State of Gujarat and the Constitution Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh, 1999(6) S.C.C. 172 is mandatory and an obligation on the empowered officer and his duty to comply with it before conducting the search of the person of the suspect, non-compliance of which renders the search illegal as the suspect was not able to avail of the protection which is in-built in section 50 of the Act. Consequently it renders the recovery of the illicit article suspect and vitiates the conviction and sentence of the accused. 15. Reference may be made to few recent decisions cited before me by the Counsel for the defence which had set aside the order of conviction and sentence of the accused convicted under the provisions of the N.D.P.S. Act for non-compliance with section 50 of the Act. Reliance was placed on the decision of the Division Bench of this Court to which I was a party, in the case of (Mohanlal v. State of Maharashtra)4, reported in 1998(I) Learned Judgments 405. Reliance was placed on the decision of the Division Bench of this Court to which I was a party, in the case of (Mohanlal v. State of Maharashtra)4, reported in 1998(I) Learned Judgments 405. That was a case where three slightly differing versions were given as regards the compliance with section 50 by P.S.I. Sawant, the panch witness and the contents of the panchanama. That was also a case where the Officer told the accused that they had a right to be searched in the presence of Gazetted Officer if they so desired and it was further disclosed to them that P.S.I. Sawant and another Police Officer P.I. Singh who were in the raiding party were also Gazetted Officers, when those two accused persons declined to go before another Gazetted Officer for their search. Holding that there was non-compliance with section 50 it was observed that in substance the officer had told the accused that they had a right to be searched before a Gazetted Officer and he himself being a Gazetted Officer would proceed with the search himself. Dealing with the object of section 50 it was observed as follows : ".........The object of section 50 is clear. It intends to ensure that search, if so required by the accused should be taken in front of an independent and a responsible officer. This independent and responsible officer in section 50 has been mentioned as either a Gazetted Officer or a Magistrate. Even though the raiding party could be accompanied by a Gazetted Officer, surely such a Gazetted Officer would not be an independent or responsible officer contemplated by section 50, as he cannot be considered to be an independent officer. Hence, when the accused is informed that he will be searched in the presence of a Gazetted Officer who is a member of the raiding party, same will not amount to compliance with the provisions of section 50...." 16. The above view has been upheld by the later decision of the Supreme Court in the case of Ahmed v. State of Gujarat referred to above. The aforesaid decision of the Division Bench was followed recently by another Division Bench of this Court (Coram: J.A. Patil P.V. Kakade, JJ.) in Criminal Appeal No. 673 of 1996 decided on 13th September, 2000. The aforesaid decision of the Division Bench was followed recently by another Division Bench of this Court (Coram: J.A. Patil P.V. Kakade, JJ.) in Criminal Appeal No. 673 of 1996 decided on 13th September, 2000. In this case also while informing the accused of their rights under section 50 the officers of the raiding party also told the accused that the concerned officers were Gazetted Officers and on such information the accused persons declined to be searched from the nearest Gazetted Officers or the nearest Magistrate. Holding that it was a case of non-compliance with section 50 the Division Bench had set aside the conviction and sentence recorded against the accused under the provisions of the N.D.P.S. Act in that case. This view was also followed with approval in a very recent decision of the Single Judge of this Court (Coram: A.B. Palkar, J.) in Criminal Appeal No. 160 of 1999 with Criminal Appeal No. 194 of 1999 decided in October 2000. In that case also it was stated in the panchanama that the officers explained the suspect accused of their right of being searched in the presence of a Gazetted Officer or a Magistrate and that the members of the raiding party were also Gazetted Officers. Thereupon the accused agreed for search in the presence of the said Gazetted Officers who were members of the raiding party. 17. On behalf of the prosecution a faint attempt was made by contending that there was sufficient compliance with section 50 of the Act by placing reliance on the decision of the Supreme Court in the case of (Joseph Fernandez v. State of Goa)5, reported in 2000 S.C.C.(Cri.) 300 where it was held that when the suspect is told that if he wishes he may be searched in the presence of a Gazetted Officer or a Magistrate, it amounted to substantial compliance with section 50. The facts of that case and this case are entirely different. There the version of the Police Officer was supported by the panch witness. It was not a case where the members of the raiding party had told the accused that they are also Gazetted Officers and, therefore, were empowered for the purpose of section 50 of the Act as in the present case. Thus the ratio of the above decision, in my respectful opinion, would not be applicable to the instant case. It was not a case where the members of the raiding party had told the accused that they are also Gazetted Officers and, therefore, were empowered for the purpose of section 50 of the Act as in the present case. Thus the ratio of the above decision, in my respectful opinion, would not be applicable to the instant case. Another decision of the Supreme Court relied on behalf of the prosecution by Mr. Kantharia is in the case of (Manohar Lal v. State of Rajasthan)6, reported in 1996(11) S.C.C. 391 . That was a case where the accused was given option specified in section 50 and thereafter he was searched in the presence of a Gazetted Officer. The contention was raised on behalf of the accused that the accused should also be given option to choose whether he wanted to be searched in the presence of a Gazetted Officer or in the presence of a Magistrate which was not given. That contention was rejected by the Supreme Court. Thus the ratio of that decision again would not be applicable to the point in issue in the instant case. 18. From the aforesaid discussion and following the dicta of the Supreme Court and the Division Benches of this Court I have no manner of doubt that the search of these appellants accused was illegal for non-compliance with section 50 of the Act and consequently the recovery of the contraband has become suspect and vitiates the conviction as well as sentence of the accused which is liable to be set aside and the appellants accused are entitled to be acquitted. 19. In view of the aforesaid findings, the other contentions raised in this case need not be dealt with about which I myself was not satisfied. However, as stated earlier it would be desirable to deal with the contention raised on behalf of the accused regarding tampering of the sealed contraband after having been deposited with the concerned authorities and its withdrawal thereafter for the purpose of photographing and video shooting which according to the Counsel for the accused has vitiated the trial itself. However, as stated earlier it would be desirable to deal with the contention raised on behalf of the accused regarding tampering of the sealed contraband after having been deposited with the concerned authorities and its withdrawal thereafter for the purpose of photographing and video shooting which according to the Counsel for the accused has vitiated the trial itself. The said point is required to be considered not for the purpose of giving finding, which is not required in view of my finding on the non-compliance with section 50 of the Act, but for the purpose of cautioning the authorities as the accused No. 1 had been acquitted by the trial Court on the ground that the contraband was tampered with by the Police Officers subsequently for the purpose of photographing and video shooting. 20. Though the large quantity of contraband under the provisions of the N.D.P.S. Act and ammunitions in the form of live cartridges was seized from the shop premises on 31st August, 1996 and the three accused were being prosecuted in respect thereof under the provisions of the N.D.P.S. Act and under the provisions of the Arms Act, 1959 the accused had to be acquitted under the said provisions as the finding has been given by the trial Court that the prosecuting agency had tampered with the seized articles by taking them out from the custody of the authority with whom they were deposited for the purpose of photographing and video recording and for display on television. The trial Court in para 35 of the judgment has observed as follows : "I have no doubt about this recovery (pistol cartridges) from the loft of such huge ammunition, it can not be ignored. It has deleterious effect on the society. It poses threat to the security of the people at large. However, this seriousness of the huge recovery of the ammunition has been taken lightly and casually by the prosecution agency." 21. The defence had brought on record photograph (Exh. 52) which shows the raiding party including P.W. 1 and P.W. 8 P.I. Dhavle, the Investigating Officer standing along with the Commissioner of Police, the Addl. Commissioner of Police, D.C.P. and three accused persons and the Commissioner of Police and Addl. Commissioner of Police holding a slab purportedly of hashish with sealed bundles of contraband placed in the front so also open cartridges. Commissioner of Police, D.C.P. and three accused persons and the Commissioner of Police and Addl. Commissioner of Police holding a slab purportedly of hashish with sealed bundles of contraband placed in the front so also open cartridges. It is observed by the trial Court that the photograph (Exh. 52) has appeared in the press which is admitted by P.W. 8 Dhavle in his deposition. In the judgment it is further observed that the photograph indicates that Deputy Commissioner of Police Mr. Karkare is seen holding pistol and five magazines are placed on the box with cartridges arranged to form alphabets. The cartridges seem to have been arranged in such a way to read 'Crime BR., Mumbai Police'. Even the video cassette of the same which was displayed on television has been produced at Exhibit 54 at the instance of the defence. The said display was made in the office of none other than the then Commissioner of Police, Greater Bombay on 1st September, 1996. The photograph shows three accused sitting on the left side in hand-cuffs. As regards the slab which is held by the Commissioner of Police and Additional Commissioner of Police, is sought to be explained by P.W. 8 P.I. Dhavle to be a dumy slab. However, it was admitted that the ammunition like pistol, live cartridges and the empty magazines which were seized on 31st August, 1996 were opened for the purpose of display and exhibition in the office of the Commissioner of Police, Greater Bombay. This was undoubtedly done at the cost of the public interest and justice in as much as the trial Court had to acquit the accused on that ground. 22. Although under section 55 of the N.D.P.S. Act the seized articles are supposed to be handed over or given in charge of the Officer In-charge of the Police Station for keeping them in safe custody in sealed condition and cannot be removed from there except under the orders of the Magistrate, yet the articles appear to have been removed from the safe custody of the Azad Maidan Police Station without obtaining requisite orders from the Magistrate nor any entry seems to have been made in the concerned register for having withdrawn those articles and for having redeposited them after resealing in the safe custody. It is unfortunate that the Commissioner of Police instead of advising the Officers to desist from such act, the photograph, on the contrary indicates that he enjoyed the said display of the contraband in his presence in his office. The trial Court, therefore, rightly observed that the Prosecuting Agency had taken the huge recovery of the ammunitions very lightly and casually which has ultimately resulted in the acquittal of the accused. Obsessed with the publicity stunt the officers have in the process forgotten their duties under the law and had not even cared to obtain the order of the Magistrate for withdrawing the seized articles from the safe custody and redepositing the same after resealing them as required under the law. As observed earlier even no entry is made in the register and, therefore, the investigation itself was brought under the cloud of suspicion. 23. Having held that there is non-compliance with section 50 of the N.D.P.S. Act I hold that the recovery of the contraband itself from accused Nos. 2 and 3 is suspect and vitiates the conviction and sentence of the accused, since the conviction in this case was based solely on the alleged possession of Hashish which was recovered from the person during search conducted in violation of the provisions of section 50 of the N.D.P.S. Act. 24. In the result both these appeals are allowed and conviction and sentence of both the appellants in the above appeals i.e. Original accused Nos. 2 and 3 recorded by the Special Judge under N.D.P.S. Act and Addl. Sessions Judge, Greater Mumbai in N.D.P.S. Special Case No. 583 of 1996 is hereby quashed and set aside and both the accused are directed to be set at liberty forthwith unless required in any other case. Fine amount, if any, already paid shall be refunded to the accused. Appeals allowed. -----