JUDGMENT 1. - This appeal is directed against the judgment of conviction and order of sentence dated 8th March, 2001 passed by learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 24/99 whereby accused appellants were convicted for offence under Section 8/18 of the Narcotic Drugs & Psychotropic Substances Act (for short 'NDPS Act') and sentenced each of them to 10 years rigorous imprisonment along with fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo two & half years' imprisonment. 2. The concise relevant facts of the case are that at 11AM on 17.3.1999, Surendra Singh, SHO, Police Station, Rani (PW-3) received a secret information Ex.P-7 by telephone that two persons of 'Raika' caste, one of whom is young, wearing white Dhoti, black sweater and 'Chundri' headgear and the other is wearing red colour turban, white 'Angarkhi' and Dhoti as also a sheddy colour coat and both having a black blanket with red stripes; were having opium tied in their Lungi and have proceeded from Nadol to Barkana, if apprehended urgently, narcotic can be recovered. 3. Upon above information, PW-3 Surendra Singh called two Motbirs-PW-1 Khilafat Khan and PW-4 Habib Khan and proceeded towards the site where he saw two persons coming from Nadol side. They were coming through fields. They were surrounded by the raiding party and after giving notices Ex.P-1 and P-2, under Section 50 of the Narcotic Drugs And Psychotropic Substances Act, search of their person was conducted by PW-3 Surendra Singh whereupon vide seizure memos Ex.P-3 and Ex.P-4, from 'Lungi' in possession of Saroopa Ram as also of Faglu Ram, one kilogram opium from each accused was recovered. They were not having license to carry that much narcotic and therefore, same was seized. Samples from each lot, weighing 30 gms were taken out and sealed then and there. Remaining contraband was also sealed separately. Accused persons were put under arrest. 4. The samples so seized and sealed were sent in sealed condition to the Forensic Science Laboratory through PW-5 Champa Lal, Constable, whereupon report Ex.P-19 was received, which indicated that the samples were found containing 1.90% morphine and it was opium. 5. After usual investigation, both the accused appellants were challaned and charged in the trial court. Upon their claiming trial, 7 witnesses were examined on behalf of the prosecution. 5. After usual investigation, both the accused appellants were challaned and charged in the trial court. Upon their claiming trial, 7 witnesses were examined on behalf of the prosecution. In their statements given under Section 313, Criminal Procedure Code, both the accused denied all incriminating evidence appearing against them and pleaded that they have been falsely implicated and that prosecution witnesses were telling a lie. 6. PW-1 Smt. Ganga was examined in defence to prove that both the accused appellant were real brothers and she was is their mother and that they were apprehended from their residential house situated at Barkana. Thereafter, learned trial court has convicted and sentenced the accused appellant, as stated above. 7. Mr. Rathore, learned Counsel for accused appellants has assailed the impugned judgment on many counts. First was that mandatory provisions of Section 50 of the Act have not been complied with though Exs. P-1 and P-2 are memos given to Faglu Ram and Sarupa Ram respectively, given under Section 50 of the Act and though it has also been stated therein that if accused persons desire, their person can be searched before a Magistrate or a Gazetted Officer yet nowhere it has been mentioned in Ex.P-1 or Ex.P-2 that accused persons were having a right of being searched in front of a Magistrate or Gazetted Officer. Nowhere it has been either written in Ex.P-1 or Ex.P-2 or stated by PW-3 Surendra Singh, SHO, that these accused persons, before the search, were informed about such a right given under Section 50 of the Act. Had they been informed about the above right, perhaps they might have opted to have been searched before a Magistrate or a Gazetted Officer. 8. Be that as it may, simply because accused persons were not informed of their right given under Sub-section (1) of Section 50 of the Act, that by itself does not vitiate the trial. At the most some prejudice may be caused to the accused persons. Hon'ble Apex Court in locus classicus pronouncement of State of Punjab v. Baldev Singh, 1999 (6) SCC 172 , has held so, which has subsequently been followed by the Apex Court in Ahmed v. State of Gujarat, AIR 2000 SC 2790 ; Abdul Rahim Ibrahim Mansoori v. State of Gujarat JT 2001 SC 471 and off late, in Kollutumotil v. State of Kerala 2001(1) EFR 262 among others. 9. 9. Even assuming that Exs. P-1 and P-2, so called notice given under Section 50 of the Act may not have apprised accused appellants about their right given under Section 50(1) of the Act, to be searched before a Magistrate or a Gazetted Officer and have not vitiated the trial and only prejudice may be caused to the accused appellants; I have further proceeded to examine other lacuna in the case. 10. Out of two attesting witnesses-PW-1 Khilafat Khan, though a Tailor-master, alleged to be employed by the Police and very much interested in the prosecution yet he has not deposed an iota of fact that any notice in terms of Ex. P-1 and/or P-2 was ever given to either of the accused persons. He also has not stated that apart from notices Ex. P-1 and P-2, even orally, before proceeding to make personal search of the accused appellants, they, were ever apprised about their right of being searched in the presence of a Magistrate or a Gazetted Officer. Even the Public Prosecutor did not care to put specific question about this fact to this witness. Therefore, PW-1 Khilafat Khan has not supported the prosecution version so far as compliance of the mandatory provisions of Section 50 of the Act is concerned. 11. The next attesting witness was PW-2 Habib Khan, who was Head Constable, posted at Police Station, Rani. He too has not stated to the slightest that before proceeding to make personal search of the accused appellants, they were ever apprised that if they so desire, they may be searched in the presence of a Magistrate or a Gazetted Officer. This witness also was not controverted by the Public Prosecutor with regard to above fact and therefore, only PW-3 Surendra Singh, S.H.O. is solitary person, who deposed about compliance of mandatory provisions of Section 50 of the Act. He too has stated that after proceeding towards the site and after apprehending the accused appellants, they were informed that there was a secret information with regard to possession of opium with them and thereafter consent of their search was obtained. This witness has also not stated in his court statement that before proceeding to make personal search of these accused persons they were informed that if they desire, their personal search can be conducted in the presence of a Magistrate or a Gazetted Officer. This witness has also not stated in his court statement that before proceeding to make personal search of these accused persons they were informed that if they desire, their personal search can be conducted in the presence of a Magistrate or a Gazetted Officer. It also has not been deposed by this witness that Ex.P-1 or Ex.P-2, notices were ever given to these accused persons and their signatures have been obtained upon it. Therefore, there was not an iota of evidence before the trial court that mandatory provisions of Section 50 of the Act have been complied with. Even then both the accused persons have been convicted, to which I can not contenance and hold that compliance of mandatory provisions of Section 50 of the Act has not been made, which accused grave prejudice to the accused appellants. 12. There is another glaring infirmity in the case. Articles so prepared at the site, seized and sealed, do not bear either signature and thumb impression of either of the accused appellants neither upon the two samples so taken nor upon remaining material, alleged to be sealed at the site, bear-thumb impressions or signature of the accused appellants. When PW-3 Surendra Singh was examined to the above fact, he stated that Article 1 and Article 2 were control samples and therefore, signature or thumb impression of accused persons were not taken on them. Similarly, on Article 4, which is left-over opium after taking out the samples and was sealed at the site, also does not bear signature or thumb impression of any of the accused nor it bears any signature of PW-3 Surendra Singh. 13. Similarly, samples which were sent to Forensic Science Laboratory through PW-5 Champa Lal were also not proved whether they were also bearing thumb impression or signature of respective accused persons, from whom they were recovered. PW-5 Champa Lal has deposed in the court that the packets which he took from the Police Station to the F.S.L. did not bear seal either of the S.H.O. or of the Police Station. PW-5 Champa Lal has deposed in the court that the packets which he took from the Police Station to the F.S.L. did not bear seal either of the S.H.O. or of the Police Station. The seal which was on the samples and seen by him, was of S.S.B. Thereafter, this witness admitted that he was not given a copy of the memo of specimen seal Ex.P-18, to be taken to F.S.L. According to him, copy of some other memo of specimen seal was given to him, which has not been produced in the trial court. 14. It is revealed from Ex.P-19, which is report issued by the Forensic Science Laboratory, Jaipur that two samples deposited were marked as 'A' and 'D'. Nowhere it has been stated by any of the prosecution witness that samples so deposited by the F.S.L., were having marks 'A' and 'D'. The packet marked 'A' weighed 29.800 gms while packet marked 'D' weighed 33.805 gms. Though test for both the packets gave presence of opium yet without proving that samples so sent to the F.S.L. were same, which were seized and sealed from the accused appellants, present accused appellants can not be held responsible for the same. PW-3 Surendra Singh, S.H.O, has admitted that memo of specimen seal has not been prepared at the site but same was prepared while sending the samples to the F.S.L. According to Section 55 of the Act, samples so taken should have been sealed with the seal of the S.H.O. concerned and thereafter, at the time of depositing the samples in Malkhana, they shall be again sealed with the seal of Police Station. Though above provision was not mandatory yet its non-compliance affects verasity of the prosecution version. In the matter at hand, not only compliance of mandatory provisions of Section 50 of the Act was not proved to be complied with and the attesting witnesses so associated, though were either Head Constable of Police or they are their tailor, even then they have not supported the prosecution version in the court. 15. The trial court has not taken care to correctly appreciate the factual and legal position involved in the case and in a casual and cavalier manner, held the accused appellants guilty. 15. The trial court has not taken care to correctly appreciate the factual and legal position involved in the case and in a casual and cavalier manner, held the accused appellants guilty. I find impugned judgment manifestly erroneous because court below has not appreciated the evidence in right perspective, which lacks coherence and its evaluation of the evidence is such which defies logic. Therefore, accept this appeal, set aside the conviction and sentence awarded by the trial court and acquit the accused appellant. They are in jail and if not required in any other case, they be released forthwith.Appeal allowed. *******