JUDGMENT 1. - This appeal has been preferred by the accused appeal from Jail against the judgment and order dated 1st December, 1999 passed the by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 252/97, by which he convicted accused appellant for the offence u/s. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced him to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs. one lac, in default of payment of fine, to further undergo six months RI. 2. Since nobody was representing accused appellant as this appeal has been preferred from jail, therefore, this Court vide order dated 28.3.2001 appointed Shri Vineet Jain, Advocate as Amicus Curiae to argue the case on behalf of the accused appellant and he has argued the same. 3. It arises in the following circumstances : On 14.7.1997 at about 11.30 p.m., PW-2 Anil Paliwal made a Parchakayami Ex.P/9 in capacity as CO, Bhilwara stating inter alia that on that day at about 9.40 p.m., he received a secret information on telephone from mukhbir to the effect that one person, by caste Meena, resident of Banswara, had just alighted to Roadways Bus Stand from the Bus coming from Pratapgarh and he was having a Jacket on his shoulder and in that Jacket, there was contraband opium. That information was reduced into writing by PW-2 Anil Paliwal in Ex.P/4 and through PW-5 Krishna Chandra, copy of that information was sent to SP, Bhilwara and thereafter, he alongwith PW-3 Gopal Lal, PW-7 Babu Khan and PW-4 Sitaram proceeded towards the spot and reached Roadways Bus Stand, Bhilwara and he also took two motbirs, namely, PW-9 Satyanarain and PW-11 Chhotu Singh and after some time, they saw the person, as per secret information, near Canteen of Tea and seeing the police, he tried to run away, but he was caught by the police and on being asked, he told his name as Shankarlal (accused appellant) and then PW-2 Anil Paliwal told him that he had contraband opium and for that he was to be searched and PW-2 Anil Paliwal also asked him whether he wanted to be searched before Gazetted Officer or Magistrate and upon this accused appellant gave his consent that he could be searched by PW-2 Anil Paliwal and the fard of consent is Ex.P/5. Thereafter, accused appellant was searched and on search, a jacket (jola) was recovered and in it, four polythene packets were found and on opening, black substance was found in them and on being tasted, it was assessed that it was nothing but contraband opium. Thereafter, opium containing in four packets was weighed and its weight was found to be 4Kg. 200 grms. and for the purpose of .chemical analysis, out of these four packets, small quantity of opium was taken from each packet, which came to 50 grms, and it was kept in a small tobacco box and sealed on the spot and marked as sample All and the remaining opium was also sealed on the spot separately and marked as A. The fard of search and seizure prepared by PW-2 Anil Paliwal is Ex.P/6. The fard of specimen seal is Ex.P/7. The accused appellant was arrested through arrest memo Ex.P/8. The seized articles were given to PW-6 Jagmal Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/13. PW-8 Harsukhram sent a detailed report u/s. 57 of the NDPS Act to SP. Bhilwara through Ex.P/14. Vide letter Ex.P/1, PW-8 Harsukhram, SHO, Police Station Subhash Nagar,Bhilwara sent sample A/1 to SP, Bhilwara through PW-10 Mohd. Sayeed for sending it to FSL, Jaipur and after obtaining forwarding letter Ex.P/2 from SP Office, Bhilwara, PW-10 Mohd. Sayeed deposited the sample A/1 in the FSL, Jaipur and receipt of depositing it in FSL is Ex.P/3. The FSL report is Ex.P/17, which shows that the sample contained in the packet marked Al gave positive tests for the presence of chief constituents of coagulated juice of opium-poppy having 5.32 (Five point three two percent) Morphine. On this parchakayami, PW-8 Harsukhram, SHO Police Station Subhashnagar, Bhilwara chalked out regular FIR Ex.P/11 and after usual investigation, challan was filed against the accused appellant in the Court of Special Judge, NDPS Cases, Bhilwara. On 11.12.1997, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence u/s. 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. In support of its case, the prosecution examined as many as 11 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant u/s. 313 Cr.P.C. was recorded. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. In support of its case, the prosecution examined as many as 11 witnesses and got exhibited several documents. Thereafter, statement of the accused appellant u/s. 313 Cr.P.C. was recorded. No evidence was led in defence by accused appellant. After conclusion of the trial, the learned Special Judge, NDPS Cases Bhilwara, through his judgment and order dated 1.12.1999 convicted that accused appellant for the offence u/s. 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubts against the accused. appellant for the offence u/s. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 1.12.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, the accused appellant has preferred this appeal from jail. 4. In this appeal, the following submissions have been raised by the learned counsel for the accused appellant : 1. That compliance of Section 50 of the NDPS Act, which is mandatory, has not been made in its letter and spirit and thus, the accused appellant is entitled to acquittal on this ground alone. 2. That as-per fard of search and seizure Ex.P/6, only one sample of 50 grms. opium was taken and sealed on the spot in a small tobacco box and marked as A/1 and the actual weight of the opium was 50 grms. excluding the weight of that box, while FSL report Ex.P/17 shows that weight of the sample A/1 was 45 grms. and it includes the weight of container also. Thus, there is a difference in weight, which shows that sample has been tampered with. Thus, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara. 6. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.Point No. 1 7. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara. 6. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.Point No. 1 7. So far as the legal position about Section 50 of the NDPS Act is concerned, it has been held by the Hon'ble Supreme Court in so many cases that it is obligatory on the part of the empowered officer to inform the person to be searched that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 of the NDPS Act, which is mandatory and thus, it would affect the prosecution case and vitiate the trial. The provision necessarily implies that the officer making search must inform the person, to be searched, of his right to be taken to the nearest Gazetted Officer or to the nearest Magistrate. 8. Thus, it can be said that a bare reading of the provision, leaves no doubt that it is the right of the person to be searched to insist that he be taken without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the NDPS Act, or to the nearest Magistrate. This is an extremely valuable right which the legislature has clothed him with and has been incorporated in the Act keeping in view the severity of the sentence. A search before a Gazetted Officer or Magistrate would impart more authenticity and credit worthiness to the proceedings otherwise the right would become illusionary. 9. The position of law has been stated above and apart from this, two decisions of the Hon'ble Supreme Court in this respect may also be referred to here. A search before a Gazetted Officer or Magistrate would impart more authenticity and credit worthiness to the proceedings otherwise the right would become illusionary. 9. The position of law has been stated above and apart from this, two decisions of the Hon'ble Supreme Court in this respect may also be referred to here. In K. Mohanan v. State of Kerala, 2000 SCC (Cri) 1228 , it has been held as under : "Narcotic drugs and Psychotropic Substances Act, 1985-Sec. 50-Before subjecting a person to search, the officer concerned must inform him of his right to be searched before a Gazetted Officer or a Magistrate and failure to do so would cause prejudice to such person - Where before conducting the search the police officer concerned merely asking the accused appellant whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search but not informing him about his right in that behalf under the law, held, mandatory requirement of Section 50 not satisfied - If he had been told about his right, what would have been the answer given by the accused cannot be gauged at this distance of time - This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with. In view of non-compliance with Section 50, the evidence of search spoken to by the police officer who had conducted the search cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article." 10. In Ahmed v. State of Gujarat, JT 2000(9) SC 416 , it has been held as under : "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." 11. 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." 11. From perusing the above two rulings of the Hon'ble Supreme Court, it becomes crystal clear that the officer concerned must inform accused of his right to be searched before Gazetted Officer or Magistrate and failure to do so would cause prejudice to such person. Merely asking accused whether he was required to be produced before a Gazetted Officer or a Magistrate for the purpose of the search, but not informing about his right in that behalf under the law, it would mean that mandatory requirement of Section 50 of the NDPS Act has not been satisfied. 12. The Hon'ble Supreme Court in so many cases has held that the provisions of Section 50 of the NDPS Act are mandatory in nature 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. 13. Looking to the above position of law, the facts and evidence of the present case are being examined. 14. Ex.P/5 is the so-called fard of consent as revealed from the statement of PW-2 Anil Paliwal, who made search and seizure in the present case. This fard Ex.P/5 starts with the following words : "Fard consent for searching accused Shankarlal Meena". The motbir witnesses of this fard Ex.P/5 are PW-9 Satyanarain and PW-11 Chhotu Singh and both have been declared hostile. This is another matter. 15. The other salient features of this fard Ex.P/5 are that the accused appellant was asked by PW-2 Anil Paliwal that he had contraband opium and for search he had to go either before Magistrate or Gazetted Officer, meaning thereby there was no choice left with the accused appellant and in mandate he was asked to go either before Magistrate or Gazetted Officer. The relevant : portion of the fard Ex.P/5 is quoted below:- " okLrs ryk'kh fdlh xtVsM vQlj ;k eftLV~sM lk ds leq[k pyuk gksxkA " Apart from this, no where in this fard Section 50 of the NDPS Act has been mentioned and accused appellant has been designated as accused in this fard before search. 16. The relevant : portion of the fard Ex.P/5 is quoted below:- " okLrs ryk'kh fdlh xtVsM vQlj ;k eftLV~sM lk ds leq[k pyuk gksxkA " Apart from this, no where in this fard Section 50 of the NDPS Act has been mentioned and accused appellant has been designated as accused in this fard before search. 16. Now the statement of PW-2 Anil Paliwal has to be seen. 17. PW-2 Anil Paliwal in cross examination has admitted the following facts : (1) That he took the consent of the accused appellant in writing. (2) That in writing there is no consent of the accused appellant and the fard Ex.P/5 bears only the signatures. (3) That so-called fard of consent Ex.P/5 does not bear the signatures of that person, who prepared this fard and it also does not contain the words that it was prepared under his directions. 18. PW-4 Sitaram is the another witness, who was with the raiding party and who was also the Incharge of the Police Chowki at Roadways Bus Stand. This witness admits the following facts in cross-examination (1) That fard of arrest and recovery were prepared on the spot and, therefore, PW-2 Anil Paliwal, CO left as he was in hurry. (2) That since there was no sitting place at the Roadways Bus Stand, therefore, rest fards including fard of consent Ex.P/5 were prepared at the Police Station and PW-2 Anil Paliwal came and, thereafter, left and signatures of both motbirs PW-9 Satyanarain and PW-11 Chhotu Singh were taken in the Thana. 19. From the above discussion, it appears that the so-called fard of consent Ex.P/5 was not prepared by PW-2 Anil Paliwal keeping in mind the provisions of Section 50 of the NDPS Act. The position of law is that the officer concerned must inform accused of his right to be searched before Magistrate or Gazetted Officer. But, in the present case, it appears that accused appellant was not informed of his right, but he was dictated by PW-2 Anil Paliwal that he had to go for search either before Gazetted Officer or Magistrate. The position of law is that the officer concerned must inform accused of his right to be searched before Magistrate or Gazetted Officer. But, in the present case, it appears that accused appellant was not informed of his right, but he was dictated by PW-2 Anil Paliwal that he had to go for search either before Gazetted Officer or Magistrate. Not only this, there is no mention of Section 50 of the NDPS Act in the fard Ex.P/5 and furthermore, it was not prepared by PW-2 Anil Paliwal himself as admitted by him in his statement recorded in Court and even he does not know who prepared it and moreso, that Ex.P/5 does not bear the endorsement that it was dictated by PW-2 Anil Paliwal. From the statement of PW-4 Sitaram, it further appears that fards including fard of consent Ex.P/5 was prepared at Police Station and since PW-2 Anil Paliwal was in hurry he left and came later on, meaning thereby fard of consent Ex.P/5 was prepared in absence of PW-2 Anil Paliwal. This evidence leads to only conclusion that the fard of consent Ex.P/5 was not prepared by PW-2 Anil Paliwal before making search of the accused appellant and what has been done, that has been done to perform mere formality or to make compliance of Section 50 of the NDPS Act. It further appears that PW-2 Anil Paliwal conducted the proceedings in a casual manner. 20. For the reasons stated above, it is held that mandatory provisions of Section 50 of the NDPS Act have not been complied with by the prosecution and, therefore, whole proceedings stand vitiated and on this ground alone, the accused appellant is entitled to acquittal.Point No. 2 21. The case of the learned counsel for the accused appellant is that weight of the sample taken on the spot and marked as All was 50 grms, excluding the weight of container while FSL report Ex.P/17 shows that weight of the sample All was 45 grms, excluding the weight of container and thus, there is difference in weight, which shows that sample has been tampered with. 22. In the present case, from the fard of search and seizure Ex.P/6, it appears that 4 Kg 200 grins, opium was seized on the spot, out of which, one sample of 50 grins, was taken.Number of samples to be taken : 23. 22. In the present case, from the fard of search and seizure Ex.P/6, it appears that 4 Kg 200 grins, opium was seized on the spot, out of which, one sample of 50 grins, was taken.Number of samples to be taken : 23. Sometimes sample sent for chemical analysis may be lost or destroyed in transit or otherwise may not reach the Chemical Examiner. It may also happen that report of chemical analysis may not be clear and complete. For these reasons, it may become necessary that sample be sent again for chemical examination. It is, therefore, advisable that while taking sample at the time of seizure itself, two samples are taken so that one may be sent for chemical analysis and the other preserved safely for getting the same examined if necessity so arises. 24. In Chhabil Das v. State of Haryana, 1998(1) Rece CR 133 (P&H) , ASI recovered 4 Kgs, of opium from the bag being carried by the accused and took one sample therefrom, it was observed by the Punjab & Haryana High Court that two samples as required by the NDPS Act were not taken; only one sample was taken which was held to be violation of Section 55 of the NDPS Act. 25. Thus, taking of one sample by PW-2 Anil Paliwal is not proper. 26. From the fard of search and seizure Ex.P/6, it appears that only one sample of 50 grms, opium was taken and it was kept in a small box of tobacco and sealed on the spot and marked as All, meaning thereby that box contained actual 50 grms. opium, while from the FSL report Ex.P/17, it appears that weight of the sample A/1 was 45 grms., which includes the weight of container. Hence, there is difference in weight of sample and the discrepancy in the weight of the sample has not been explained by the prosecution. Thus, it can be inferred that sample was not kept in proper custody and the possibility of the sample having been tampered with could not be ruled out. This factor went to the root of the appeal and necessarily the benefit of doubt must accrue to the accused appellant. 27. Thus, it can be inferred that sample was not kept in proper custody and the possibility of the sample having been tampered with could not be ruled out. This factor went to the root of the appeal and necessarily the benefit of doubt must accrue to the accused appellant. 27. For the reasons stated above, the findings of the learned Special Judge, NDPS Cases Bhilwara convicting the accused appellant for the offence u/s. 8/18 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal.Accordingly, the appeal filed by the accused appellant Shankar Lal is allowed and the judgment and order dated 1.12.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara are set aside and he is acquitted of the charge framed against him.Since the accused appellant Shankar Lal is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******