JUDGMENT 1. - This criminal Appeal under Section 374 Cr. P.C. has been preferred by accused appellant Bhanwar Lal through Superintendent, Central Jail, Kota, challenging the judgment dated 29.9.99 passed by the Special Judge, NDPS Cases, Jhalawar, thereby convicting the accused appellant. for offence under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as "the Act") and sentencing him to undergo rigorous imprisonment for 10 years with a fine of Rs. one lac, in default thereof, to further undergo one year's rigorous imprisonment. 2. On 30.8.1998, the preventive party of the Central Narcotic Bureau, Jhalawar was on patrolling duty. At about 5.00 pm. Inspector Ejaj Ahmed (P.W.1), one of the members of the preventive party gave hand signal and got private bus No.RJ26/P-0085 stopped, which was coming from Aklera and proceeding towards Jhalara-patan and the Inspector having disclosed his identity and purpose to PW6 Laxmi Narain and PW7 Ramzan, Driver and conductor of the bus started checking. During course of checking, the Inspector asked and name of one passenger who was sitting at the back seat of the bus having a bag with him and made enquiry. The passenger disclosed his name as Bhanwar Lal and could not property answer the question put by the Inspector. The Inspector then got down Bhanwar Lal from the Bus and informed him about their suspicion that he was in possession of some drugs or narcotic substances. Thereafter Ejaj Ahmed, Inspector made the accused aware of his right to get his search conducted either in presence of a Gazetted Officer or a Magistrate or in presence of Shri M.C. Vijay, District opium officer, Jhalawar, who happened to be a Gazetted Officer and accordingly gave him a written notice, Ex. P. 1 as required under section 50 of the Act. The accused in turn, gave his consent in writing on the notice itself that he was prepared to have his search conducted in presence of the District Opium Officer and put his signature. 3. On being searched by PW1 Ejaj Ahmed, some black substance in 3 packets packed in 3 empty packets of 'shankh washing powder' lying in the bag of accused Bhanwar Lal, which on chemical analysis, with the help of instruments already available with the, patrolling party, was found to be opium. The weight of opium along with polythene was 1.700 Klgms. On being searched by PW1 Ejaj Ahmed, some black substance in 3 packets packed in 3 empty packets of 'shankh washing powder' lying in the bag of accused Bhanwar Lal, which on chemical analysis, with the help of instruments already available with the, patrolling party, was found to be opium. The weight of opium along with polythene was 1.700 Klgms. The Inspector took two samples of opium weighing 25 grams each, kept the same in polythene and then sealed the same in two envelops and put the marks A1 and A2 on both the packets. Remaining opium was sealed in the same polythene cover. The Inspector thereafter prepared a Panchnama of recovery of opium, Ex.P2 in the presence of two independent witnesses, namely PW6 Laxmi Narain and PW7 Ramzan. He also prepared a memo Ex.P4 of specimen seal and a site plan Ex.P.5. arrest memo of accused, Ex.P.6 was also prepared. 4. On completion of above formalities, PW1 Ejaj Ahmed submitted a first information report Ex.P.7 to the District Opium Officer, Jhalawar. Thereafter, he recorded the statements of witnesses and sent the samples of contraband for chemical examination, the report of which is Ex.P.10. As per the chemical examination the sample was found, by qualitative and quantitative analysis, to be opium within the meaning of NDPS Act, 1985. 5. Having completed investigation, a challan was presented against the accused appellant in the court of learned Special Judge, NDPS Cases. The learned Special Judge, framed charges against the appellant under Section 8 read with Section 18 of the Act. The appellant denied the charge and claimed to be tried. 6. During trial, the prosecution examined as many as 7 witnesses and exhibited number of documents to prove the charge against the appellant. Thereafter, the appellant was examined under section 313 Cr. P.C. After conclusion of trial, the learned trial Judge found the charges established beyond reasonable doubt and accordingly convicted and sentenced the accused appellant as aforementioned. 7. I have heard learned counsel for the accused appellant, the learned Public Prosecutor and also perused the impugned judgment and the evidence and material placed on record. 8. In the present case, undisputedly the accused appellant while travelling in a bus was got down from the bus. 7. I have heard learned counsel for the accused appellant, the learned Public Prosecutor and also perused the impugned judgment and the evidence and material placed on record. 8. In the present case, undisputedly the accused appellant while travelling in a bus was got down from the bus. When he came down from the bus, he was having a bag in his hand and that the aiding party on their suspicion that he was having incriminating articles in his bag, the Inspector gave him notice as required u/s 50 of the Act. The question which emerges for consideration of this Court is whether the search of a bag in the hand of the appellant is a search of a person as envisaged under the provisions of Section 50 of the Act. In the case of Namdi Francis Nwazor v. Unipn of India (1997 (1) C.C.R. 27 (SC), , the accused, a Nigerian national was apprehended at the air port while leaving India. His luggage was searched. At the point of time where the actual search took place, the accused was carrying two hand bags, but nothing incriminating was found therefrom. However, the accused had booked one bag and the same after it was checked in was lodged in the aircraft by which the accused was to travel. The bag was called and checked and it was found to have contained narcotic substances. In such circumstances, a three Judge bench of the Apex Court held as under- "... We must hasten to clarify that if that person is carrying a hand bag or like and-the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case". 9. So, on the facts of this case it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case". 9. In Ali Mustaffa v. State of Kerala, AIR 1995 SC 244 , , the accused was found sitting with a bag from which three big packets containing Charas were seized. Their lordships of the Supreme Court held that on account of non compliance of the provisions of Section 50 of the Act, the conviction cannot be sustained. 10. In Kalema Tumba v. State of Maharashtra, (1999) 8 SCC 257 , , a Zairian national arrived at Sahar Airport (Bombay) was asked to identify his baggage and after he identified his baggage, on search, heroine was seized from the bag. The division bench of the Supreme Court considering the case of State of Punjab v. Baldev Singh, (1999) 6 S.C.C. 172 , , and State of Punjab v. Jasbir Singh, (1996) 1 SCC 288 , , held as under- "If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his "person". In this case heroine was found from a bag belonging to the appellant and not from his person and therefore, it was no necessary to make an offer for search in the presence of a gazetted officer or a Magistrate." 11. In Sarajudas v. State of Gujarat, (1999) 8 SCC 508 , , charas was seized which was kept in bag lying on the scooter on which the accused were riding. The division bench of the Apex Court following the view taken in Kalema Tumba's Case (Supra) and Baldev Singh's case (Supra) held as under: "We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh, ,". 12. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh, ,". 12. Again in Birakishore Kar v. State of Orissa, (2000) 9 SCC 541 , , the accused was found sitting on a plastic bag containing poppy straw. In this fact situation, the division bench of the Apex Court considered Baldev Singh's case and took the same view as that of the view taken in Kalema Tumba case (Supra) and Sarjudas case. The division bench held as under: "In this case it was not the person of the appellant which was searched. He was found sitting on a plastic bag which belonged to him and which contained poppy straw. As pointed out by this court in State of Punjab v. Baldev Singh , Section 50 would come into play only in the case of search of a person as distinguished from search of any premise etc." 13. In all the three cases referred to above, the facts were different than that of the facts of the present case. In the above cited cases the bags were not found in the hands of the suspects and therefore, the ratio in these three cases is not directly on the point in issue. However, the view taken by the Apex Court in Namdi Francis Nwazor's case (supra) decided by a larger bench and the view taken in Ali Mustaffa's case (supra) have not been referred in the above cited three cases. Thus, a legal question is posed as to, which of the views should be followed? 14. The Apex Court dealing with the same situation, in CIT v. Trilok Nath Mehrotra, (1998) 2 SCC 289 , , held as under: "We do not find any conflict in the law laid down in the case of R.M. Chidambram Pillai with the law laid down in the earlier two cases. The decision in the case of Raj Kumar Singh Hukam Chandji was rendered by a Bench of three judges. Therefore, even assuming that there was a conflict between that decision and the decision rendered in Chidambaram Pillai case which was rendered by a Bench of two judges, the decision of the larger Bench will prevail". 15. The decision in the case of Raj Kumar Singh Hukam Chandji was rendered by a Bench of three judges. Therefore, even assuming that there was a conflict between that decision and the decision rendered in Chidambaram Pillai case which was rendered by a Bench of two judges, the decision of the larger Bench will prevail". 15. Having considered the law cited and discussed above, I do not find any conflict in the law laid down in later three cases Kalelma Tumba v. State of Maharashtra, , Sarjudas v. State of Gujarat, , and Birakishore Kar v. State of Orissa, , with the law laid down in earlier two decisions of the Apex Court in Namdi Francis Nwazor v. Union of India, , and Ali Mustaffa v. State of Kerala, . Therefore, even assuming that there was a conflict between the later three decisions and the earlier two decisions, the decision rendered by the larger bench in Namdi Francis Nwazor's case (supra) will prevail. Thus, in the light of the law laid down by the larger Bench in Namdi Francis Nwazor's case, it must be held that in the case in hand the search of a bag in the hands of accused appellant was a search of the person of accused requiring compliance with the provision of Section 50 of the Act. 16. Having held that the present is a case of search of the person of accused and compliance of Section 50 is necessary, the question now arose for decision is whether in the present case the prosecution has been able to prove that there was compliance of the provisions of Section 50 of the Act. 17. In assailing the conviction, the first argument advanced by the learned counsel appearing for the accused appellant is that there was complete non-compliance of the mandatory provisions of Section 50 of the Act. According to the learned counsel, the provisions of Section 50 of the Act makes it imperative and obligatory on the part of the officer empowered under section 42 of the Act to ensure that the search of a suspect is conducted in the manner prescribed by Section 50 of the Act. The prosecution has breached the provisions of Sec.50 which has resulted into vitiating trial against the appellant. 18. The prosecution has breached the provisions of Sec.50 which has resulted into vitiating trial against the appellant. 18. The controversy as to the effect of non-compliance of the provisions of Sec.50 of the Act has been set at rest by the Apex Court in series of judgments. Recently, the constitution Bench of the Apex Court in the case of State of Punjab v. Baldev Singh, A.I.R. 1999 S.C. 2378, , have held that the duty of the empowered officer conducting search of a suspect to inform him of his right to be searched in the presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right conducting a search under section 50 of the Act, conducting a search without intimating to a suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the 'reasonable, fair and just procedure' and the safe guard contained in Section 50 would be rendered illusory, otiose and meaningless- 19. The Constitution Bench further observed that the provisions of Section 50 of the Act implicitly makes it imperative and obligatory and cast a duty on the Investigating Officer (Empowered Officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50 of the Act. 20. Reference may also be made to an authoritative pronouncements of the Apex Court in the case of State of Punjab v. Balbir Singh 1994 (1) Cri 753, , wherein their Lordships of the Apex Court have made it clear that in case an offer in terms of Section 50 of the Act is not made to an accused by the person who has apprehended him, that by itself vitiates the conviction. 21. Having considered the effect of non-compliance of section 50 of the act, now, I shall consider, whether in the case in hand the prosecution has complied with the provisions of Section 50 of the Act or not? 21. Having considered the effect of non-compliance of section 50 of the act, now, I shall consider, whether in the case in hand the prosecution has complied with the provisions of Section 50 of the Act or not? To proceed further, it would be beneficial reproduce Section 50 of the Act, which runs as under:- "Conditions under which search of persons shall be conducted- (i) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so required, 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. (ii) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (iii) The Gazetted Officer or the Magistrate before whom any person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (iv) No female shall be searched by anyone excepting a female. 22. Undisputedly, the provisions of Section 50 of the Act are mandatory in character and violation thereof is fatal to the prosecution. When any officer duly authorised under Section 42 of the Act is about to search a person he is bound to inform the suspect that he had a right to be searched before the Gazetted Officer or a Magistrate. If the suspect makes a choice then, it is for the authorised officer to take him either before the Gazetted Officer or the Magistrate. Sub-section 3 of the Section 50 empowers the Gazetted Officer or the Magistrate to direct either discharge of the person forthwith or the search be made. 23. Coming to the question of compliance of Section 50 of the Act, keeping in view the above settled position of law, I shall now examine the evidence on record. 24. P. W. 1 Ejaj Ahmed, Inspector has stated that he informed the accused appellant in writing of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer. He also informed him that he can also have his search conducted in the presence of Shri MC. 24. P. W. 1 Ejaj Ahmed, Inspector has stated that he informed the accused appellant in writing of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer. He also informed him that he can also have his search conducted in the presence of Shri MC. Vijay, District Opium Officer, Jhalawar, who happened to be a Gazetted Officer and was present on the spot. Thereafter appellant Bhanwar Lal gave his consent in writing that he wants to have his search conducted by the District Opium Officer and he put a note C to D on the notice Ex. P. 1. and thereafter, Shri M.C. Vijay, District Opium Officer conducted the search of appellant Bhanwar Lal. 25. PW 8 M.C. Vijay has stated in his statement that Inspector Ejaj Ahmed gave notice to the appellant under Section 50 of the Act, thereby giving him option to have his search conducted either in presence of a Gazetted Officer or a Magistrate. This witness has categorically stated that Ejaj Ahmed also informed the appellant that M.C. Vijay a Gazetted Officer is also present with the raiding party and since he himself is a Gazetted Officer, he can have his search conducted in his presence also. Thereupon the accused consented to have his search conducted in presence of this witness M.C. Vijay. 26. The statements of PW 1 Ejaj Ahmed and PW3 M.C. Vijay find corroboration by the statement of PW4 Bapu Lal Verma, an employee of the Office of District Opium Officer and member of the raiding party. Thus it stands fully established that the search was conducted in presence of PW3 M.C. Vijay, District Opium Officer, a member of the raiding party. 27. From the evidence of PW 1 Ejaj Ahmed, PW3 Shri M.C. Vijay and PW4 Shri Bapu Lal Verma, the question that emerges for consideration is whether the procedure adopted for giving option for search to the accused is in consonance with the provisions of Section 50 of the Act? 28. 27. From the evidence of PW 1 Ejaj Ahmed, PW3 Shri M.C. Vijay and PW4 Shri Bapu Lal Verma, the question that emerges for consideration is whether the procedure adopted for giving option for search to the accused is in consonance with the provisions of Section 50 of the Act? 28. From the evidence discussed above, it is crystal clear that PW3 M.C. Vijay was member of the Raiding Party and according to him, Ejaj Ahmad P.W. 1 informed the accused of his legal right to be searched in the presence of a Magistrate, or a Gazetted Officer and also in the presence of Shri M.C. Vijay who happened to be a Gazetted Officer and was a member of the raiding party. 29. A bare perusal of the Section 50 of the Act makes it clear that search has to be taken by an officer duly authorised under Section 42 in the presence of either Gazetted Officer or the Magistrate opted by the accused. The Gazetted Officer or the Magistrate before whom the accused is brought, if he sees no reasonable ground for search shall forthwith discharge the person, but otherwise shall direct that search be made. 30. In the case of Sukh Pal Singh @ Bala v. State of Rajasthan, 1996 (1) R.C.C. 544 (Raj.), , similar question arose for consideration and it was observed that Section 50 (3) of the Act provides that the Gazetted Officer or the Magistrate before whom the person to be searched is brought, shall, if he sees no reasonable grounds for the search, forthwith discharge the person to be searched. The Gazetted Officer of the search party would obviously normally not exercise the second option because after relying on the information of Mukhbir, he has required that person to be searched. A Member of the raiding party, even if he is a Gazetted Officer cannot himself do the dual task of being a party to the search and arrive at a satisfaction that search is warranted or not? Therefore, the Gazetted Officer performing the functions under Section 50 of the Act has too be different from the one, who is a member of the raiding party or who is the officer conducting the search. Therefore, the Gazetted Officer performing the functions under Section 50 of the Act has too be different from the one, who is a member of the raiding party or who is the officer conducting the search. It is the-duty of Gazetted Officer intending to take search on suspicion, to inform the accused that he has a right to be taken to a Gazetted Officer or a Magistrate for search. He cannot be exempted from giving the option with regard to the search before a Gazetted Officer other than himself. 31. In the case of Nadeem v. State of Rajasthan, 1999 (1) Cri 548, , it was held that 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' used in Sub-section (1) and the words "any Gazetted Officer or Magistrate before whom any such person is brought' used in Sub-section (3) of Section 50 of the Act are of much significance. The words 'take and brought' imply that search should be conducted by taking the person before the Gazetted Officer or a Magistrate and the said office or magistrate before whom the person is brought, shall, if he sees no reasonable ground for search discharge the person, but otherwise shall direct that search be made. But it appeared in the instant case that the investigating agency for its convenience has redrafted the solitary provisions of Section 50 of the Act by taking the Gazetted Officer Circle officer to the accused. When Circle Officer was brought before the accused, the accused volunteered that he may be searched before CO. It was held that it cannot, therefore, be said that Circle Officer was totally independent. Being a member of raiding party, he was having some interest in the success of raid. 32. In the case in hand, the option to get the accused searched in the presence of PW3 M.C. Vijay. District Opium Officer, who was a member of the raiding party cannot at all be said to be in consonance with Section 50 of the Act, though he was a gazetted officer. The solitary provision contained in Section 50 has been made keeping in view the heavy punishment which is likely to be imposed in case a person is found guilty under N.D.P.S. Act. The solitary provision contained in Section 50 has been made keeping in view the heavy punishment which is likely to be imposed in case a person is found guilty under N.D.P.S. Act. The provision has been made to ensure fair investigation of the cases being brought under the Act. A search that complies with the requirements of Section 50 of the Act imparts much more authenticity and credit worthiness to the proceedings, while equally providing an important safeguard to the accused, The provisions confers an important and valuable right and intended to minimise the allegation of planting or fabricating by the prosecution. 33. Admittedly, P.W. 1 Ejaj Ahmed informed the accused of his rightto be searched either in presence of a Magistrate or a Gazetted Officer and in alternative in the presence of M.C. Vijay who happened to be on the spot in the capacity as a member of the raiding party and was a Gazetted Officer. In my considered opinion, the accused was misled by an option to give his consent to be searched by the District Opium Officer, who was a member of the raiding party and the appellant was searched in his presence. Thus, for the reason that the search having been conducted in the presence of a member of the raiding party, though he may be a Gazetted officer, it must be concluded that the provisions of Section 50 of the Act have been breached. 34. That apart, P. W.6 Laxmi Narain and P. W.7 witnesses to Ex. P. 1 and the seizure of contraband have not at all supported the prosecution case. P. W.6 Laxmi Narain has categorically stated that the bag was lying on the rack of the bus. The witness in his cross-examination has stated that a bag was lying on the rack and none claimed the ownership of the bag. The person who was got down from the bus had no bag with him. Similarly P. W.7 conductor of the bus has categorically denied the prosecution allegation against the appellant. In my opinion, uncorroborated testimony of the officials of the department concerned does not inspire confidence. 35. There is yet another lacuna in the prosecution case. Undisputedly, as per the prosecution case notice under Section 50 of the Act was given to the accused appellant. In my opinion, uncorroborated testimony of the officials of the department concerned does not inspire confidence. 35. There is yet another lacuna in the prosecution case. Undisputedly, as per the prosecution case notice under Section 50 of the Act was given to the accused appellant. A perusal of arrest memo Ex.P.6 does not indicate recovery of any notice from the possession of the accused appellant. It may be made clear that had a notice been given to the accused appellant, as claimed by the prosecution, it would have certainly been recovered from his possession. Non-recovery of notice from the appellant creates reasonable doubt about the notice alleged to be given to him. In these circumstances. the only inference that can be drawn is that the written notice was never served on the appellant. I find support from a decision of this court in Azad Singh and another v. The State of Rajasthan, 2000 WLC (Raj.) UC 481, . wherein this court held that non recovery of notices u/s 50 of the Act given to the accused render the trial unfair for breach of safeguards of Section 50 of the Act. 36. From the discussions made above, I have no hesitation in holding that there was complete non-compliance of the mandatory provisions of Section 50 of the Act and its violation is per se fatal to the prosecution case and thus failure on the part of the prosecution to comply with these requirements adversely affects the prosecution case. thereby entitling the accused to benefit of doubt. 37. From the evidence and material on record, I find one more lacuna in the prosecution case. It is also necessary for the prosecution to prove that the contraband seized and sealed remained intact right from it seizure till the same reached the F.S.L. for chemical examination. Whether or not, in the present case the contraband sealed remained intact throughout, it is necessary to re-appreciate the evidence on record. P.W. 1 Ejaj Ahmed has deposed in his statement that the seized goods and the samples were deposited in the office of District Opium Officer. He further deposed that after making entry in the malkhana register and in sample register, kept the goods in a supervision of District Opium Officer. A perusal of the record shows that the record does not contain copies of sample register and malkhana register. He further deposed that after making entry in the malkhana register and in sample register, kept the goods in a supervision of District Opium Officer. A perusal of the record shows that the record does not contain copies of sample register and malkhana register. P.W.3 Manak Chand Vijay has stated in his statement that P.W. 1 Ejaj Ahmed himself was the Incharge of Malkhana and custodian as well, in whose custody the goods remained. 38. It is thus clear that there are material contradictions in the statement of P.W.1 Ejaj Ahmed and P.W.3 M.C. Vijay and it is not proved as to in whose custody the sample of contraband remained. That apart the malkhana register has not been produced in evidence. Thus, it can safely be held that the prosecution has not been able to prove that the seals remained intact right from seizure till the same were handed over to the F.S.L. for chemical examination. Not only this, the Inspector (P.W. 1) affixed the official seal instead his personal seal.The result of the above discussion is that the prosecution has not been able to prove the guilt against accused appellant on both the counts, (i) compliance of the provisions of Section 50 of the Act and (ii) that the seal remained intact. 39. In the result, the appeal must succeed and it is accordingly allowed, the judgment of conviction and sentence passed by the trial court is set aside. The appellant is in jail and he be set free forthwith if not wanted in any other case.Appeal allowed. *******