JUDGMENT 1. - These two criminal appeals arise out of the judgment and order dated 3.1.1996 passed by the learned Special Judge, NDPS Cases & Additional Sessions Judge No. 1, Kota, whereby he convicted accused appellants Jitendra, Tara Chand and Ballu under Section 8/21 and sentenced each of them to undergo rigorous imprisonment for 10 years each with a fine of Rs. one lac each, in default of payment of fine, each to further undergo two year's rigorous imprisonment. 2. Since both the appeals arise out of same judgment impugned in these appeals, the same are being disposed of by a common judgment. 3. The contextual facts depict that on 24.9.1994 P.W. 7 Shri Satish Kumar Khurana, Circle Officer, Kota City, received some secret information, by which he was informed that 2-3 persons riding on motor cycle were involved in selling smack in the area of Rangbari and Ballu Mommdan is the leader of these persons. The officer accompanied by raiding party reached Rangbari Road. After waiting there for some time they noticed a blue coloured motor cycle coming from the side of Mahaveer Nagar. They signaled the driver to stop the motor cycle. On being stopped the riders tried to made good their escape, but they were rounded up. On being asked, they disclosed their names as Ballu Musalman, Tara Chand and Jitendra. On being searched smack was recovered from the custody of all the three accused appellants. Prior to their personal search, Satish Kumar Khurana informed them of their right that they can have their search conducted in the presence of any Magistrate or a Gazetted Officer. Accused appellants gave their consent and stated that they are willing to get their search conducted by S.K. Khurana himself. P.W. 7 Shri S.K. Khurana, prepared consent memos Ex. P. 2, Ex. P. 3 and Ex. R 4. Seizure memo Ex. P. 1 was drawn. The witnesses, as per the experience identified the recovered brown coloured powder as smack. Accused appellants were arrested vide arrest memo Ex. P. 5, Ex. P 6 and Ex. P 7. The motor cycle No. RJH-7997 was also seized vide Ex. P. 8. P.W. 7 S.K. Khurana, submitted the written report Ex. P 10 for registering the case. On the basis of the above written report, F.I.R. No. 139/94 Ex. P. 14 was registered. Accused appellants were arrested vide arrest memo Ex. P. 5, Ex. P 6 and Ex. P 7. The motor cycle No. RJH-7997 was also seized vide Ex. P. 8. P.W. 7 S.K. Khurana, submitted the written report Ex. P 10 for registering the case. On the basis of the above written report, F.I.R. No. 139/94 Ex. P. 14 was registered. P.W. 7 S.K. Khurana deposited the seized contraband, in the Malkhana of the Police Station, P.W. 6 Brij Bhusan Mishra, Malkhana Incharge, made entries of the articles deposited in malkhana register Ex. P. 15. He handed over the three sealed packets to P.W. 5 Sarvar Singh, Constable for depositing the same with the Forensic Science Laboratory, who in turn deposited the sealed packets, obtained the receipt and submitted the receipt of F.S.L. Ex. P. 11 at police station. Ex. P. 12 is the report of Forensic Science Laboratory which indicates that the sample contained in each of the packets marked A, B and C gave positive tests for the presence of diacietyl morphine (heroin). P.W. 4 Deendayal, S.H.O., conducted the investigation and prepared Ex. P. 9 site plan. He also recorded the statements of the witnesses under Section 161 Cr.P.C. 4. On completion of investigation, the police submitted a charge sheet against the accused appellants in the court of learned Special Judge, NDPS Cases, Kota, who on the basis of material on record and after hearing arguments framed charges under Section 8/21 NDPS Act against appellants to which they pleaded guilty and claimed trial. 5. During trial, the prosecution in support of its case examined P.W. 1 Ghasi Lal, P.W. 2 Jata Shankar, P.W. 3 Shankar Singh, P.W. 4 Deendayal Bhargava, P.W. 5 Sarvar Singh, P.W. 6 Brij Bhusan Mishra, P.W. 7 Satish Kumar Khurana and P.W. 8 Mohan Singh. Thereafter, accused appellants were examined under Section 313 Cr.P.C. The appellants did not examined any witness in their defence. 6. On conclusion of trial, the learned trial Judge found the charges established beyond reasonable doubt against the accused appellants arid accordingly convicted and sentenced them as aforesaid. Hence the present appeals. 7. I have heard learned counsel for the accused appellants and the learned Public Prosecutor and perused, the impugned judgment and the evidence and material on record. 8. 6. On conclusion of trial, the learned trial Judge found the charges established beyond reasonable doubt against the accused appellants arid accordingly convicted and sentenced them as aforesaid. Hence the present appeals. 7. I have heard learned counsel for the accused appellants and the learned Public Prosecutor and perused, the impugned judgment and the evidence and material on record. 8. In assailing the conviction, the first argument advanced by the learned counsel appearing for the accused appellants is that the prosecution has not able to prove the 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 has breached the provisions of Section 50, which has resulted into vitiating trial against the appellants. 9. The controversy as to the effect of non-compliance of the provisions of Section 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 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. 10. 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 Investigation Officer (Empowered Officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50 of the Act. 11. 10. 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 Investigation Officer (Empowered Officer) to ensure that search of the concerned person (suspect) is conducted in the manner prescribed by Section 50 of the Act. 11. Reference may also be made to an authoritative pronouncements of the Apex Court in the case of State of Punjab v. Balbir Sigh, (1994(1) Crimes 753) , wherein their Lordships of the Apex Court have made it clear that in case an offer in terms of Section 540 of the Act is not made to an accused by the person who has apprehended him, that by itself vitiates the conviction. 12. Having considered the effect of non-compliance of Section 50 of the Act, now, I have to 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 to 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 the Section 41, Section 42 or Section 43, he shall, if such person so required, take such persons 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 persons but otherwise shall direct that search be made. (iv) No female shall be searched by anyone excepting a female. 13. Undisputedly, the provisions of Section 50 of the Act are mandatory in character and violation there of 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. 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. 14. 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. 15. P.W. 7 S.K. Khurana, has stated that he informed the accused appellants of their legal right to be searched in the presence of Magistrate or in his presence, he himself being a gazetted officer. Here it may be mentioned that statement of S.K. Khurana was deferred due to his personal pre-occupations and thereafter he did not turn up for rest of the cross examination. It is settled proposition of law that a witness who has not been subjected to cross examination or if his cross examination was not completed then in such a situation, the testimony of such a witness should not be taken into consideration by Court. 16. P.W. 1 Ghasi Lal, a member of the raiding party has stated that S.K. Khurana informed the accused appellants of their legal right to be searched in the presence of a Magistrate or a Gazetted Officer, but they gave consent for their search by S.K. Khurana himself and consent memos were prepared separately. He has further deposed that having failed to procure independent witnesses to the search, he searched the accused appellants in the presence of constable Jata Shankar and Mohan Singh. The witness has further deposed that they went at the place of occurrence on foot, but returned back to the police station in a Jeep. He has also stated that he tried to procure presence of the independent witnesses at police station and he sent constable Jata Shankar in search of witnesses, but Jata Shankar failed to procure the independent witnesses. 17. P.W. 2 Jata Shankar has stated that Dy. He has also stated that he tried to procure presence of the independent witnesses at police station and he sent constable Jata Shankar in search of witnesses, but Jata Shankar failed to procure the independent witnesses. 17. P.W. 2 Jata Shankar has stated that Dy. S.R asked the accused appellants that he himself wanted to take their search and in the absence of independent witnesses P.W. 1 Ghasi Lal, Assistant Sub Inspector conducted search of the accused appellants in the presence of Mohan Singh. In cross examination, the witness has further deposed that prior to search accused appellants were informed that there search may be conducted in presence of a gazetted officer or Dy. S.R He has also deposed that they went to the place of occurrence on foot and returned back with accused appellants. 18. P.W. 3 Shankar Singh has deposed that C.O. made the accused appellants aware of their right to be searched in the presence of a gazetted officer or a Magistrate. The witness in cross examination has deposed that they went at the place of occurrence in Jeep and Jipsy and also returned back to the police station in the same vehicle. He has also deposed that proceedings were drawn in his presence at police station. PW. 6 Mohan Singh who was also a member of the raiding party has not supported the prosecution version regarding occurrence. He has categorically denied the recovery of smack from the possession of the accused appellants in his presence. 19. P.W. 1 Ghasi Lal has stated that he deputed constable Jata Shankar to procure the independent witnesses to witness the search and seizure, but Jata Shankar came back alone as he could not procure any witnesses, but Jata Shankar has not deposed a single work in this context. It is not disputed that place where accused appellants were apprehended, happened to be a public place. 20. Similar controversy existed in the case of Dalip Kumar v. State of Rajasthan, (1999 (1) R.C.C. 487) , which was repelled by the Court. The Court came to the conclusion that the bald statement that independent witnesses were not available and therefore, police personnels were appointed, does not inspire confidence. Resultantly, it was held that the mandatory provision of the Section 50 of the Act was not properly complied with. 21. The Court came to the conclusion that the bald statement that independent witnesses were not available and therefore, police personnels were appointed, does not inspire confidence. Resultantly, it was held that the mandatory provision of the Section 50 of the Act was not properly complied with. 21. Again in the case of Smt. Nahari v. State of Rajasthan, (1998 (2) R.C.C. 49) , S.H.O. directed Constable Ram Ratan for procuring independent witnesses, but Ram Ratan for procuring independent witnesses, but Ram Ratan put remark on Ex. 8 that no witnesses available. In the above fact situation, it was held that in the absence of independent witnesses, the testimony of Chavand Singh and Smt. Geeta Pancholi does not inspire confidence and for this reason the provisions of Section 50 of the Act have been flouted. The conviction of the accused under Section 8/21 of the Act was set-aside. 22. Again in the case of Manohar Lal v. State of Rajasthan, (1998 (2) R.C.C. 402) , the same principle of law has been annunciated. 23. In the case in hand, the bald statement of Ghasi Lal P.W. 1 that independent witnesses were not available and therefore, police personnel's were appointed, does not inspire confidence. Secondly, it could hardly be believed that on a busy road no one prepared to be a witness of search. In the absence of independent witnesses, the testimony of the members of the raiding party does not inspire confidence. For this reasons, it is held that provisions of Section 50 of the Act have been flouted and not properly complied with. 24. Apart from above, the statement of the witnesses regarding option given to the accused appellants are contradictory with each other. Exactly what option was given to the accused appellants is not clear from the vague statements of the prosecution witnesses. As already discussed hereinabove, P.W. 1 Ghisa Lal and P.W. 3 Shankar Singh have stated that option of search in the presence of Magistrate of Gazetted Officer was given to the accused appellants, whereas, P.W. 2 Jata Ram has stated that Dy.S.R informed the accused appellants that he himself wanted to take their search, P.W. 8 Mohan Singh, a member of the raiding party has not at all supported the prosecution story. 25. 25. Having carefully scrutinised the prosecution evidence on record, I find that there are glaring discrepancies and significant contradictions in the statement of prosecution witnesses on some vital and important points which go to the roote of the case, viz., what was the mode adopted by the raiding party in reaching at the spot; how much time the raiding party spent at the spot; as to whether the proceedings were drawn at the spot or at the police station; by whom the accused appellants were apprehended at the spot, etc. Apart from these discrepancies/contradictions, it may also be pointed out that P.W. 8 Mohan Singh, police witness and b member of the raid party has also not supported the prosecution story, in my considered opinion, the discrepancies render the entire case of the prosecution highly doubtful. 26. From what has been discussed above, I have to hesitation in holding that the prosecution has not been able to establish the compliance of mandatory provisions of Section 50 of the NDPS Act and has thus breach the said mandatory provision which has resulted in vitiating trial against the accused appellant, in view of the law laid down in the cases referred to above. It must also be held that there are material contradictions in the statements of the prosecution witnesses and various discrepancies on some vital and important issues as mentioned in the foregoing paragraphs, thereby rendering the testimony of the witnesses untrustworthy making the prosecution story highly doubtful and the benefit of doubt must go to the accused appellants. I am fortified in my view by a decision of the Apex Court in the case of Bhola Ram Kushawa v. State of M.P., (J.T. 2000 (Supp. II) S.C. 632) . 27. In the result, both the appeals are allowed, the conviction of accused appellants Jitendra, Tara Chand and Ballu under Section 8 read with Section 21 and the sentences awarded to them are set-aside and they are acquitted of the charge. They are in custody and they shall be released forthwith, if not required in any other case. *******