JUDGMENT 1. - This criminal appeal under Section 374 Cr.RC. has been preferred by the accused appellant Ramesh Chand challenging the judgment dated 7.5.1999 passed by the Additional Sessions Judge, Gangapur City, 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 years' rigorous imprisonment. 2. Briefly stated the contextual facts of the case are that on 12.6.1998 at 6.40 A.M. one Naval Singh, Head Constable No.1012 G.R.R Police Station, Gangapur City lodged a written report at G.R.R Police Station, Gangapur City to the effect that during the intervening night of 11 & 12 June, 1998 he alongwith Constables Abdul Rasid and Vishnu Kumar was on patrolling duty on Train No.2926 Up Delux Express up to Sawaimadhopur and in Train No. 4005 down Inter City Express from Sawai Madhopur to Gangapur City. When he was in the process of checking in a General Coach of Train No. 4005 down Inter City, he found a person in a suspicion condition. On asking about his whereabouts, the passenger disclosed his name as Ramesh Chand S/o Kailash Chand by caste Yadav Resident of 136/42 Malviya Nagar, New Delhi. On touching, it was found that some semi liquied substance was tied on the abdomen of the passenger and on inquiry, passenger Ramesh Chand disclosed it to be Opium. He then produced Ramesh Chand before the S.H.O. G.R.R Police Station, Gangapur City alongwith written report Ex.P6 Pw12 Babu Khan, SHO G.R.R Police Station, Gangapur City made the accused aware of his right to have his search conducted either in the presence of Gazetted Officer or a Magistrate and accordingly gave him written notice #x.R21 as required under section 50 of the Act. Accused in turn required the presence of a Gazetted Officer at the time of his personal search. PW12 Babu Khan called Dy S.R Gangapur City Manoj Kumar who arrived at Police Station at 6.00 A.M. thereafter, Manoj Kumar summoned two independent witnesses Hari Singh and Azij Khan vide requisition Ex.P7. Thereafter, Manoj Kumar in presence of above independent witnesses took search of the accused appellant and recovered Opium. The weight of the opium alongwith polythene was 2Kg, 420 grams. Thereafter, Manoj Kumar in presence of above independent witnesses took search of the accused appellant and recovered Opium. The weight of the opium alongwith polythene was 2Kg, 420 grams. The net weight of opium was 2Kg 370 grams. Manoj Kumar took two samples of opium weighing 30 gram each and sealed the same and the remaining opium in different packets. Manoj Kumar prepared the seizure memo of opium Ex.P1. He arrested the accused vide arrest memo Ex.P2. PW12 Babu Khan, SHO, registered a case No. 18/98 under section 8 read with section 18 of the Act vide FIR Ex.R9 and further investigated the matter. He sent a detailed report under section 57 of the Act on 12.6.1998 to his superior officer. A copy of the report is Ex.P22 and the receipt is Ex.P23. He recorded the statement of Naval Singh, Ramesh Chand, Deva Ram, Abdul Rasid, Vishnu Kumar, Om Prakash, Gauri Shankar, Ramesh Chand Mahajan, Hari Singh and Abdul Ajij under section 161 Cr.RC. 3. PW9 Om Prakash deposited the sealed packet of the sample in the Forensic Science Laboratory, Jaipur and submitted its receipt Ex.R14 at Police Station, A report of forensic Science Laboratory is Ex.R17, which indicates that on chemical examination the sample contained in the packet marked "B" gave positive tests for the presence of chief constitutes of the coagulated juice of opium poppy having 5.50% morphine. 4. Having completed investigation a challan was presented against the accused appellant in the Court of Additional Sessions Judge, Gangapur City. The learned Additional Sessions Judge framed charges against the accused appellant under section 8 read with section 18 of the Act. The accused appellant denied the charge and claimed to be tried. 5. During trial, the prosecution examined PW1 Deva Ram, PW2 Vishnu Kumar, PW3 Ramesh Chand, PW4 Ramesh Chand Mahajan, PW5 Naval Singh, PW6 Ajij Khan, PW7 Hari Singh, PW8 Abdul Rasid, PW9 Om Prakash, PW10 Gauri Shankar, PW11 Manoj Kumar and PW12 Babu Khan and also exhibited number of documents to prove the charge against the accused appellant. Thereafter, the appellant was examined under section 313 Cr.RC. Accused appellant did not examine any witness in defence. 6. 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. Thereafter, the appellant was examined under section 313 Cr.RC. Accused appellant did not examine any witness in defence. 6. 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 the learned counsel for the accused appellant and the learned public prosecutor and also perused the impugned judgment and the evidence and material placed on record. 8. In assailing the conviction, the argument advanced by the learned counsel for the accused appellant it 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 breach of the provisions of section 50 has resulted into vitiating trial against the accused appellant. 9. 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, AIR 1999 SC 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 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. 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 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. 11. Reference may also be made to an authoritative pronouncements of the Apex Court in the case of State of Punjab v. Babir Singh, 1994 (1) Crime 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. 12. 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 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 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. 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 section 50 empowers the Gazetted Officer of 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. PW12 Babu Khan, SHO 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. Thereafter, appellant required his search to be conducted in presence of a Gazetted Officer. Thereafter, he called Manoj Kumar, Dy. SP at Police Station. 16. PW11 Manoj Kumar, Dy. SP has stated that he himself conducted the search of the accused and prepared the connected documents including the seizure memo of opium. He has further admitted that he used his own seal to seal the samples and the recovered remaining opium. 17. From the evidence of PW11 Manoj Kumar arid PW12 Babu Khan, the question that emerges for consideration is whether the procedure adopted for giving opium for search to the accused is in consonance with the provisions of section 50 of the Act? 18. A bare perusal of the section 50 of the Act makes it clear search has to be taken by an officer duly authorised under section 42 in the presence of either a 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. 19. 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. 19. In the case of Sukh Pal Singh @ Bala v. State of Rajasthan, 1996 (1) RCC 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 to be different from the one, who is a member of the reading party of who is the officer conducting the search. 20. In the case of Nadeem v. State of Rajasthan, 1999 (1) Crimes 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 officer 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. 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 C.O. 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. 21. In the case in hand, the personal search of accused appellant cannot be said to be in consonance with section 50 of the Act as Dy. S.R Manoj Kumar himself took the search of the accused and there was no other Gazetted Officer in whose presence, the search was taken at the time of search of the accused appellant. The Gazetted Officer performing the functions under section 50 of the Act has to be different from the Officer conducting the search. The solitary provision contained in section 50 has been made keeping in view the heavy punishment which is likely to he imposed in case is the suspect found guilty under NDPS 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. 22. Thus for the reason that the search having been conducted by the Gazetted Officer, Dy. SP Manoj Kumar himself, it must be concluded that that the provisions of section 50 of the Act have been breached. This glaring illegality further assumes importance, in view of the fact that the independent witnesses Hari Singh and Ajij Khan have also not supported the prosecution version. 23. 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 for acquittal. 24. 24. 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 otherAppeal allowed. *******