JUDGMENT 1. - The appellants were the accused in Sessions Case No. 196 of 1998 on the file of learned Special Judge NDPS Cases Bundi. They were found guilty under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act). Both of them were convicted thereunder on January 6, 2000 and sentenced to 10 years rigorous imprisonment and fine of Rs. 1.00,000/- in default of payment of fine to further undergo two years rigorous imprisonment. 2. Aggrieved by the conviction and sentence the action for filing the instant appeals has been resorted to. 3. The case of prosecution is that on December 12, 1996 the Narcotic Prevention Party headed by Inspector Abdul Qayum Sagar stopped and searched Bus No. RJ 01 P/1117 about 2.30 p.m. while the same was passing in front of Sathur on Bundi-Deoli road. The appellants were found occupying seats No. 27 and 28. They showed signs of nervousness which aroused suspicion. They were asked to get down from the Bus. The search allegedly revealed presence of opium weighing 500 gms. wrapped in a cloth over the stomach of appellant Hira Lai. Two journey tickets were recovered from the possession of appellant Sanwal Lal. Necessary memos were drawn, appellants were arrested and on completion of investigation the appellants were put up for trial. Charges under section 8118 of the NDPS Act were framed to which the appellants pleaded not guilty and claimed trial. The prosecution examined as many as fifteen witnesses. In the explanation under section 313 CrP.C. the appellants denied the allegations appearing in the statements of the prosecution witnesses. The appellants pleaded that no opium was recovered from them. Three persons were unboarded from the Bus. They desired to be produced before the Magistrate but were not produced. Thereafter one witness was examined in defence and the learned trial court after hearing the arguments convicted and sentenced the appellants as indicated hereinabove. 4. Mr. Kamlakar Sharma learned counsel for appellant Sanwal Lal pointed out following infirmities in the prosecution case (i) No opium was recovered from Sanwal Lal. (ii) Prosecution was not able to prove the compliance of section 50 of the NDPS Act. (iii) No independent witness supported the prosecution story. 4. Mr. Kamlakar Sharma learned counsel for appellant Sanwal Lal pointed out following infirmities in the prosecution case (i) No opium was recovered from Sanwal Lal. (ii) Prosecution was not able to prove the compliance of section 50 of the NDPS Act. (iii) No independent witness supported the prosecution story. (iv) Statement of Sanwal Lal allegedly recorded under section 67 20 NDPS Act cannot be read against him being hit by Article 20(3) of the Constitution of India. 5. According to Mr. Syed Saadat Ali learned counsel for appellant Hira Lal compliance of section 50 of NDPS Act was not established even from the statement of Abdul Qayum Sagar (PW 1) as he did not say that the appellant was given option to produce him before the Magistrate. 6. Per contra, Mr. Bhanwar Bagri, learned Senior Standing Counsel for the Union of India canvassed that testimony of public servant should not be brushed aside. Public servants are not, ordinarily supposed interested in the causes registered by them and put up them before the court, after investigation for bringing the culprits to books. They cannot be termed as interested witnesses simply on the ground of expecting the success of the case. Learned counsel further contended that compliance of section 50 was made and the statements of the appellants recorded before their arrest and are admissible under section 67 of the NDPS Act and the appellants were rightly convicted by the trial court. Reliance was placed on Pon Adithan v. Deputy Director, Narcotics Control Bureau Madras, AIR 1999 SC 2355 ; Naresh v. U.O.I., AIR 1996 SC 522 ; Sarju Das v. State of Gujarat, (1999) 8 SCC 508 ; Mangilal v. State of Rajasthan, 1997 RCC (Supp.) 431 ; Mubark v. State of Rajasthan, 1999 Cr LR (Raj.) 267 ; Balbir Singh v. State of Haryana, 1995 (2) EFR 237 and Haneef v. State of Kerala, 1993 Drugs Cases 152 . 7. A close scrutiny of the record of the trial court demonstrates that witnesses Abdul Qayum Sagar (PW. 1) Chhote Lal Verma (PW. 3), Shiv Raj (PW 5), Samunder Singh (PW. 7) and Laxman Kataria (PW 8) were the members of Narcotic Prevention Party. Bahadur Singh the conductor of the Bus (PW 12) and Nand Kishore Gujar the Driver of the Bus (PW 13) were examined as independent witnesses. 1) Chhote Lal Verma (PW. 3), Shiv Raj (PW 5), Samunder Singh (PW. 7) and Laxman Kataria (PW 8) were the members of Narcotic Prevention Party. Bahadur Singh the conductor of the Bus (PW 12) and Nand Kishore Gujar the Driver of the Bus (PW 13) were examined as independent witnesses. Arrest memos of appellants Hiralal and Sanwal Lal are Ex.P. 6 and Ex.P 7 and their confessional statements alleged to have been recorded under section 67 NDPS Act, are Ex.P. 8 and Ex.P. 9. A look at the arrest memos of the appellants goes to show that they were arrested on December 12, 1996 at 3.30 p.m. However, no time was mentioned on the alleged statements of the appellants Ex.P. 8 and Ex.P 9 which were recorded by Abdul Qayum Sagar (PW. 1) on December 12, 1996. The arrest memos bear the signatures of independent witnesses Bahadur Singh (PW 12) and Nand Kishore Gujar (PW 13) but on Ex.P. 8 and Ex.P. 9 only Abdul Qayum Sagar (PW 1) put his signatures. Abdul Qayum Sagar (PW 1) in the examination chief deposed that after the persons sitting on seats No. 27 and 28 shown the sign of nervousness, he unboarded them from the bus and asked them in writing " ;fn rqe pkgks rks jktif=r vf/kdkjh ds le{k ryk'kh fyok ldrs gks vFkok gekjs ;gkWa@le{k fyok ldrs gksA " In the cross examination this witness stated that he did not mention the time of recording the statements of the appellants over Ex.P 8 and Ex.P. 9. In his further cross examination though he stated that " ;g lgh ugha gS fd eSaus fjiksVZ ntZ djokbZ ml le; rd eqyfteku ds c;ku ugha fy;s gksaA " But he has not deposed that the statements of the appellants were recorded before their arrest. 8. I shall first consider the submissions advanced in regard to confessional statements of the appellants. Article 20(3) of the Constitution of India mandates that no person who is accused of an offence, shall be compelled to be a witness against himself. Where a person before becoming an accused is compelled to give evidence under section 67 of the NDPS Act and such evidence ultimately launched against him, there is no violation of clause (3) of Article 20 of the Constitution. Where a person before becoming an accused is compelled to give evidence under section 67 of the NDPS Act and such evidence ultimately launched against him, there is no violation of clause (3) of Article 20 of the Constitution. Confessional statement recorded by an officer of Narcotics Department authorised under section 42 of the NDPS Act is admissible in evidence and is not hit by section 25 of the Evidence Act or Article 20(3) of the Constitution. 9. The question that emerges at this juncture is as to whether the confessional statements Ex.P 8 and Ex.P. 9, of the appellants were recorded before their arrest or not? As already stated that the appellants were arrested through Arrest Memos Ex.P. 6 and Ex.P. 7 on December 12, 1996 at 3.30 p.m. and the confessional statements Ex.P. 8 and Ex.P. 9 were also recorded on December 12, 1996 but time of recording the statements was not mentioned. Therefore from the material on record time to record the statements of the appellants has to be assessed. Conductor Bahadur Singh PW 12 and Driver Nand Kishore Gujar (PW 3) are the attesting witnesses of the Arrest Memos Ex.P 6 and Ex.P. 7 Bahadur Singh (PW 12) in his examination in chief stated thus " mu lsEiy o vQhe dks lsEiy dj fn;k FkkA rRi'pkr~ gekjs gLrk{kj djokds gedksa jokuk dj fn;k---------iapukek vfHk;qDr ryk'kh ,oa fxjQrkjh cuk;k x;k] ftl ij ,y ls ds esjs gLrk{kj gSa tks ,Dth0ih0 6 gSA ,Dth0ih0 7 iapukek vfHk;qDr esjs lkeus cuk;k x;k------- " In the last line of his cross examination withness Bahadur Singh said that:- " vfHk;qDr lkaoj yky o ghjkyky us c;ku esjs lkeus ugha fy;s FksA " This statement goes to show that till Arrest memos Ex.P. 6 and Ex.P. 7 were drawn confessional statements of the appellants were not recorded because after Bahadur Singh put his signatures on Arrest Memos and other memos, the Narcotics Prevention Party allowed him to go and till he was present confessional statements of the appellants were not recorded. Abdul Qayum Sagar (PW 1) also did not say that confessional statements of the appellant were recorded before their arrest. Witness Nand Kishore Gujar (PW 13) did not support the prosecution story and he was declared hostile.No doubt, Laxman Kataria (PW. Abdul Qayum Sagar (PW 1) also did not say that confessional statements of the appellant were recorded before their arrest. Witness Nand Kishore Gujar (PW 13) did not support the prosecution story and he was declared hostile.No doubt, Laxman Kataria (PW. 8) Deputy Inspector in his cross examination stated that the confessional statements of the appellants were recorded in his presence by Abdul Qayum Sagar before the arrest of the appellants but his statements cannot be relied upon on the grounds that (i) he did not put his signatures on the statements Ex.P. 8 and Ex.P. 9 and (ii) Abdul Qayum Sagar in his statement did not say that confessional statements of the appellants were recorded in the presence of Laxman Kataria.Chhotelal Verma (PW 3) Superintendent Central Narcotics Bureau stated that he was throughout present at the time of search. He was subjected to a lengthy cross examination and I have carefully scanned his entire statement but he has no where stated that confessional statements of the accused were ever recorded. He has given detailed account of recovery from Sathur to Kota. In his examination in chief he stated thus-- " tIrh iapukek o vU; nLrkostkr ekSds ij rS;kj fd;s x;sA tCrh dk;Zokgh ds ckn eq[;ky; dksVk eky o eqyfte dks ysdj igaqpsA eqyfteku dks fxjQrkj fd;k FkkA " Looking to the aforequoted statements of witnesses the inescapable conclusion that can be derived is that the confessional statements Ex.P. 8 and Ex.P. 9 of the appellants were not recorded before their arrest and the said statements are hit by Article 20(3) of the Constitution of India and section 25 of the Evidence Act and can not be read against the appellants. 10. That takes me to another submission canvassed by the learned counsel for the appellants that compliance of section 50 of the NDPS Act was not established from the material on record. As said in the earlier part of this judgment that witness Abdul Qayum Sagar (PW 1) unboarded the appellants from the Bus and after they got down; option to search in front of Gazetted officer was given to the appellants, they were not required to be searched before the Magistrate, thereafter the opium was recovered from the person of Hira Lai and two journey tickets were recovered from Sanwal Lal. Search was effected in the presence of Bahadur Singh (PW 12) and Nand Kishore Gujar (PW 13). Search was effected in the presence of Bahadur Singh (PW 12) and Nand Kishore Gujar (PW 13). Bahadur Singh and Nand Kishore Gujar are independent witnesses of the search. Bahadur Mal (PW 12) stated in the examination in chief thus " nks rhu bUlisDVj okgu esa pSd djus ds fy, ?kqls rks 27 o 28 lhV uEcj ij cSBs ;kf=;ksa dks uhps mrkjk mlesa ls ,d pkS/kjh tks o`) Fkk mlds isV ij ca/kk gqvk dqN eky feyk ftldks mUgksaus vQhe gksuk crk;kA " Bahadur Singh in his statement has no where stated that before conducting search, the appellants were asked by the Prevention Party to be searched before Magistrate or Gazetted officer. The witness was not asked to identify the 'old Chaudhary' in the court.Another independent witness Nand Kishore Gujar (PW 13) did not at all support the prosecution story. Though Chhotelal Verma (PW 3) Samundra Singh (PW 7) and Laxman Kataria (PW 8) did say that option to be searched be'ore Magistrate or Gazetted officer was given to the appellants but I am unable to place reliance on their testimony as Abdul Qayum Sagar (PW 1) who conducted the search stated that only partial option to be searched before the Gazetted officer was given to the appellants. At this juncture I coisider it proper to refer the explanation given by the appellants in their statements recorded under section 313 Cr.P.C., wherein they specifically stated that they desired to be produced before the Magistrate but were not produced. One strong circumstance that also goes against the prosecution is that Abdul Qayum Sagar (PW 1) did not effect the search in the bus and every thing was allegedly done after boarding the appellants from the Bus. Witness Shiv Raj constable (PW 5) who was a member of Preventive Party, in his examination in chief told a different story that opium was recovered not from appellant Hira Lal but from appellant Sanwal Lal and he too was declared hostile. 11. Their Lordships of the Supreme Court in Koluttumottil Razak v. State of Kerala, (2000) 4 SCC 465 indicated that when law requires that the appellant must be afforded with an opportunity to have the presence of a Gazetted officer or a Magistrate the appellant has a right to be taken to the nearest Gazetted Officer or Magistrate for the purpose of conducting search in his presence. The said right cannot be sidelined as a mere formality. It was observed in para 8 of the said judgment thus "The second infirmity is that before the search was conducted no officer or Magistrate as envisaged in section 50 of the Act was called. The excuse put forward by PW 1 for not resorting to such action was that the appellant himself told that he did not require the presence of any such officer. For that matter also we have only the ipse dixit of the police officer. None of the independent witnesses stated the said version." Their Lordships of the Apex Court in para 10 of the said judgment further held that if the provisions contained in section 50 are not complied with, the accused cannot be convicted. The graver the consequences the greater must be circumspection to be adopted. 12. In the case on hand I have before me only the ipse dixit of Abdul Qayum Sagar (PW 1), a Narcotics Inspector and none of the independent witnesses supported his version. He has not followed the mandate of section 50 in letter and spirit and gave partial option to the appellants to be searched before a Gazetted officer only but according to him the appellants did not require the presence of any such officer. It appears that right provided to the appellants under section 50 was side lined by the investigating agency as a mere formality. 13. Case of Pon Adithan v. Deputy Director (supra) is distinguishable In that case the trial court and the High Court after close scrutiny of the evidence of PW 1 found her a reliable witness and their Lordships of the Supreme Court also placed reliance on her statement. The testimony of PW 1 was also supported by the confessional statement of the accused. It was admitted on behalf of the accused that confessional statement was made by him but under pressure and compulsion. The Hon'ble Supreme Court did not agree with the submission on the ground that such objection was not prompt and it was held that the confessional statement was voluntary. Whereas in the case on hand the appellants have categorically denied to have given any confessional statements and from the testimony of Abdul Oayum Sagar (PW 1) it is established that only partial compliance of section 50 was made. 14. Whereas in the case on hand the appellants have categorically denied to have given any confessional statements and from the testimony of Abdul Oayum Sagar (PW 1) it is established that only partial compliance of section 50 was made. 14. There cannot be two opinion in respect of the submission of learned Standing Counsel for U.O.I. that the public servants can not be termed as interested witnesses simply on the ground of expecting the success of the case. But in the instant cases the testimony of the public servant is untrustworthy. As already stated there are material contradictions in the statements of the prosecution witnesses. I am satisfied that evidence led by the prosecution in the instant case is unreliable and it is difficult to sustain the conviction and sentence of the appellants. 15. In the result I allow this appeal and set aside the conviction and sentence passed on the appellants Hira Lal and Sanwal Lal. They stand acquitted from the charges under section 8/18 of the NDPS Act. I direct the appellants Hira Lal and Sanwal Lal to be set at liberty forthwith unless they are required in any other case.Appeal Allowed - Conviction Set Aside. *******