JudgmentJudgment K.S.Garewal, J. 1. Dharminder Jain has filed this appeal to challenge his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act by the learned Additional Sessions Judge, Patiala vide judgment dated August 4, 1998 for possessing 620 gms of opium. He has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo rigorous imprisonment for two years. 2. Brief facts of the case are that on May 23, 1997 a police party headed by ASI Chuni Lal was on a routine patrol and was proceeding from Gurbax Colony, Patiala towards the new Rajpura Road Octroi post. When they reached near the Government Polytechnic they saw the appellant coming from the opposite side carrying a bag. The appellant on seeing the police became nervous and was stopped by the A.S.I. The appellant was told that his bag was to be searched and if he wished a Gazetted Officer could be called for the purpose. The appellant replied that he would get his bag searched in the presence of a higher police officer whereupon Shri Paramvir Singh Gill, D.S.P. was called to the spot. Shri Gill reached the spot and disclosed his identity to the appellant and also informed the appellant that if he wanted some Magistrate could be called to the spot for his search. The appellant reposed full confidence in the D.S.P. Thereupon the bag was searched and it was found to contain 620 gms of opium wrapped in glazed paper. Thereafter, the various steps in the investigation were undertaken, two samples were taken out, the case property was sealed and recovery memo was prepared. Report was sent to the Police Station on the basis of which case was registered. On the following day, the case property was produced before the Chief Judicial Magistrate, who also put his seals. On chemical analysis it was confirmed that the recovered drug was indeed opium. After completion of the investigation, the appellant was sent up for trial. 3. The learned Additional Sessions Judge, came to the conclusion that the failure of the police to join independent witnesses was not fatal but it was to be kept in mind while appreciating the evidence. Secondly, the prosecution witnesses were found to be reliable and their statements sufficient to base conviction. 3. The learned Additional Sessions Judge, came to the conclusion that the failure of the police to join independent witnesses was not fatal but it was to be kept in mind while appreciating the evidence. Secondly, the prosecution witnesses were found to be reliable and their statements sufficient to base conviction. Thirdly, it was held that the mandatory requirements of law and been complied with and lastly the recovered contraband was held to be opium. 4. The main ground for challenge in this appeal is that the appellant was never informed by Shri Paramvir Singh Gill D.S.P. (PW-2) that he had a right to be searched in the presence of a gazetted officer or a Magistrate. Shri Gill only asked the appellant whether he wanted the search effected from the Magistrate and the appellant replied that he had faith in Shri Gill. Earlier to this, A.S.I. Chuni Lal (PW.1) had told him that he was to take the search of his bag and in case it was not acceptable to him then some police officer or magistrate could be called. The appellant had replied that he wanted to be searched by some higher police officer whereupon Shri Gill was called. According to the counsel, this procedure was not in accordance with Section 50 of the Act. 5. The second ground for attack was that no independent witness had been associated with the investigation at any stage. It was not a case where no such witnesses were available. According to A.S.I. Chuni Lal (PW.1) 30/40 people had passed that way while the appellant was being interrogated and searched. He asked 2/3 people to join as witnesses but no independent witness was associated. Therefore, there was no independent corroboration of the police investigation at the spot. The police could well have captured the appellant, taken him to the Police Station and prepared the documents at the Police Station. 6. The mandatory requirement of Section 50 of the Act is that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, 42 or 43, he shall, if such person so requires, 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. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate. The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. No female shall be searched by anyone excepting a female. The above provision has been interpreted by Honble Supreme Court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 (SC) : 1999(6) SCC 172 and K. Mohanan v. State of Kerala, 2000 SCC (Crl.) 1228. 7. It is required to be determined whether the above provision has been violated in this case. Statement of A.S.I. Chuni Lal (PW.1) was that the accused had been intercepted near the polytechnic. He was carrying a bag in his hand. He was stopped on suspicion and was told that his bag was to be searched and in case this was not acceptable to him then some other police official or magistrate could be called. The accused had asked to be searched in the presence of some higher police officer. Consequently, Shri Paramvir Singh Gill (PW.2) reached the spot and told the accused that he was D.S.P. (City) Patiala and in case the appellant wanted some Magistrate could be called to the spot. The accused replied that he had faith in D.S.P. Consent memo Ex.PA was recorded. 8. The statement of Shri Gill (PW.2) was to the effect that he received a wireless message from A.S.I. Chuni Lal and reached the spot. At the spot, he found accused present with the police party. Shri Gill disclosed to the accused his name and the fact that he was posted as DSP Patiala and asked accused whether he wanted the search effected from the magistrate but he replied that he had faither in Shri Gill. 9. The Constitution Bench of the Supreme Court of India in Baldev Singhs case, 1999(3) RCR(Crl.) 533 (supra) had categorically held that it was imperative for the authorised officer to inform the accused of his right under Section 50(1) for being taken to the nearest Gazetted Officer or Magistrate for search. Failure to inform the accused about the existence of his right would cause prejudice to the accused. Failure to inform the accused about the existence of his right would cause prejudice to the accused. If the accused who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate, this would not amount to communicating to him that he had a right under the law to be so searched and Section 50 would be violated. The application of the provision as laid down in Baldev Singhs case (supra) was demonstrated in K. Mohanans case (supra) where the officer had not told the accused of his right under the law but had only sought his opinion whether he wanted to be searched before a gazetted officer or Magistrate. It was held that there was non-compliance of Section 50 and consequently the evidence of the officer could not be acted in the absence of any other independent evidence to show that the accused was found in possession of the contraband. 10. In the present case, the provision of Section 50 had clearly been violated. The appellant was searched before a gazetted officer of the police but prior to this he had not been told of his statutory right. There was also a total lack of independent corroboration of the search or of the fact that the accused had indeed been apprehended near the polytechnic carrying a bag containing 620 gms. of opium. The place of recovery was a busy thoroughfare and frequented by all types of traffic as admitted by ASI Chuni Lal (PW.1) in cross-examination. The time of recovery was 4.05 P.M. Furthermore, the witness had admitted that he had asked 2/3 passers-by to become witnesses but they had refused to do so. People had been passing by while appellant was present at the spot and about 30/40 persons had passed. All of them had refused to join the investigation. D.S.P. had also asked the A.S.I. to call private witnesses but none were available. The small tin box in which sample had been put and the other tin box in which the bulk opium was put had been brought from the shop of betel-nut seller (Panwala) by H.C. Darbara Singh. Therefore, that panwala could have been associated but even this was not done. The small tin box in which sample had been put and the other tin box in which the bulk opium was put had been brought from the shop of betel-nut seller (Panwala) by H.C. Darbara Singh. Therefore, that panwala could have been associated but even this was not done. The truck union on the Patiala-Rajpura road was only 150 yards from the place of the recovery and though an attempt was made to call some one from that union but it failed as no one was present there. 11. The summary of evidence culled from the cross-examination of ASI Chuni Lal (PW.1) shows that the accused had been intercepted while coming along a busy thoroughfare in the middle of the afternoon but not a single independent witness from the public was joined to witness the search. After A.S.I. Chuni Lal had detained the accused and requested the D.S.P. to reach the spot there was ample time to arrange for witnesses but no serious effort seems to have been made in that direction. It is also not believable that no one was found at the truck union which was only 150 yards away. It is well known that a truck union is always teeming with people particularly the truck union of a city like Patiala. It is simply not acceptable that no one was present there. It is obvious that, for reasons best known to the Investigators, independent witnesses were not joined and for this reason no independent corroboration of the investigation was arranged for. It may have been a different thing if witnesses had been joined but had refused to support the prosecution at the trial. In the present case, the entire investigation was done without associating independent witnesses. This necessarily casts a shadow of doubt and a veil of secrecy on the entire episode. 12. The conclusion reached as a result of the above discussion is that the appellant had not been informed of his right under the law to be searched in the presence of a gazetted officer or a Magistrate and Section 50 was thereby violated. Furthermore, in the absence of an independent witness to show that the appellant was in possession of contraband article, the evidence of A.S.I. Chuni Lal and Shri Paramvir Gill, PW.1 and PW.2 cannot be accepted. 13. Resultantly, this appeal is accepted. Furthermore, in the absence of an independent witness to show that the appellant was in possession of contraband article, the evidence of A.S.I. Chuni Lal and Shri Paramvir Gill, PW.1 and PW.2 cannot be accepted. 13. Resultantly, this appeal is accepted. The judgment of the learned Additional Sessions Judge, is hereby set aside. The appellant is consequently acquitted of the charges. Appeal allowed.