JUDGMENT 1. - This appeal is directed against the judgment dated 24.3.1998 passed by the Special Judge, Narcotic Drugs and Psychotropic Substances Cases, Jhunjhnu convicting the accused appellant for offence under Section 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the NDPS Act) and sentencing him to undergo 10 years rigorous imprisonment with a fine of Rs. 1 lac. 2. Brief facts, leading to this criminal appeal are that on 10.2.1995 at 8.45 PM, PW 6 Shri Hulasram. Station House Officer, Kotwali, Jhunjhunu received information that a person wearing Punjabi Kurta and speaking in Punjabi language is possessing poppy straw in a plastic bag and is trying to go out. He recorded the information in Rojnamcha Ex.P 10 at serial No. 290. He also informed the Deputy Superintendent of Police, Jhunjhunu vide letter Ex.P 9. Thereafter, the SHO Hulasram alongwith Madan Singh, Head Constable, Bali Singh, Head Constable, Satyavir Singh, Constable No. 599 and Satyavir Constable No. 558 left the Police Station and reached Khema Sati Chauraha at 9.00 PM in a Government Vehicle No. RJ 18-C 0611, where he found a person of the description as informed by the informant standing there, having bag (katta) of white colour. There upon, the SHO having informed two motbirs Sarvashri Suresh Kumar S/o Shri Hanuman Prashad and Mangal Chand S/o Shri Mooranmal of the information, proceeded towards the aforesaid person. On seeing the police, the person lifted the bag and started moving towards the darkness. The SHO with the help of police personnels made him to stop and on asking about his name, he disclosed his whereabouts in Punjabi style as Billu S/o Shri Suchha Singh, by caste Majmi, aged 30 years, R/o near Sangrur Railway Station, and it was disclosed to him that the SHO has received information about poppy straw in a bag in his possession and that his search has to be conducted. He was informed whether he wants to get the search conducted either in the presence of a Magistrate or by a Gazetted Officer and he agrees search can also be conducted by the SHO himself. The accused agreed to get the search conducted by the SHO himself. He was informed whether he wants to get the search conducted either in the presence of a Magistrate or by a Gazetted Officer and he agrees search can also be conducted by the SHO himself. The accused agreed to get the search conducted by the SHO himself. After recording the consent of the accused in memo Ex.P. 4, the SHO conducted search and on opening the bag of while colour which was in possession of the accused, it was found that the bag contained powder of poppy straw. On asking for licence, the accused said that he does not have licence. Having found the act of the accused punishable under the NDPS Act, 1985, the SHO seized the aforesaid poppy straw vide seizure memo Ex.P. 1 got it weighed, which was found weighing 24.800 KI. gms., out of which he took sample of 500 grams of contraband in a plastic bag of red colour and sealed the sample and remaining contraband separately and marked as A and B respectively and also arrested the accused vide arrest memo Ex.P 5. He also prepared memo of specimen seal impression Ex.P. 11 SHO deposited the seized contraband and its sample in Malkhana and registered a case vide FIR Ex.P. 12 and also made endorsement in Rojnamcha Ex.P. 13. 3. During investigation PW 7 Atar Singh prepared site plan Ex.P 2 and recorded the statement of witnesses under Section 161 Cr.P.C. The sample of contraband was sent for chemical examination to the Director, Forensic Science Laboratory, Jaipur vide letter dated 25.2.1995, Ex.P 4, the receipt of which is Ex.P 3 and FSL report is Ex.P 8. 4. After completion of investigation, the police submitted a charge sheet against the accused in the court of Special Judge, NDPS Cases, Jhunjhunu. 5. The learned trial court on the basis of the material on record and hearing the arguments of the parties, framed charge against the accused under Section 8/15 of the NDPS Act. The charge was read over to the accused, to which he pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined PW 1 Madan Singh, PW 2 Pran, PW 3 Suresh Kumar, PW 4 Bali Singh, PW 5 Mahaveer Singh, PW 6 Hulas Ram and PW 7 Atar Singh and also exhibited some documents. 6. During trial, the prosecution in support of its case examined PW 1 Madan Singh, PW 2 Pran, PW 3 Suresh Kumar, PW 4 Bali Singh, PW 5 Mahaveer Singh, PW 6 Hulas Ram and PW 7 Atar Singh and also exhibited some documents. 6. After completion of trial, the learned Special Judge, NDPS Cases held the accused guilty of the offence charged with and convicted and sentenced him as aforementioned. 7. The learned counsel for the accused appellant while challenging the conviction and sentence awarded to accused appellant, by conferring to the prosecution evidence has pointed out the non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances, Act and vehemently contended that the appellant is entitled to be acquitted by this Court. 8. Under the provisions of Section 50 of the Act, the appellant was required to be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. The above question came up for consideration in the case of State of Punjab v. Balbir Singh ( AIR 1994 SC 1872 ) and the Apex Court held as under:- "On prior information the empowered officer or authorised officer while acting under Section 41 (2) of 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial." 9. The Apex Court in the case of State of Punjab v. Baldev Singh and Others ( AIR 1999 SC 2378 ) , held as under:- (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-Section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate may not vitiate the trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit articles, recovered from his person, during a search conducted in violator of the provisions of Section 50 of the Act. 10. In Badshah v. State (2000 Cr.LJ 2119) , the Delhi High Court relying upon the recent judgment of the Apex Court in T. Hamza v. State of Kerala (1999(3) AD (Cr.) SC 413) has observed that the accused has to be informed of his right to be searched in presence of a Gazetted Officer or a Magistrate, and there has to be a full compliance of Section 50 of the Narcotic Drugs and Psychotropic Substance Act, and substantial or partial compliance would be violative of Section 50 of the NDPS Act. 11. This Court, in the case of Ballu @ Sheruddin v. State of Rajasthan (2000(2) RCC 920) has taken a view that partial compliance would be violative of Section 50 of the NDPS Act and the compliance should be made in the letter and spirit of Section 50 of the NDPS Act. 12. Thus, on the basis of the above pronouncement, it is now settled law on the point that compliance of Section 50 of the Act is imperative and its non-compliance would render the recovery suspicious and result in vitiating the conviction and sentence of the accused. 13. To consider the question whether or not there was compliance of the provisions of Section 50 of the NDPS Act, it is necessary to examine the evidence on record. 14. PW 6 Hulas Ram has stated that he informed the accused of his right to be searched in the presence of a Magistrate. 13. To consider the question whether or not there was compliance of the provisions of Section 50 of the NDPS Act, it is necessary to examine the evidence on record. 14. PW 6 Hulas Ram has stated that he informed the accused of his right to be searched in the presence of a Magistrate. The accused permitted him to take his search and his consent was recorded in Ex.P 4 on which accused put his thumb impression. 15. PW 1 Madan Singh has stated that Station House Officer informed the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate. 16. PW 3 Suresh Kumar, motbir of seizure memo has not supported the prosecution version and resultantly he has been declared hostile. He has categorically stated that police got his signatures on blank paper, and he did not see the accused at that time. 17. PW 4 Bali Singh has stated that Station House Officer informed the accused of his right to be searched in the presence of a Gazetted Officer. 18. Having glanced at the consent memo Ex.P 4 it appears that the accused put his thumb impression, meaning thereby that accused is an illiterate person. The independent witness Suresh Kumar, motbir of seizure memo has not supported the prosecution version and another motbir Mangal Chand has not been examined by the prosecution. 19. The question that arose for consideration of this court is whether the thumb impression of an illiterate suspect on his consent that the arresting officer himself can have his search, recorded in the consent memo requiring him to have his search conducted either in the presence of a Gazetted Officer or a Magistrate would be taken to be sufficient compliance of the mandatory provisions of Section 50 of the NDPS Act, particularly when it has not been supported by the independent witnesses. 20. In the case of State of Punjab v. Om Prakash, (1997 Cr.LJ 4611) held as under : "But, here is a case where a statutory duty is cast on the investigating officer under Section 50 of the Narcotic Drugs and Psychotropic Substances Act to inform the accused of his right to be searched before either a gazetted officer or a Magistrate. This duty is not to be lightly avoided by the investigating agency, by stating that the investigating officer informed the accused of his right but the accused declined the offer and stated that the investigating officer himself can search him. If that is going to be the case of the investigating agency then they should let in cogent and acceptable evidence and that too, of independent witnesses. This is because a very valuable and statutory right that is given to the accused is sought to be taken away by this alleged concession by the accused, and also because stringent punishment is imposed upon the accused, who is found guilty under the NDPS Act. So, in the present case where the accused is alleged to have subscribed his thumb impression to the memo, by and under which the accused is alleged to have given his consent for being searched by the investigating officer himself, and when it is not attested by independent witnesses, the same cannot be acted upon or taken to be evidence of the accused having agreed to be searched by the investigating officer himself. This is especially so when it is seen that the accused is illiterate which is evident from the fact that he only subscribed his thumb impression to the alleged consent memo." 21. The above observations fully applies to the case in hand as in the present case also the accused is an illiterate person and he only subscribed his thumb impression to the consent memo. No independent witness has supported the fact that accused was informed of his right to be searched either in the presence of a Gazetted Officer or a Magistrate and accused gave consent to the SHO for taking of his search by him. So, in the circumstances narrated above it cannot be taken to be evidence of the accused having agreed to be searched by the SHO himself. 22. If viewed from other evidence, it is further not established that both the options were given to the accused. The SHO has categorically deposed that the informed the accused of his right to be search in the presence of a Magistrate. 23. On the other hand, PW 4 Bali Singh has deposed that SHO informed the accused of his right to be searched in the presence of a Gazetted Officer. The SHO has categorically deposed that the informed the accused of his right to be search in the presence of a Magistrate. 23. On the other hand, PW 4 Bali Singh has deposed that SHO informed the accused of his right to be searched in the presence of a Gazetted Officer. The statement of Bali Singh and Hulas Ram are contradictory to each other and from their statement, it is evident that only partial option was given to the accused. In the case of Mala Ram v. State of Rajasthan (1996 Cr.LR (Raj.) 183) it was held that; "it is compulsory that the accused should be given both the options i.e. whether he wanted the search in the presence of a Magistrate or a Gazetted Officer. Where both the options are not given, the provisions of Section 50 of the NDPS Act are not fully complied with. 24. The result of the above discussion is that the prosecution has failed to establish the compliance of Section 50 of the NDPS Act. hence the search of the accused conducted by Hulas Ram cannot be held to be in accordance with the Section 50 of the NDPS Act. 25. A statutory duty is cast upon the prosecution to establish that the sample remained intact and the seals were not disturbed throughout from the stage or recovery to the stage of chemical examination. 26. PW 2 Pran Constable has stated that on 7.3.1995 at 4.30 A.M. Malkhana Incharge PW 4 Bali Singh gave him one packet of sample for depositing in the State Forensic Science Laboratory, Jaipur. He deposited the sample in FSL on the same day at 10.05 A.M. or 10.00 A.M. and handedover the receipt Ex.P. 3 at Police Station. But according to the Malkhana Incharge PW 4 Bali Singh, he handedover the sample to Pran on 6.3.1995 at 8.00 PM. In Malkhana register Ex.P. 7 an endorsement was made to the effect that sample was handedover to Pran, Constable on 6.3.1995, but the time of handing over is not mentioned. 27. In the circumstances, the prosecution has failed to prove that if sample was handedover on 6.3.1995 at 8.00 PM. to Constable Pran than where it remained till next day up till 4.00 A.M. and whether it had remained in sealed condition or not and in whose custody it remained. 28. The recovered quantity of the contraband was 24 Kg. 27. In the circumstances, the prosecution has failed to prove that if sample was handedover on 6.3.1995 at 8.00 PM. to Constable Pran than where it remained till next day up till 4.00 A.M. and whether it had remained in sealed condition or not and in whose custody it remained. 28. The recovered quantity of the contraband was 24 Kg. 800 gram as is evident from perusal of Ex.P 1 seizure memo, out of which a sample of 500 gram was taken and the quantity that remained after the sample was taken was 24 Kg. 300 gram. But in Ex.P 7 Malkhana register, there is an endorsement to the effect that two packets were deposited, one containing 24 Kg. 800 gram and another was of 500 gram. Since, the total quantity of recovered article was 24 Kg. 800 gram, how the remaining quantity can be 24 Kg. 800 gram, after taking the sample of 500 gram. 29. In the case of Bhura Lal v. State, (RCC 2000(2) 885) it was held that the prosecution has failed to prove that the sample remained sealed and intact and the possibility of tampering with the sample and seal cannot at all be ruled out and on this ground the appeal was allowed and conviction and sentence of the accused was set aside.In the case of Bhanwar Singh v. State, (1996 RCC 6) it was held that it is necessary that the prosecution must prove beyond all reasonable doubt that the samples remained intact and there seals were not disturbed throughout from the stage of recovery to the state of chemical examination by the FSL. 30. In the case of Kulwant Singh v. State, (1998 Cr.LJ 745) it was held that in view of material contradiction in the statements of constable and SHO regarding sending sample to FSL, the possibility of tempering with seal and sample cannot be ruled out and, therefore, the report of FSL cannot be made basis for conviction. 31. In the case in hand, there is material contradiction in the statement of Bali Singh, Malkhana Incharge and Pran, Constable regarding the date and time of handing over the sample, therefore, the possibility of tempering with the sample and seal cannot be ruled out and the FSL report cannot be made basis for conviction of the accused appellant. 32. 31. In the case in hand, there is material contradiction in the statement of Bali Singh, Malkhana Incharge and Pran, Constable regarding the date and time of handing over the sample, therefore, the possibility of tempering with the sample and seal cannot be ruled out and the FSL report cannot be made basis for conviction of the accused appellant. 32. It is also to be mentioned that no seal impression was affixed on the Malkhana register. PW 6 Hulas Ram did not use his seal, seal the sample. PW 6 Hulas Ram in his statement has stated that he used the seal on which letters HC were engraved and that seal was used for a long time at police station. He could not disclose as to where that seal is lying at present. PW 4 Bali Singh has also stated that seal remained with C.l. and that seal was not deposited in Malkhana. He even could not state that what was written on the seal. 33. In the case of Annu Khan v. State, (1995 Cr.LR (Raj.) 762) it was held that as per provisions of Section 55 of the Act an officer incharge of the police station has to affix his seal on the seized contraband articles and the representative samples. Since, the seized contraband articles and its sample have been sealed by the seal of the Police Station, Jaisalmer, the possibility that the seals of the representative samples could have been tampered with till they reached the State Forensic Science Laboratory, cannot be ruled out. 34. In the case of Bhanwar Singh v. State of Rajasthan, (RCC 1990 268) it was held that it is contemplated under Section 55 of the NDPS Act that samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. Legislature never contemplated a general seal which could be in possession of any constable or any other officer of the police station and specifically wanted the seal of the officer incharge of the police station to be affixed. 35. In the case in hand, PW 6 Hulas Ram used the seal of the police station in violation of Section 55 of the NDPS Act and the possibility, of tampering with seal and sample cannot be ruled out. 36. 35. In the case in hand, PW 6 Hulas Ram used the seal of the police station in violation of Section 55 of the NDPS Act and the possibility, of tampering with seal and sample cannot be ruled out. 36. Since, there is non-compliance of the mandatory provisions of the Section 50 of the Act and further, it is not proved beyond reasonable doubt that the sample remained intact and the seals were not disturbed throughout from the state of recovery to the stage of chemical examination, the conviction and sentence of the accused appellant for offence under Section 8 read-with Section 15 of the NDPS Act deserves to be quashed and set-aside. 37. The result of the above discussion is that the appeal filed by appellant Billu deserves to be allowed and accordingly, it is allowed. The judgment dated 24.3.1998 passed by the learned Special Judge, NDPS Act Cases, Jhunjhunu convicting and sentencing the accused appellant is quashed and set-aside and the accused appellant is acquitted of the charges levelled against him. He is in jail and he shall be released forthwith, if not required in any other case. The fine, if deposited, be refunded to the accused appellant.Appeal allowed. *******