JUDGMENT 1. - This criminal appeal by appellant arises out of the judgment dated 19.04.95 passed by the District & Sessions Judge, Jaipur District, Jaipur by which he has convicted the appellant under Section 8/18 of the Narcotics Drug and Psychotropic Substances Act, 1985 (for short, the NDPS Act) and sentenced him to undergo 12 years rigorous imprisonment with a fine of Rs. one lakh, in default of payment of fine, to further undergo two years rigorous imprisonment. 2. The facts of the case are that a credible information was received in the office of Superintendent of Police, C.B.I., SIU XI, New Delhi on 22.10.91, which was reduced to writing and registered. The information was to the effect that one Dinesh Kumar Jain @ Jagdish S/O Shri Gopi Lal Jain, R/O Pipli Chowk, Village Padava along with others from Jhalawad and Jaipur is indulging in the nefarious trade of Narcotic drugs, specially opium and is likely to supply a huge quantity of opium near Hotel City Centre near Bus Stand Jaipur on 26.10.1991. Dy. S.P. CBI Shri R.S. Saroha formed raiding party consisting of himself, ASI Bal Kishan, HO Jagram, Constables Raj Kumar, Lalit Singh, Surjan Singh and left Delhi by staff vehicle No. DL 2C B 7030 and by Bus on 24.10.91 in the evening in two groups. All of them assembled in the office of S.R, C.B.I., Jaipur on 25.10.91 at about 10.00 AM. At about 1 PM the informer informed him that Dinesh @ Jagdish would be delivering huge quantity of opium to the unknown party tomorrow i.e. on 26.10.91. Thereafter, two independent witnesses, namely, Sitesh Kumar Verma and Prem Kumar Doi, both Inspectors of Income Tax Department were procured through CBI Office. Inspector N.S. Virk also joined the raiding party on 26.10.91. 3. On 26.10.91 at 11.00 AM. the raiding party including the independent witnesses assembled near Bus Stand, Taxi Parking. The informer also reported there and confirmed that the suspect would be coming between 12.00 noon and 1.30 PM near Hotel City Centre near Bus Stand, to deliver the opium to the unknown party from station road side. 3. On 26.10.91 at 11.00 AM. the raiding party including the independent witnesses assembled near Bus Stand, Taxi Parking. The informer also reported there and confirmed that the suspect would be coming between 12.00 noon and 1.30 PM near Hotel City Centre near Bus Stand, to deliver the opium to the unknown party from station road side. After briefing the members of the said raiding party about the latest information, he deployed them at strategic points on way to Hotel City Centre from Station Road side at about 11.40 A.M. At 12.20 P.M. a person was seen coming from station road in the lane towards the Hotel City Centre with two plastic (fertilizer) begs, one on the left shoulder and another in the right hand. When the said person reached near Mewar Hotel's side gate (in this lane), the informer pointed out that he is that wanted suspect Dinesh and then the informer slipped away from the spot. He sounded the party members through a pre-determined signal and encircled the suspect with the help of members of the raiding party. He disclosed his identity and to the party members and witnesses and the purpose of encircling him. He become nervous and non-plused. On asking, he disclosed his name as Dinesh Kumar Jain @ Jagdish S/O Gopi Lal Jain R/O Pipli Chowk Village Padeva. District Jhalawar Rajasthan, putting down both be the sacks. On asking about the contents of the sacks, he disclosed reluctantly that it is opium approx. 50 Kgs. in both the sacks. Thereafter, he was asked whether he wanted to have his search conducted before a Magistrate, to which he denied. Then he was asked to open sacks. He opened both the sacks. One of the sack was containing a funny beg which in turn was containing a blackish coloured canvass beg containing opium. The other sack was opened and was found to contain one blackish coloured canvass bag containing opium. By that time a lot of people assembled there and he asked them if any body wants to become witness but no body came forward. Apprehending more gathering at the spot, he alongwith members of party, witnesses and suspect with both bags withdrew to Hotel Vikram to complete the proceedings. Field test was conducted after drawing one sample from each sacks and test confirmed that it was opium. Apprehending more gathering at the spot, he alongwith members of party, witnesses and suspect with both bags withdrew to Hotel Vikram to complete the proceedings. Field test was conducted after drawing one sample from each sacks and test confirmed that it was opium. Both the sacks were got, weighed from near by Kabari Shop in this very lane in the presence of Inspector Virk, ASI Bai Kishan, both independent witnesses and Dinesh and on weighing they were found to be of 25,200 Kgs and 25,700 Kg. the bag were marked "A" and "B". Thereafter, he alongwith members of raiding party returned back to Hotel Vikram for completing the proceedings. Two representative samples each weighing 100 grams were drawn from each sack and were marked "A/1 and "A/2 (samples from sack "A") and B/1 and B/2 (Samples from sack "B"). Samples were put into polythene bags (small) and tied with the gunny thread an in-turn kept the same in paper envelope and sealed with the seal "SPE 58". The remaining opium was sealed in the same packages with the said seal. He along with independent witnesses and Inspector Virk put their signatures on the sealed packages. Fescimile seal impressions of the said seal "SPE 58" were obtained on the separate sheet of paper under the signatures of independent witnesses and CBI Officers, Vide Ex.P 4. The seal impressions were also affixed on each page of the memo. The above said case property was taken into possession through the seizure memo, Ex.P.1. the seal after use was handed over to independent witness Shri Sitesh Verma under proper receipt, Ex. P. 5. The accused Dinesh Kumar Jain S/o Gopi Lal Jain was arrested on the spot apprising him the grounds of his arrest and his personal search was conducted through a separate memo, Ex.P.3 under the signatures of independent witnesses and CBI officers. To seal the very small quantity of opium about 5 grm., recovered from the personal search of Dinesh the seal "SPE 58" was taken back from Shri Sitesh Verma and the seal was handed over again to him after sealing the said opium. The package of this quantity of opium was put in polythene bag and then in envelope marked "P". The proceedings concluded at 2.45 P.M. The site plan. The package of this quantity of opium was put in polythene bag and then in envelope marked "P". The proceedings concluded at 2.45 P.M. The site plan. Ex.p. 2 showing the place of occurrence was prepared on separate sheet under the signatures of independent witnesses and CBI Officers. 4. Shri R.S. Saroha submitted a written report Ex.P 11 to the Superintendent of Police, CBI, New Delhi describing the entire proceedings and his conclusion that the above facts, disclosed the commission of offences punishable u/s 18 and 29 r/w 18 of NDPS Act, 1985 Shri Gopi Lal Jain R/o Pipli Chowk, Village Padeva, District Jhalawar, Rajasthan and accordingly requested that a case may kindly be registered against him for the purpose of investigation. 5. On the basis of the above written report Ex.p. 11, a case No. 10/91-SIU (XI) was registered vide FIR Ex.P.12 on 26.10.91. The statement, EX.P.13, of Shri Raj Singh Saroha was also recorded under Section 161 Cr.P.C. by the Dy. S.P., C.B.I., New Delhi, the Hindi version of his statement is (Ex.P.13/A), On the written report Ex.P.11, the S.P., CBI entrusted investigation to Shri Virk. The samples marked A/I and B/1 were also sent to the central, Forensic Science Laboratory vide letter dated 28.10.91, Ex.P.6 On chemical examination, the samples marked A/1 and B/1 gave positive test for opium vide report of FSL Es. p. 9. 6. After completion of entire formalities, a charge sheet Ex. P.20 was submitted against the accused appellant for offence under Section 8/18 of the Act in the court of learned Sessions Judge. 7. Learned trial court after hearing counsel for the accused and the Public Prosecutor and having/perused the material on record framed charge against the accused under Section 8/18 of the Act. The charge was read over to him, to which he pleaded not guilty examined six witnesses to prove its case and exhibited as many as 20 documents, thereafter, the accused was examined under Section 313 Cr.P.C. He did not examine any witness in his defence. 8. The trial of the case resulted into conviction of the appellant under Section 8/18 of the Act and accordingly the appellant was sentenced as aforesaid. Hence this appeal. 9. Mr. H.C. Ganeshia, counsel for the accused appellant has, inter-alia, assailed the conviction on grounds that there was complete non-compliance of the mandatory provisions of See. 42 and Section 50 of the Act. Hence this appeal. 9. Mr. H.C. Ganeshia, counsel for the accused appellant has, inter-alia, assailed the conviction on grounds that there was complete non-compliance of the mandatory provisions of See. 42 and Section 50 of the Act. He submitted that the information received was required to have been sent to the immediate official superior. The officer who received the information was obliged to reduce the information to writing as provided in sub-Section (1) of Section 42 and then to discharge its obligation to send a copy thereof to his immediate official superior as per the requirements of sub-Section (2) of Section 42 of the Act. In the present case, neither the information was reduced to writing nor it was sent to the official superior as required under Section 42 of the Act and therefor, the appellant is entitled to acquittal only on this ground. 10. Learned counsel vehemently contended that the prosecution has further fails to establish compliance of the provisions of Section 50 of the Act. Referring to the evidence on record, he argued that the accused appellant was not given option of his search being conducted in presence of a Magistrate or a Gazetted Officer as required under Section 50 of the Act. He submitted that failure to comply with the requirements of the same renders the recovery of contraband article illegal and vitiate the conviction and sentence of the accused appellant on the basis of possession of such contraband items. 11. On the contrary, learned public prosecutor has supported the judgment of the trial court and has submitted that in the present case, the provisions of Section 42 of the Act not at all applicable as it was a case of personal search of a person in a public place and therefore, it was not necessary to taken down the information in writing or to sent a copy thereof to his immediate official superior. He also submitted that provisions of Section 50 of the Act have been fully complied with and the prosecution has been able to prove beyond reasonable doubt that the accused was informed of his right to be searched strictly in accordance with the provisions of Section 50 of the Act. He submitted that the findings recorded by the trial court on the question of compliance of the aforesaid provisions are based on proper appreciation of evidence and calls for no interference. 12. He submitted that the findings recorded by the trial court on the question of compliance of the aforesaid provisions are based on proper appreciation of evidence and calls for no interference. 12. I have heard learned counsel for the appellant and the learned Public Prosecutor and perused the Judgment under appeal and the record of the case. 13. Before I avert to the argument as to the non-compliance of the requirements of Section 42 of the Act as argued by the counsel for the accused appellant, it has to be seen whether the provisions of Section 42 of the Act are at ail applicable in the facts and circumstances of the case in hand. 14. The provisions of Section 42 of the Act are attracted only when the authorised officer proposed to enter, into any building and conveyance or enclosed place. In the case of search and seizure in public places the provision of Section 43 of the Act are applicable and not the provisions of Section 42. To proceed further it would he appropriate to refer the provisions of Section 43 of the Act, which read as under:- "Power of seizure and arrest in public places-Any officer of any of the departments mentioned in section 42 may : (a) Seize, in any public or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and along with such drug or substance, any animal or conversance of article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation - For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public". 15. In the present case, the accused as per the information was coming from the side of railway station towards Hotel City Centre. Explanation - For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public". 15. In the present case, the accused as per the information was coming from the side of railway station towards Hotel City Centre. He was having two bags, one on his left shoulder and another in his right hand. When he reached near Mewar Hotel, the raiding party encircled and trapped him on the road itself. The raiding party disclosed their identity and thereafter, search and seizure who was conducted then and there. Thus, admittedly this is a case of personal search of the accused conducted in a public place. 16. A reading of the provision of Section 43 shows that for seizure of any narcotic drugs and psychotropic substance in any public place and for detention and search of any person whom the officer has reason to believe to have committed an offence punishable under Chapter IV, and for his arrest, it is not necessary to take down the information in writing and then to transmit a copy thereof to his immediate official superior. 17. In similar facts, the Division Bench of the Rajasthan High Court in the case of Hardeep Singh v. State of Rajasthan, RLW 2001 (1) RAJ 188 while answering the legal question about the applicability of the provision of Section 42 and 43 of the NDPS Act referred to it, set at rest the controversy and relying upon the decision of the Apex Court in Sayara Puri v. State of Rajasthan, (1999 Cr.L.R. (SC) 64) : RLW 1999 (1) SC 110 and further quoted the findings in that case: "Thus the accused was found sitting on a public road and therefore, neither the procedure under Section 42 (2) of the Act was required to be followed nor was the site plan required to be prepared. and, answered the reference in the following terms:- In view of the aforesaid we answer the reference as follows:- "that the provisions of Sub-section (1) and (2) of the Section 42 of the NDPS Act does not apply to the Search of parsons in public places as defined in explanation given in Section 43 of NDPS Act". and, answered the reference in the following terms:- In view of the aforesaid we answer the reference as follows:- "that the provisions of Sub-section (1) and (2) of the Section 42 of the NDPS Act does not apply to the Search of parsons in public places as defined in explanation given in Section 43 of NDPS Act". Having answered the question referred we direct that the appeal will now be placed before learned Single Judge taking up such matter for decision on merits.'' 18. In view of above and in the facts and circumstances of the present case, since the accused was detained on a public road and search and seizure of opium was made then and there, and therefore, I am of the considered view that the provision of Section 42 of the Act does not apply as this being a Search of a person in public place as defined in explanation given in Section 43 of the Act. 19. Section 50 of the Act is applicable only in the cases of search of any person. Having held that this was a case of search of the accused the application of Section 50 comes into play. There cannot be any dispute on the point that when any officer duly authorised under Section 42 of the Act is about to search a person under Sections 41,42 and 43, he is bound to inform the person concerned of his legal right to have his search conducted either in presence of a Magistrate of a Gazetted Officer. 20. In the similar facts as involved in the present case, their Lordships of the Supreme Court in the case of Namdifrancis Nwazor v. Union of India and another, (1997) CCR 27 (SC) while dealing with the question of compliance of the provisions of Section 50 of the Act, observed : "On a plain reading of sub Section (1) of Section 50, it is obvious that it applies to cases of Search of any person and no search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to Sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This position becomes clear when we refer to Sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for Searching the goods of female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the Search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the persons of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So on the facts of this case it is difficult to hold that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case." 21. The question as to the effect of non-compliance of the provision of Section 50 came up for consideration before the Hon'ble Supreme Court in catena of decisions. 22. In State of Punjab v. Balbir Singh (Supra), the Apex Court held that 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. 23. 23. In State of Punjab v. Baldev Singh and others, (1999) 6 SCC 172 , the Constitution Bench of the Supreme Court after considering number of cases including Balbir Singh's case have held that It is imperative for the investigating officer to inform the suspect, orally or in writing, about his right to be searched before a gazetted officer or a Magistrate. Failure to give such information may not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only on the basis of possession of such illicit article. The Hon'ble Court Further held that if the person so informed requires to be searched before a gazetted officer or a Magistrate the empowered officer is obliged to comply else it would render the search and conviction solely based on it bad. 24. In the aforesaid case, the Constitution Bench have considered the various questions relating to interpretation of Section 50, the obligator character of the provisions therein and the consequence of the non-compliance with the requirements. On a detailed discussion of the various contentions raised and the previous decisions of the Apex Court in the matter, their Lordships of the Constitution Bench held as under: "To be searched before a gazetted officer or a Magistrate, if the suspect to requires, in an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and credit worthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is however, not necessary to give the information to the person to be searched about his right in writing. It is however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of the Magistrate or a gazetted officer, at the time of the intended search. The Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with." 25. In para 57 of the Judgment, the conclusions arrived at by the Constitution Bench have been summed up as below : "(1) That when an empowered officer or duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned 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 not necessarily be an 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 illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act." 26. Recently in T. Hamza v. State of Kerala, (2000) 1 SCC 300 ) , after considering various previous cases and quoting the aforesaid observations of the Constitution Bench in Baldev Singh's case (supra), the Apex Court have held that since there was non compliance of the provisions of Section 50 (1) of the Act before effecting the search and seizure, the conviction of the appellant was unsustainable. 27. In Badshah v. State, (2000 Cr.L.J. 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. 28. 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. 29. 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. 30. In the present case, to deal with the argument that there was non-compliance of the provisions of Section 50 it would be necessary to look at the evidence and the record. 31. Ex.P.1 is the seizure memo, prepared by Shri R.S. Saroha, Dy. S.P, a perusal of which shows that only a partial option was given to the appellant, inasmuch as Shri Saroha asked the appellant "whether he wanted to be searched before a Magistrate, to which he denied." P.W.1 Sitesh Verma, a motbir has also stated in his examination that option of search before a Magistrate only was given to the appellant. P.W. 5 Niranjan Singh has stated that the Dy.S.R asked Dinesh appellant whether he wanted to be searched before a Magistrate or a Gazetted Officer. P.W. 5 Niranjan Singh has stated that the Dy.S.R asked Dinesh appellant whether he wanted to be searched before a Magistrate or a Gazetted Officer. He further stated that Shri Saroha also asked the appellant that he himself is a Gazetted Officer, to which Dinesh agreed and said that he himself can take search. Shri Saroha, Dy. S.R died in 1993 as is stated by P.W. 6 Mehar Singh and therefore, he could not be examined. Shri Bai Kishan, A.S.I. who was a member of the raiding party was examined as RW. 4 but he was not stated anything about search and seizure in his presence. 32. Thus, from the evidence discussed above, it is evident that only partial option was given to the appellant, which in my opinion does not fulfil the legal requirements of Section 50 of the Act. 33. The result of the above discussion is that this appeal succeeds and is hereby allowed. The conviction of the appellant u/s. 8/18 of the Act is set aside. He is acquitted of the offence charged. He is in jail and be released forthwith if not required in any other case.Appeal allowed. *******