Judgment Prabhat Kumar Sinha, J. 1. Criminal Appeal nos. 270 and 363, both of 1999, aforesaid, were tagged to be heard together and Criminal Appeal no. 169 of 2000, separately. All the appeals have been heard together as the main point involved as argued by learned counsel for the aforesaid appellants, was common, that is, whether or not provisions of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) were complied with. This judgment will dispose of all these three appeals. 2. Raju Kurmi and Bhulan Chaudhary were convicted by the learned Second Additional District and Sessions Judge, East Champaran, at Motihari, under section 23 of the Act and appellant Raju Kurmi was sentenced to undergo rigorous imprisonment for ten years and a fine of rupees one lac whereas Bhulan Chaudhary was ordered to undergo rigorous imprisonment for fourteen years and a fine of rupees one lac and fifty thousand. In default to pay fine, appellant to undergo imprisonment for two years and six months and Bhulan Chaudhary, three years and six months. 3. Appellant Ramashray Sah, who had filed appeal from jail, was convicted under section 23 of the Act and was sentenced to undergo rigorous imprisonment for twelve years and a fine of rupees one lac and twenty five thousand and, in default to pay the fine, this appellant was ordered to further undergo rigorous imprisonment for two and half years. 4. In so far as appellants in Appeal nos. 270 and 363, both of the year 1999, are concerned, the prosecution case, as in the complaint filed by Union of India through Sri B.K. Srivastava, inspector of Customs at Raxaul, is that a raiding party was formed of customs officers at Raxaul on receipt of information about smuggling of Charas through "Sadbhawana Express" and on search three persons fled away from the compartment but two were caught first, and after some time, third one, Raju Kurmi, was also caught. Out of the two caught, Dinesh Kaper does not appear to have preferred appeal. As per the complaint, on search three kilograms, two kilograms and one kilogram of Charas were recovered respectively, from the three arrested persons. The samples of alleged charas were produced in the court and marked material Exhibits. The experts report (Exhibit-6) found the examined samples to be charas. 5. As per the complaint, on search three kilograms, two kilograms and one kilogram of Charas were recovered respectively, from the three arrested persons. The samples of alleged charas were produced in the court and marked material Exhibits. The experts report (Exhibit-6) found the examined samples to be charas. 5. In so far as case of Ramashray Sah is concerned, from the official complaint filed by Union of India through Sri Binod Kumar, Inspector of Customs at Raxaul it will appear that on receipt of secret information a raiding party under leadership of the complainant had gone to "Manokamna Devi Temple" where some persons by the Costom Officials and it was felt that on body of the two some solid objects were wrapped and they admitted carrying charas having tied the packets beneath anklets in their legs. They were brought to Custom Office and in search three kilogram of charas was recovered from other accused whereas two kilogram was recovered from this appellant. 6. Sri Lala Kailash Bihari Prasad, Advocate, having been appointed Amicus-curiae, has argued the case of appellant Ramashray Sah. 7. The learned counsel appearing on behalf of the appellants have not argued on the evidence about search and seizure but have contended that since section 50 of the Act was not complied with while making the search and seizure, the conviction and sentences awarded to the appellants stand vitiated. 8. I would also touch some parts of the evidence but before doing that this common point of law on which the learned counsel for the appellants have based their case, may be examined. Section 50 of the Act is reproduced "50. Conditions under which search of persons shall be conducted. (1) 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 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. (2) 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). (2) 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). (3) 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. (4) No female shall be searched by anyone excepting a female." 9. It is now well settled that before a person is searched, the officer concerned must inform him of his right to be searched before a Gazetted Officer or a Magistrate which, if not done, would vitiate the order of conviction as provisions of section 50 of the Act are mandatory in nature. 10. The Apex Court in the case of K. Mohanan V/s. State of Kerala; 2000 S.C.C. (Cri) 1228, noticed that the witness had said that before the search was conducted he had asked the appellant whether he required to be produced before a Gazetted Officer or a Magistrate for the purpose of search to which the appellant answered in negative. It was held by their Lordships that if such an accused was merely asked whether he required to be searched in presence of a Gazetted Officer or a Mag- istrate it could not be treated as indicating to him that he had a right under law to be so searched as that would amount to just seeking the opinion of the accused as to whether he wanted that or not. Their Lord- ships observed that if it was stated to him that he had a right under law to have himself so searched, then what would have been the answer given by the accused could not be gauged after expiry of so much time. The essence, therefore, is not that the person intended to be searched will only be told he may require the search to be made before a Gazetted Officer or a Magistrate, but he must be told that it is his legal right to require to be so searched. On that ground it was held that section 50 of the Act was not complied with. 11. On that ground it was held that section 50 of the Act was not complied with. 11. Learned counsel for the appellants have relied upon a decision of the Supreme Court in the case of State of Punjab V/s. Baldev Singh, 1999 6 SCC 172 , in which their Lordships had held that it was 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, and further held that failure to give such information would 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 courts were ordained by their Lordships that they must be satisfied about due compliance of requirement of section 50, and that prosecution also should get opportunity to establish such compliance. 12. In the case of appellant Ramashray Sah, Sri Prasad, learned counsel, has argued that though it has been brought on record that Superintendent of Customs, admittedly a Gazetted Officer, was also present at the time of search, still the mandatory requirements of section 50 of the Act were not complied with in view of a decision of the Apex Court in the case of Ahmad V/s. State of Gujarat, 2000 (4) P.L.J.R. (SC) 124. It was held by their Lordships in this case that under requirements of section 50 of the Act a person to be searched, if he requires to be taken to a Gazetted Officer or the nearest Magistrate for search, the same must be complied as this right cannot be taken away merely because the Officer going to search himself happens to be a Gazetted Officer. It was held that a person to be searched had a right to require to be searched before another Gazetted Officer or before a Magistrate. It was held that a person to be searched had a right to require to be searched before another Gazetted Officer or before a Magistrate. Discussing decisions in this regard including that of Baldev Singhs case (supra) their Lordships held as follows : "In view of the aforesaid conclusions of the Contitution Bench , the submission of Mr.M.N. Shroff, appearing for State respodent, that the requirement of compliance of section 50 will not arise, if a search is going to be made by an empowered officer, who happens to be a gazetted officer, is devoid of any substance inasmuch as this Court in no uncertain terms has held 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 person concerned of the right under section (1) of section 50 of being taken to the nearest gazetted officer or to nearest Magistrate for making the search." 13. These being the law enunciated by the Apex Court on this point it is now so be seen as to whether the provisions of section 50 have been complied with in the two cases which tried the present appellants. 14. P.W. 1 (in the case related to Cr. Appeals no. 270 and 363, both of 1999), Binod Kumar, an Inspector in the Customs Department, has narrated as to how the three accused were caught and searched and how recoveries were made. In his examination-in-chief he did not say that he had informed the legal right accruing to the appellants to be searched under section 50 of the Act. However, in course of cross-examination he said (paragraph 26) that he did not ask the accused as to whether they wanted to be searched before a Magistrate. P.W. 2, B.K. Srivastava, Customs Inspector, who is also complainant, has stated as to how the three accused had been apprehended including Raju Kurmi who was the third and the last person to be so apprehended on chase, as also about the seizures made. In cross-examination this witness said (paragraph 20) that he had asked the third person (appellant Raju Kurmi) that if he wanted he could be searched before a gazetted officer and when that third accused answered in affirmative, then Superintendent of Customs and Assistant Commissioner were called in the office. In cross-examination this witness said (paragraph 20) that he had asked the third person (appellant Raju Kurmi) that if he wanted he could be searched before a gazetted officer and when that third accused answered in affirmative, then Superintendent of Customs and Assistant Commissioner were called in the office. This also does not show the compliance of section 50 of the Act in view of decision of the Apex Court in the case of K. Mohanan (supra), in view of the fact that that particular appellant was not told that it was his legal right to so require to be searched before a gazetted officer, or a Magistrate. 15. None of the other witnesses, who are mostly constables, have said anything to show that section 50 of the Act was complied with. 16. Moreover, seizure list in this case has not been brought on the record as Exhibit. This is another lacuna in the prosecution case which will render the conviction and sentence to be untenable. 17. In view of aforesaid I also come to the conclusion that provisions of section 50 of the Act were not complied with in the case of appellants Bhulan Chaudhary and Raju Kurmi. 18. Now coming to Cr. Appeal no. 169 of 2000, P. W. 1 is Binod Kumar, Inspector of Customs, but he did not say that before making search he or any of the officials of the Customs Department who might have been present, had informed this appellant of his legal right as enunciated under section 50 of the Act though he said that in the office both of the accused were searched in presence of Assistant Commissioner and Superintendent of Customs, P.W. 2 is the Harish Chandra Rai, Superintendent of Customs, who also claimed that he had accompanied the raiding party and the search was made in his presence. This witness also has not said anything about compliance of section 50 of the Act. Same is the case with other witnesses including P.W. 7, Basant Kumar Srivastava, another Inspector of Customs. 19. Moreover, it will be seen that whereas P.W.1 has said that when something was felt tied with the legs of the appellant and on their admitting that it was charas, they had taken both the accused including the appellant to the customs office, where search and seizure were made. 19. Moreover, it will be seen that whereas P.W.1 has said that when something was felt tied with the legs of the appellant and on their admitting that it was charas, they had taken both the accused including the appellant to the customs office, where search and seizure were made. But other witnesses including the Superintendent of Customs have claimed that the search and seizures were made near "Manokamna Temple". Not only that, even the-Superintendent of Customs did not tell the appellants their legal rights under section 50 of the Act but he admitted that search was made by a constable Ashok at which time he was sitting in his car at some distance. 20. Ms. Nivedita Nirvikar, learned counsel for Union of India, also placed reliance upon a decision of a Division Bench of this court in the case of Ibrahim Ansari V/s. State; 2001 (2) P.LJ.R. 87 . But in that case the Superintendent of Narcotic Control Bureau, a gazetted officer, had said that he had disclosed his identity to the accused and had asked him that he being himself a gazetted officer the accused might be searched in his presence whereafter the accused volunteered to be searched by him. However, no such statement has been made in either of the cases under consideration that the gazetted officer, in whose presence search was said to have been made, had said so. Moreover, decisions of the Apex Court in the case of K. Mohanan (supra) and in the case of Ahmad (supra) were also not placed before their Lordships, and not considered. Besides that, the cases of present appellants differ on facts also so much so that in one of the cases the seizure list was not brought on the record and in the other, there is discrepancy in the evidence about the place of search and seizure. This being the position the case of Ibrahim Ansari will not help the Union of India. 21. In view of aforesaid, partycularly in view of non-compliance of the mandatory provisions of section 50 of the Act, the three Appeals, namely, Cr. Appeals no. 270 and 363, both of 1999, and Cr. Appeal no. 169 of 2000 are hereby allowed and the judgments of conviction as against the appellants are hereby set aside. 21. In view of aforesaid, partycularly in view of non-compliance of the mandatory provisions of section 50 of the Act, the three Appeals, namely, Cr. Appeals no. 270 and 363, both of 1999, and Cr. Appeal no. 169 of 2000 are hereby allowed and the judgments of conviction as against the appellants are hereby set aside. The appellants, Raju Kurmi, Bhulan Chaudhary and Ramashray Sah are acquitted of the charge and are directed to be released from custody forthwith, if not required to be detained in connection with any other case. 22. Sri Laia Kailash Bihari Prasad was appointed Amicus Curiae to argue the Appeal preferred by appellant Ramashray Sah. He will be paid remuneration by the Legal Aid Committee of the Court. Narayan Roy, J. 23 I agree.