JUDGMENT 1. -Appellants were accused on the file of learned Special Judge, Narcotic Drugs And Psychotropic Substances Cases, Pratapgarh bearing sessions case No. 23/2000. They were convicted and sentenced vide judgment dated September 29, 2001 under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short Narcotic Drugs And Psychotropic Substances Act, 1985) each to suffer rigorous imprisonment for twelve years and to pay a fine of Rs. 1,50,000/- in default, to further suffer rigorous imprisonment of three years.It is the prosecution case that on receiving a secret information on May 5, 2000, S.H.O. Police Station Pratapgarh alongwith police officials proceeded to the spot. Around 9.50 a.m. a motorcycle was seen coming from towards Dhamliya on which two persons were sitting. Biharl Lal was driving the motorcycle whereas Devi Singh was sitting on the rear seat. Devi Singh was holding a plastic bag in his hand and a plastic bag was found tied to the abdomen of Bihari Lal. On being searched, brown sugar weighing 1 kg was found from the plastic bag and the same contraband weighing 1 kg was found tied to the abdomen of Bihari Lal. Necessary memos were drawn. Accused persons were arrested and on completion of investigation, charge-sheet was filed. The prosecution in support of its case examined as many as 17 witnesses. In their statement under section 313, Cr. P.C. appellants claimed innocence. No witness in defence was however examined. On hearing the final submissions, learned trial Judge convicted and sentenced the appellants as indicated herein above. 2. Main contention advanced on behalf of the appellants is that provisions contained in section 50 of the Narcotic Drugs And Psychotropic Substances Act were not followed, therefore, very foundation of the prosecution case is illegal and appellants could not be convicted and sentenced. 3. Per contra, learned Public Prosecutor supported the impugned Judgment and contended that appellants were given option under section 50 of the Narcotic Drugs And Psychotropic Substances Act and no interference is called for. 4. 1 have pondered over the rival contentions and scanned the material on record as well as the statutory provisions. The provisions contained in section 50 of the Narcotic Drugs And Psychotropic Substances Act are as under: "Section 50. 4. 1 have pondered over the rival contentions and scanned the material on record as well as the statutory provisions. The provisions contained in section 50 of the Narcotic Drugs And Psychotropic Substances Act are as under: "Section 50. Condition under which search of person 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). (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. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer, or Magistrate. proceed to search the person as provided under section 100 of the Code of Criminal Procedure. 1973 2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 5. A look at the afore quoted section indicates that it has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegations of planting of fabrication by prosecuting authorities. It mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of sections 41 and 42 shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. It mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of sections 41 and 42 shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest 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. Requirement of section 50 may be summarised thus: (I) It is mandatory for the officer conducting search and seizure to inform the suspect his right to be searched in presence of the Magistrate or Gazetted Officer. (ii) It is mandatory for the officer conducting search and seizure to follow the mandate of sub-section (3) and to inform the suspect that Gazetted Officer or the Magistrate, if sees no reasonable ground for search, shall discharge the person. 6. Sub-section (5) and (6) have been added by Amendment Act 9 of 2001 which came into force with effect from October 2, 2001. Sub-section (5) provides that in an emergent situation the search and seizure may be effected by the authorised officer without taking suspect to the nearest Gazetted Officer or Magistrate when there is possibility that suspect is likely to part with the possession of Narcotic Drug or Psychotropic Substance or controlled substance or any article or document. However, adequate statutory safeguards have been provided under section (6). 7. Adverting to the facts of the case on hand, I find that written notices (Exhibit P-2 and P-3) were given to the appellants under section 50 of the Narcotic Drugs And Psychotropic Substances Act requiring the appellants to be searched either before the Magistrate or Gazetted Officer. The appellants were also asked, if they require, they may be searched by Amar Singh, S.H.O. It appears that both the appellants agreed to be searched by the S.H.O. and put their signatures. The written consent endorsed by the appellants on the notice would imply that they wanted to be searched by P.W. 4 Amar Singh. S.H.O. who effected the search. It is evident from the perusal of the notice Exhibit P-2 and P-3 that the appellant were not informed that the Magistrate or Gazetted Officer, if sees no reasonable ground for search, shall discharge the appellant. S.H.O. who effected the search. It is evident from the perusal of the notice Exhibit P-2 and P-3 that the appellant were not informed that the Magistrate or Gazetted Officer, if sees no reasonable ground for search, shall discharge the appellant. Prior to incorporation of sub-section (5) in section 50, the authorised officer himself could not search the suspect but with effect from October 2. 2001 the authorised officer in an emergent situation may effect the search and seizure subject to the checks provided in sub-section (6). These amended provisions are not applicable to the search and seizure effected on May 5, 2000 by Amar Singh, S.H.O. in the instant case. By effecting search and seizure himself Amax Singh, S.H.O. flouted the mandate of section 50. From the written notices Exhibit P-2 and P-3, it is evident that S.H.O. had no authority to conduct the search and seizure. 8. Their Lordships of the Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 : 1994 (31) ACC 351 (SC) . indicate that section 50 of the Narcotic Drugs And Psychotropic Substances Act confers a valuable right on the person to be searched in the presence of Gazetted Officer or Magistrate if he so requires. since such a search would impart much more authentic and creditworthiness to the proceedings while equally providing an important safeguard to the accused and that, therefore, the safeguard conferred under section 50 is to be taken as an important requirement and as a legislative imperative and non-compliance would vitiate the trial. 9. Section 50 applies to the personal search. Anything carried by the suspect in his hands, shoulder or head would also be on his person. A purse or packet if is on his person would not become luggage in his hands. A sling bag hanging on the body of the suspect is of on his person would not become luggage if it is carried in the hand. Something on the person of the suspect cannot be taken search of unless provisions of section 50 are observed. If a bag is carried by the suspect then it is on the person of the suspect and not otherwise. Something on the person of the suspect cannot be taken search of unless provisions of section 50 are observed. If a bag is carried by the suspect then it is on the person of the suspect and not otherwise. Since the appellant Devi Singh was carrying plastic bag in his right hand and another plastic bag was tied on the abdomen of Bihari Lal, it was essential for the S.H.O. to scrupulously follow the legislative safeguards contained in section 50. Conviction of the appellants under section 8/21 of the Narcotic Drugs And Psychotropic Substances Act thus cannot be sustained. 10. Three Judge Bench of the Hon'ble Supreme Court in Namdi Francis Nwazor v. Union of India and another, 1998 SCC (Cri) 1516 . indicated in para 3. thus "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 not 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 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 a 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 handbag or the 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." (Emphasis supplied) 11. In Kalema Tumba v. State of Maharashtra and another, (1999) 8 SCC 257 . two Judges of Hon'ble Supreme Court had occasion to consider the case of a Zairian national, who arrived at the Sahar Airport. In Kalema Tumba v. State of Maharashtra and another, (1999) 8 SCC 257 . two Judges of Hon'ble Supreme Court had occasion to consider the case of a Zairian national, who arrived at the Sahar Airport. Bombay by an Ethiopian Airlines flight on November 22, 1990. Intelligence Officer in Narcotic Control Bureau had received information that one Zairian national, Kalema Tumba was to arrive by that flight and was likely to carry a sizeable quantity of heroin. That information was reduced to writing and a watch was.kept at the airport by him and other officers. After the flight had arrived, Kalema Tumba had reported at the customs checking counter, he was asked to identify his baggage. Kalema Tumba identified his black-coloured rexine bag with brown stripes. It was found locked. The baggage tag fixed on it tallied with the claim tag affixed on his air ticket. Kalema Tumba then opened the bag after taking out a key from his pocket. On examination packets containing brownish powder were found from it. The test revealed that the said powder was heroin. In these circumstances, it was held that provisions contained in section 50 were not required to be observed. 12. Placing reliance on the ratio indicated in Namdi Francis Nwazor's case (supra). I hold that it was necessary for Amar Singh, S.H.O. to scrupulously follow the legislative safeguards contained in section 50 and since the S.H.O. himself' conducted the search of the appellants and flouted the mandate of section 50, their conviction under section 8/21 of the Narcotic Drugs And Psychotropic Substances Act cannot be sustained. 13. For these reasons, I allow the appeals and set aside the judgment dated September 29, 2001 of the learned Special Judge. Narcotic Drugs And Psychotropic Substances Cases, Pratapgarh and acquit the appellants Bihari Lal and Devi Singh of the charge under section 8/21 of the Narcotic Drugs And Psychotropic Substances Act. The appellants who are in jail shall be set at liberty forthwith, it not required to be detained in any other case.Appeal Allowed. *******