JUDGMENT 1. - Appellant seeks to set aside the judgment dated September 27, 2001 passed by learned Special Judge, N.D.P.S. Cases, Bhilwara whereby the appellant was convicted under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act, 1985) to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, in default, to further suffer simple imprisonment of six months. 2. Prosecution story as woven is this Anil Paliwal, A.S.P., Bhilwara while on patrolling duty on April 10, 1998 saw the appellant and apprehended him as he might have some objectionable article in his bag. He got the permission from him for his search and conducted the search of the person of appellant in presence of motbirs Prabulal and Ratanlal and 1.5 Kg Brown Sugar allegedly got recovered from the possession of the appellant. Necessary memos were drawn. Appellant was arrested and on completion of investigation, charge-sheet was filed. The prosecution examined as many as 7 witnesses in support of his case and got exhibited 13 documents. In explanation under Section 313 Cr.P.C., appellant claimed innocence. No witness in defence was however examined. The learned trial Judge on 15 Tearing final submissions convicted and sentenced the appellant as indicated herein above. 3. It is contended on behalf of the appellant that mandatory provisions of Section 50 have not been complied with by the police at the time of the alleged search which is the basic safeguard given to the accused, therefore, its conviction is illegal. 4. Per contra, learned Public Prosecutor supported the impugned judgment and urged that search and seizure was conducted by the person who himself was the Gazetted Officer and since the appellant was searched while the A.S.P. was on patrolling duty, it was not necessary to give option to the appellant. 5. I have pondered over the arguments advanced before me and having scanned the material on record, I find that memo Exhibit P-3 got drawn by Anil Paliwal. A.S.P. A look at the said memo demonstrates that A.S.P. directly asked the appellant to be searched, to which appellant readily agreed. It also appears that Anil Paliwal did not inform the appellant that he himself was the Gazetted Officer. At the time when the search was conducted, appellant was holding a bag which according to the Exhibit PW-3 containing brown sugar. It also appears that Anil Paliwal did not inform the appellant that he himself was the Gazetted Officer. At the time when the search was conducted, appellant was holding a bag which according to the Exhibit PW-3 containing brown sugar. Their Lordships of Hon'ble Supreme Court in Mohinder Kumar v. The State of Panaji, Goa, AIR 1995 SC 1157 propounded, thus : "Where the police officer accidentally reached the house of accused while on patrolling duty and effected search and seizure of charas from accused without recording the grounds of his belief at any stage of the investigation subsequent to this realising that the accused persons were in possession of charas and did not forward a copy of the grounds to his superior officer, as required by Section 42(2) of the Act and also did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, the mandatory provisions of Sections 42 and 50 of the as Act were not complied with and, therefore, the accused would be entitled to be acquitted." 6. In Saiyed Umar Saiyed v. State of Gujarat, (1995) 3 SCC 610 , their Lordships of the Hon'ble Supreme Court in para No. 7 indicated as under : "Having regard to the object for which the provisions of Section 50 have been introduced into the N.D.PS. Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (election) of the Indian Evidence Act, 1872....Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the N.D.P.S. Act was not established." 7. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the N.D.P.S. Act was not established." 7. The provisions contained in Section 50 of the N.D.P.S. Act are as under : "S. 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 persons 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." 8. 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. 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 Section 41 and 42 shall take such person without any unnecessary delay to the nearest as 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, for discharge the person. 9. 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). 10. 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 April 10, 1998 by Anil Paliwal, A.S.P. in the instant case. By effecting search and seizure himself Anil Paliwal, A.S.P. flouted the mandate of Section 50. 11. Their Lordships of the Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 indicate that Section 50 of the N.D.PS. By effecting search and seizure himself Anil Paliwal, A.S.P. flouted the mandate of Section 50. 11. Their Lordships of the Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 indicate that Section 50 of the N.D.PS. 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. 12. 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 beg handing 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. Three Judge Bench of Hon'ble Supreme Court in Nambi Francis Nwazor v. Union of India and Another, 1998 SCC (Cri.) 1516 propounded in para 3, as under : "....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." Since the appellant was carrying the contraband, it was essential for the A.S.P. to scrupulously follow the legislative safeguards contained in Section 50. Conviction of the appellant under Section 8/21 of the N.D.P.S. Act thus cannot be sustained. 13. As a result of the above discussion, 1 have no option but to allow the appeal and set aside the judgment of the learned Special Judge, N.D.P.S. Cases, Bhilwara and acquit the appellant of the charge under Section 8/21 of the N.D.P.S. Act. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Allowed-Conviction Set Aside. *******