JUDGMENT 1. - Heard learned counsel for the appellant as well as learned public prosecutor. 2. This appeal is directed against the order of conviction of the appellant dated 9th March, 2000 passed by the Special Judge, NDPS Cases, Sriganganagar u/s 8/18 of the NDPS Act, 1985. 3. As per the prosecution case, Mr. Khiv Singh Bhati, SHO, Anoopgarh was informed by an informer on 30.5.98 that one person wearing blue paint and white shirt will pass through 61 GB Bridge carrying opium for sale. Mr. Khiv Singh Bhati, SHO, Anoopgarh after recording the information and informing the C.O. on telephone, went to the site along with Jagdish Singh, Jagdish Chandra, Prem Chand, Dharamveer and Nathuram and obtained a weighing implements and called two motbirs, Jaskaran Singh and Subhash. When the party reached near GB Bridge from right side of the bridge, one person carrying in his right hand a black check of coco-cola colour ragzire bag, he was stopped and when asked, he stated his name to be Kalu Ram. He was informed that there is definite information that he is carrying opium with him and he was given option to be searched either by Gazetted Officer or a Magistrate or the SHO. On giving option, the accused option to he searched by the SHO. In pursuance thereof. in the presence of motbirs, the accused was searched and from his bag 4.50 gms. opium was recovered. The accused held that he is not carrying license for possession of opium. After the recovery, two samples of 30 gms. opium were prepared. The sample as well as the remainder of opium was sealed and after preparing the note, the accused was arrested and on reaching the Police Station, the case was registered Ills. 8(18) of the NDPS Act. 4. During the course of trial, on denial of offence by the accused, the statements of PW-1 Jaskaran, PW-2 Subhash, the two motbirs, who participated in the search, were recorded. PW-3, Jagdish Singh, PW-4 Jagdish Chanel supported the version of PW-7 Khiv Singh Bhati, SHO. PW-5 Ram Gopal and PW-6 Banvari Lal are witnesses related to Malkhana. The accused in this statement u/s. 313 Cr.P.C. denied the allegation made against him. 5. PW-3, Jagdish Singh, PW-4 Jagdish Chanel supported the version of PW-7 Khiv Singh Bhati, SHO. PW-5 Ram Gopal and PW-6 Banvari Lal are witnesses related to Malkhana. The accused in this statement u/s. 313 Cr.P.C. denied the allegation made against him. 5. Both the motbirs turned hostile and did not support either the case of recovery or giving of notice in writing to the accused before the SHO searched him and recovered the opium.The contentions raised before the trial court were that there was violation of Section 50 of the NDPS Act in as the accused was not informed about his legal rights to be searched before a Magistrate or Gazetted Officer. There was violation of Section 42 of the NDPS Act because neither the information received from Mukhbir was recorded in writing nor it was immediately sent to the higher officer before taking action on such information. 6. The trial court found that on receipt of information which was recorded in Rojnamcha Ex.P-18 and information which was given to CO on phone after recording it separately on the basis of Ex.P-21, Ex.P-18 Rojnamcha Nakal and statement of PW-7, Khiv Singh Bhati, the contention of the appellant that information received from mukhbir was not recorded cannot be sustained. 7. It was also found by the trial court that since recovery was made in open and public place. sending of information to higher authorities u/s. 42 was not necessary as the case was governed by Section 43. According to learned trial judge, provision of Section 42 applies only in case the search is made in a closed premises. 8. Further relying on the statement of PW-3 Jagdish Singh, PW-4 Jagdish Chandra and Pw-6 Banvari Lal, PW-7 Shiv Singh Bhati along with a notice purported to have been served on the accused before he was searched (Ex. P20), it was held that provisions of Section 50 are substantially complied with. He found that the accused in his hand writing has given as consent to be searched by SHO and therefore, he is estopped from challenging the validity of such search on the ground of not giving him proper notice. In coming to this conclusion, the trial judge has considered the fact that the accused has not alleged that he was under pressure to be searched by SHO. In coming to this conclusion, the trial judge has considered the fact that the accused has not alleged that he was under pressure to be searched by SHO. He also found that samples and the recovered articles were properly sealed and in the same sealed condition the samples reached the FSL and this fact has been proved by the statements of the witnesses and as per the report of FSL, the seized articles were found to be opium. 9. Thus, finding that the accused was found in possession of opium, a i narcotics substance, he was convicted u/s. 8/18 of the NDPS and was sentenced to 10 years R.I. with a fine of Rs. 1 lac. 10. The arguments before me have been raised on the same lines as were raised before the trial court. 11. So far as the question of complying with Section .. is concerned, it is now well settled that it is not merely a matter of procedure, but it is a right of the accused and has to be strictly followed. The trial court appears to have been swayed by the fact that the accused has not raised the plea about the existence of any pressure for opting to be searched by SHO on the spot or to before the Gazetted Officer or a Magistrate. 12. In coming to this conclusion, the learned trial Judge was seriously erred in ignoring the principles set out by the Supreme Court, while interpreting Section 50 of the Act of 1985. 13. The purpose of giving option to the accused before he is searched whether he requires to be searched before a Gazetted Officer or a Magistrate or by the SHO is to inform the accused of his right to be searched before the Gazetted Officer or a Magistrate to ensure absolute. Fairness of procedure to the satisfaction of accused looking stringent provision of the Act and to minimise the prospect of making out plant-cases to feed statistics. Fairness of procedure to the satisfaction of accused looking stringent provision of the Act and to minimise the prospect of making out plant-cases to feed statistics. Without informing the accused of his right, giving him option to be searched either before the Gazetted Officer or by the Officer on the spot, it does not fulfil the mandatory requirement of the provisions of Section 50 of the NDPS Act and failure to inform the person concerned of his right to be searched by the Gazetted Officer or a Magistrate vitiates the recovery as well as the trial founded on it. 14. In State of Punjab v. Baldev Singh, (1999) 6 SCC 72 a Constitution Bench of the Supreme Court while considering the requirements of Section 50 of the Act, which are held to be mandatory, said: "That when an empowered officer or a duly authorised officer so acting on prior information is about to search a person, it is imperative for him to inform the person 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 may not necessarily be in writing. That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused." 15. Considering the aforesaid decision, when the matter was again examined by the Supreme Court in K. Mohanan v. State of Kerala, (2000) 10 SCC-222 , the Court said: "If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW 1 as has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it [himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the so appellant at all stages was that Section 50 of the Act was not complied with." 16. This is particularly so when the main defence adopted by the so appellant at all stages was that Section 50 of the Act was not complied with." 16. In view of the aforesaid, the appeal of the appellant was allowed by holding that the evidence of search spoken to by Pw-1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article. 17. The principle was reiterated in Krishna Kanwar v. State of Rajasthan, 2004 (1) WLC (SC) Cri 486 : (2004) 2 SCC-608 which has been relied on by the prosecution also. The Court said: "There is no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Section 50 in reality provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a reasonable, fail and just procedure. No specific words are necessary to be used to convey existence of the right. Whether the requirements of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalisation and/or a straitjacket formula." 18. In the present case the notice, which was served on the appellant at the time of conducing the search Ex.P-20 was by way of asking that whether he wants to be searched before any gazetted officer or a Magistrate or before the officers, CI, SHO, Police Station, Anoopgarh. He was asked to give his consent. Ex.P-20 does no more than requiring the appellant to give his option whether he wants to be searched before SHO or before Gazetted Officer. It does not indicate that whether the appellant was informed that he has a right to get himself searched before the Judicial Magistrate or a gazetted officer in terms of the provisions of law and he is not obliged to agree to be searched on the spot. 19. It does not indicate that whether the appellant was informed that he has a right to get himself searched before the Judicial Magistrate or a gazetted officer in terms of the provisions of law and he is not obliged to agree to be searched on the spot. 19. The notice and the so-called consent recorded on the notice does not bear attestation of any person present. In ordinary course, the notice served on the suspect to remain with him and only the copy of such acknowledgement or consent can be obtained and remain with the Investigating Agency. However, in the present case, it appears that original copy itself was with the prosecution and no copy was allowed to be retained by the accused on whom it was served. 20. Apart from the fact that the notice does not disclose that the appellant was apprised of his right to be searched before the gazetted officer or Judicial Magistrate in terms of Section 50, the oral testimony also does not indicate that any such information was conveyed to the appellant that he has right to be searched before the gazetted officer or a Magistrate before he was required to exercise his option to be searched by the Police Officer as present or before the officers as required u/s. 50. A persons who has conducted the search PW-7 does not specifically say that he informed the person concerned of his right. He does say that the search was conducted in the presence of motbirs after getting himself searched by the motbirs and searching motbirs. The said motbirs who have been produced as witnesses, so PW-1 Jaskarn Singh and PW-2 Subhash do not support the prosecution. PW-1 Jaskaran Singh after stating that he does not know the accused and that he was not with the SHO, Anoopgarh on 10th May, 1998 and no notice was given to him for becoming motbir of him with Subhash was declared hostile. While he admitted his signatures on Ex.P-2 denied the same to have been executed in his presence or the search having been made or recovery having been made in his presence. He denied that any proceeding has taken place in his presence. Thus, he does not support the prosecution case in any manner. 21. PW-2 Subhash was also declared hostile. While he admitted his signatures on Ex.P-2 denied the same to have been executed in his presence or the search having been made or recovery having been made in his presence. He denied that any proceeding has taken place in his presence. Thus, he does not support the prosecution case in any manner. 21. PW-2 Subhash was also declared hostile. He also in examination-in-chief does not say that the accused was informed about his right to be searched before the gazetted officer or the Magistrate; but only states that he was asked to say that if he wants to g6: himself searched by to any gazetted officer or a Magistrate and the notice was also given to him. E P-22 does not say about existence of such right. In fact in the cross-examination Pw-2 has even denied that any notice was given to the accused for being examined before the Magistrate or gazetted officer. He also denied that the search and recovery has been conducted in his presence. 22. The independent witnesses, therefore, do not support even the fact that the search was conducted in their presence after serving a notice for exercising option. 23. Thus, in the totality of circumstances, the facts of the case are nearer at home with the facts that were before the Supreme Court in K. Mohanan's case (supra), which were found insufficient to draw inference that the accused was informed about his right to be searched before the gazetted officer or the Magistrate before asking him to give his option either to be searched before the gazetted officer or a Magistrate or to be searched on the spot. There is no independent evidence to show that the appellant was in possession of the contraband article apart from the witnesses forming part of the investigating team as was circumstances in K. Mohanan's case (supra). 24. In view of the aforesaid, it is not necessary to consider other contentions. 25. Accordingly, the appeal is allowed and conviction of the appellant u/s. 8118 of 'the NDPS Act is aside and he be released forthwith, if not required in any other case.Appeal Allowed - Conviction Set Aside. *******