JUDGMENT 1. - Accused, appellant Chandra Kailash Hanuman has preferred this criminal appeal under Section 374, Cr.P.C. against the judgment of conviction and order of sentence dated 3rd June, 1997 passed by the learned Additional Sessions Judge, Gangapur City, whereby the learned trial Judge has found the accused appellant guilty of having committed offence under Sections 8/20 of the Narcotic Drugs and Psychotrophic Substances Act (hereinafter to be referred as "the Act") and accordingly, convicted him for the said offence and sentenced him to undergo rigorous - imprisonment for 10 years with a fine of Rs. one lac, in default thereof, to undergo imprisonment of one year. 2. Brief facts, relevant for the purpose of disposal of this appeal are summarised as follow: On 3.8.96, PW 8 Abdul Rasheed, Constable submitted a written report, Ex. P11 alleging therein that he along with Amardas, Constable were on petrolling duty and had gone to Mahaveerji by Inter-city Express and were returning to Gangapur by Dehradun Express in a general coach. According to him, when the train was about to stop at the platform of Gangapur Railway Station, he and constable Amardas moved towards the gate of general coach, they found that a man sitting in the gallary of the coach, immediately on seeing them in police dress, stood up and tried to get down from the rain and tried to move towards platform. He then raised an alarm and stopped the suspect. On being enquired in the presence of Narendra Singh, Hawaldar and Ravinder Kumar, present at the platform, the suspect disclosed his identity. On further inquiry, the suspect disclosed that he was in possession of some quantity of Charas. Thereafter, Abdul Rasheed took the accused to Police Station G.R.P., Gangapur City. 3. PW 7 Babu Lal, SHO, Police Station GRP having felt satisfied about the accused being in illegal possession of narcotic drugs, gave notice, Ex. P12 to the accused as required by Section 50 of the Act and then conducted search of the person of accused and recovered Charas weighing about 50 grams in three small polythene packets kept concealed in the inner front pocket of his trouser. He took two samples of 5 grams each from each of the packets and scaled the samples and remaining Charas in separate packets. 4. After completion of entire formalities as to the investigation, the police submitted a charge sheet against the appellant. He took two samples of 5 grams each from each of the packets and scaled the samples and remaining Charas in separate packets. 4. After completion of entire formalities as to the investigation, the police submitted a charge sheet against the appellant. 5. The learned Trial Court, on the basis of evidence and material collected during investigation and placed before it framed charge against the appellant under Sections 8/20 of the Act. The appellant denied the charge and claimed trial. 6. In order to establish the charge, the prosecution examined as many as 11 witnesses and got exhibited some documents. After the prosecution evidence was over, the appellant was examined under Section 313, Cr.P.C. In reply to a question, the appellant admitted that Charas was recovered from his possession. In his explanation the appellant explained that he had purchased the Charas from some saints in order to get them arrested. He also explained that Charas was seized from him in the train. 7. At the conclusion of trial, the learned trial Judge found the accused appellant guilty for offence under Sections 8/20 of Act and accordingly convicted and sentenced him in the manner stated above. 8. In assailing the conviction, the first argument advanced by Mr. Kamlakar Sharma, learned Counsel for the appellant is that in fact the search of the person of appellant was conducted on the spot at the railway platform and that too by the persons who were not authorised under the Act to conduct the search. Referring the statements of PW 3 Amar Das and PW 4 Mehtab Singh, Mr. Sharma argued that search of the appellant was conducted by them and not by the officer empowered under Sections 41 and 42 of the Act and, therefore, the procedure adopted for search of the appellant was contrary to the provisions of the Act and the learned trial Judge has committed serious error in ignoring this important aspect of the matter. 9. I have considered the above argument. PW 3 Amardas in his cross-examination has specifically stated that having felt suspicion, they did not check the articles lying in the pocket of the appellant. He further stated that they assumed that he could be a pick-pocket (Jeb-katara). For the first time, he gauged the pocket of the accused at GRP Police Station. I have considered the above argument. PW 3 Amardas in his cross-examination has specifically stated that having felt suspicion, they did not check the articles lying in the pocket of the appellant. He further stated that they assumed that he could be a pick-pocket (Jeb-katara). For the first time, he gauged the pocket of the accused at GRP Police Station. The witness stated that before doing so he had informed the SHO that the appellant himself had already disclosed at the railway platform that he was in possession of Charas. Likewise, PW 4 Narendra Singh, in his cross-examination has categorically denied the fact of accused being searched by any person at the railway platform. Further, PW 7 Babu Lal SHO has deposed in his examination-in-chief that he informed the accused that if he wishes, he can be taken to any Gazetted Officer or the Magistrate for the purposes of search. He also informed the accused that he (SHO) himself is competent to take search and if he so wishes, he himself can conduct search. The witness deposed that accused consented for being searched by the SHO himself. Thereafter, he conducted search of the person of accused. PW 8 Abdul Rushed, Constable has fully supported the prosecution case by specifically stating that the accused was searched at the Police Station by the SHO. 10. Thus, from the evidence discussed above it stands established that search of the person of accused was conducted by PW 7 Babu Lal, SHO of GRP Police Station at the Police Station and the person who conducted the search was the officer empowered under Section 42 of the Act to conduct search. The argument of Mr. Sharma that search of the accused was conducted by a Constable at the railway platform, therefore, has no legs to stand and hence rejected. 11. It is next contended by the Counsel for the appellant that there was complete non-compliance of the mandatory provisions of Section 50 of the Act. Learned Counsel argued that the provisions of Section 50 of the Act makes it imperative and obligatory on the part of the officer empowered under Section 42 of the Act to ensure that the search of a suspect is conducted in the manner prescribed by Section 50 of the Act. Learned Counsel argued that the provisions of Section 50 of the Act makes it imperative and obligatory on the part of the officer empowered under Section 42 of the Act to ensure that the search of a suspect is conducted in the manner prescribed by Section 50 of the Act. Referring the oral and documentary evidence, learned Counsel argued that before proceeding to initiate search and seizure, the SHO did not inform the appellant of his legal right available to him under the Act and thus the S.H.O. has breached the mandatory provisions of Section 50 of the Act which has resulted into vitiating trial against the appellant. 12. I have given my thoughtful consideration to the above argument. Before proceeding further, it would be profitable to refer the provisions of Section 50 of the Act, which read as under: "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 required, 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. (ii) 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). (iii) The Gazetted Officer or the Magistrate before whom any person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (iv) No female shall be searched by anyone excepting a female. 13. A glance at the provisions of Section 50 of the Act makes it abundantly clear that the above provisions are mandatory in character and violation thereof is fatal to the prosecution. When any officer duly authorised under Section 42 of the Act is about to search a person he is hound to inform the suspect that he has a right to be searched before the Gazetted Officer or a Magistrate. If the suspect makes a choice then, it is for the authorised officer to take him either before the Gazetted Officer or before the Magistrate. If the suspect makes a choice then, it is for the authorised officer to take him either before the Gazetted Officer or before the Magistrate. Section 50 implicitly makes it imperative and obligatory and cast a duty on the Investigating Officer (empowered officer) to ensure that search of concerned person (suspect) is conducted in the manner prescribed by Section 50 of the Act. 14. It is well settled that to be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is 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 Narcotic Drugs And Psychotropic Substances Act. Therefore, there is no justification for the officer empowered under the Act who on prior information goes to search the person 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. In T. Hamza v. State of Kerala, III (1999) CCR 168 (SC)=VI (1999) SLT 390=(2000) SCC (Cr.) 216 , Their Lordships of the Supreme Court relying upon the authoritative pronouncement of the Supreme Court in State of Punjab v. Baldev Singh, III (1999) CCR 109 (SC)=VI (1999) SLT 109= (1999) 6 SCC 172 , held that Section 50(1) of the Narcotic Drugs And Psychotropic Substances Act were not complied with before effecting search and seizure, inasmuch as the accused was not informed of his legal right. 15. The judgment in Baldev Singh's case (supra) was also followed in Ahmed v. State of Gujarat, III (2000) CCR 142=VI (2000) SLT 357=2000 SCC (Cri.) 1407 , and it was held: "In view of the aforesaid conclusions of the Constitution Bench, the submission of Mr. 15. The judgment in Baldev Singh's case (supra) was also followed in Ahmed v. State of Gujarat, III (2000) CCR 142=VI (2000) SLT 357=2000 SCC (Cri.) 1407 , and it was held: "In view of the aforesaid conclusions of the Constitution Bench, the submission of Mr. Yashank Adhyaru, appearing for the respondent State that the requirement of compliance with 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 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. In view of the aforesaid position of law and in view of the evidence of PW 1, as indicated in the earlier part of this judgment, the accused himself having wanted to be searched before a Gazetted Officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of Section 50 renders the recovery of the illicit article suspect and vitiates the conviction and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of Charas, which was recovered from his person during a search conducted in violation of the provisions of the Section 50 of the Act. In the aforesaid circumstances, the conviction and sentence be set aside and the accused be set at liberty forthwith, unless required in any other case. Fine amount, if has been paid, may be refunded to the accused." 16. Reference may also be made to the decisions of the Apex Court in K. Mohanan v. State of Kerala, (2000) 10 SCC 222 and Vinod v. State of Maharashtra, (2002) 8 SCC 351 . Fine amount, if has been paid, may be refunded to the accused." 16. Reference may also be made to the decisions of the Apex Court in K. Mohanan v. State of Kerala, (2000) 10 SCC 222 and Vinod v. State of Maharashtra, (2002) 8 SCC 351 . In the first case, Their Lordships observed as under : "If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a Gazetted Officer a Magistrate, it cannot be treated as communicating to him that he had a right under law to be searched so. What PW 1 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 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 appellant at all stages was Section 50 of the Act was not complied with." 17. In these circumstances, the Apex Court held : "We, therefore, hold that there was non- compliance with Section 50 of the Act and, consequently, the evidence of search spoken to by PW 1 cannot be acted upon in the absence of any other independent evidence to show that appellant was in possession of the contraband article." 18. In the later case, the Apex Court considered the case of K. Mohanan and held as under: "The law enunciated by this Court in K. Mohanan is clear as to the manner in which Section 50 of the Act has to be complied with. Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a Gazetted Officer for the purpose of the search but inform him of his right in that behalf under the law. The recital in Exhibit 38 and Exhibit 39 does not indicate the same. In view of the matter, we set aside the finding recorded by the High Court that there was compliance with Section 50 of the Act. The view of the Trial Court that non- compliance with section of the Act does not prejudice the accused cannot be sustained for the requirement of the section is mandatory. In view of the matter, we set aside the finding recorded by the High Court that there was compliance with Section 50 of the Act. The view of the Trial Court that non- compliance with section of the Act does not prejudice the accused cannot be sustained for the requirement of the section is mandatory. If Exhibit 38 and Exhibit 39 cannot be used to establish search of the person of the accused, his possession of brown sugar is not proved. Hence we set aside the order of the Trial Court as affirmed by the High Court. The appeal is allowed accordingly." 19. In the case at hand, PW 7 Babu Lal the officer empowered under the Act gave notice to the appellant as required under Section 50 of the Narcotic Drugs And Psychotropic Substances Act at the time of intended search. The notice Ex. P12 shows that the appellant was informed that if he wishes, he can be taken to any Gazetted Officer or the Magistrate for the purposes of search or he (SHO) himself is competent to take search. The notice no where mentions that before initiating search and seizure proceedings, PW 7 Babu Lal SHO informed the suspect of the existence of his right to have his search conducted either before a Gazetted Officer or before a Magistrate. Even from the statement of PW7 Babu Lal, it does not transpire that he informed the appellant of the existence 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. As stated above, it is well settled that it is imperative for the empowered officer or duly authorised officer who is acting on prior information and is about to search a person, to inform the person concerned of his right under Sub-section (1) of Section 50 of the Narcotic Drugs And Psychotropic Substances Act of being taken to the nearest Gazetted Officer or the nearest Magistrate for effecting the search. 20. 20. From the evidence available on record it is evident that the appellant who was subjected to search was merely asked to have his search conducted either in the presence of a Gazetted Officer or a Magistrate, which in my considered view cannot be treated as communicating the appellant that he had a right under law to be searched either in the presence of Magistrate or any Gazetted Officer what the SHO 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 himself searched what would have been the answer given by the appellant cannot be gauged at this distance of time. In this view of the matter it must be held that the appellant was denied the right available to him under Sub-section (1) of Section 50 of the Narcotic Drugs And Psychotropic Substances Act. Thus, the failure on the part of the prosecution in complying with the provisions of Section 50 of the Narcotic Drugs And Psychotropic Substances Act renders the recovery of illicit article suspect. 21. Having held that failure on the part of prosecution in complying with the requirements of Section 50 of the Act has rendered the recovery of Charas suspect, the question which now emerges for consideration of this Court is, whether the appellant can still be convicted on the basis of his own explanation under Section 313, Cr.P.C. to the extent that he had purchased the Charas from some saints in order to get them arrested and the police had seized the Charas in train itself, even though the appellant is entitled for acquittal on ground of non-compliance of the mandatory requirements of Section 50 of the Act ? 22. Before proceeding further, it would be appropriate to quote the explanation of the accused under Section 313, Cr.P.C., which reads as under: 370246 23. Section 3 of the Indian Evidence Act, 1872 defines evidence in the following manner: "Evidence means and includes -- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are documentary evidence. 24. 24. It is thus clear that all statements permitted by the Court or required to be made before it by a witness in relation to matters of fact under inquiry, such statement shall be taken to be oral evidence. Here in the case the appellant was neither permitted by the Court nor required to be made his statement as a witness and, therefore, his explanation offerred under Section 313, Cr.P.C. cannot be said to be falling within the meaning of "Evidence". 25. Sub-clause 4 of Section 313, Cr.P.C. provides that the answer given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed offence. It is thus clear that such statement made by any accused under Section 313, Cr.P.C. may only be considered in the inquiry or trial. 26. In Moral Majhi v. State, AIR 1958 Cal. 616 , the Division Bench of Calcutta considered the above question and in para 6 of its judgment held that when, therefore, the accused makes a statement in answer to questions form the Court it does not fall within the definition of the word 'evidence' as defined in the Evidence. Reproducing Section 342(2) of the Code of Criminal Procedure (as it then existed), the Division Bench observed as under: "From this sub-section itself it is quite clear that the answers given by the accused may be taken into consideration in such inquiry or trial. Then the next sentence which speaks of his answer being put in evidence for or against him in any other inquiry into or trial for any other offence which the said answers may tend to show that he has committed, those at once to show that while the answers given by the accused are not to be treated as evidence in the trial during which they are made, they may be treated as evidence in any other trial. If that were not the meaning there is no sense in putting these two things in two different forms of expression. It is also clear that even in England under the Criminal Evidence Act of 1898 the accused has the option of examining himself as a witness for the defence. If that were not the meaning there is no sense in putting these two things in two different forms of expression. It is also clear that even in England under the Criminal Evidence Act of 1898 the accused has the option of examining himself as a witness for the defence. If he does examine himself what he says on oath has to be treated as evidence like the evidence of any other witnesses. But when he does not choose to examine himself as a witness for the defence but makes an unsworn statement has been treated even in England as evidence like the evidence of witnesses on oath. Now, if one comes to Section 342(A) of the Code of Criminal Procedure which was enacted after the judgment of the Supreme Court referred to, it becomes clear that even in this country now it is open to an accused person to examine himself for the defence and he may, if he likes, give evidence on oath, but if he dues not and if he chooses to make an unsworn statement in answer to the questions from the Court, the simple fact that the Statute Book contains two sections, namely, Sections 342 and 342(A), is sufficient to indicate that if the accused chooses to examine himself as a witness on oath for the defence then what he says will be technically treated as evidence but if he does not so choose to examine himself it will not be technically evidence within the meaning of the word 'evidence' in Section 3 of the Evidence Act." 27. In State v. Pappachan, AIR 1960 Kerala 153 , the Division Bench of Kerala High Court considered the same question and held as under: "These answers are not strictly 'evidence' as it is understood though they 'may be taken into consideration' and as held by the Supreme Court in Vijendrajit v. State of Bombay, AIR 1953 SC 247 , conviction of the accused cannot be based merely on his statement recorded under Section 342 which cannot be regarded as evidence". 28. In State of Maharashtra v. R.B. Chaudhary, AIR 1968 SC 110 , Their Lordships of the Apex Court held as under: "The first argument is correct. 28. In State of Maharashtra v. R.B. Chaudhary, AIR 1968 SC 110 , Their Lordships of the Apex Court held as under: "The first argument is correct. No doubt under the Code of Criminal Procedure the statement of an accused may be taken into consideration in an inquiry or trial but it is not strictly evidence in the case. An accused, when he makes his statement under Section 342, does not depose as a witness because no oath is administered to him, when he is examined under that section. The recent amendment of the Code, however, enables an accused to give evidence on held own behalf under Section 342-A and this is only when an accused offers in writing to give evidence on his own behalf that his statement can be read as evidence proper. 29. Recently, in Mohan Singh v. Prem Singh, IV (2002) CCR 123 (SC)=VI (2002) SLT 17=(2002) 10 SCC 236 , their Lordships of the Supreme Court while considering the nature, scope and effect of statement made by an accused under Section 313, Cr.P.C. held as under : "The statement of the accused under Section 313, Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to acceptor reject it. It is, however, not a substitute for the evidence of the prosecution. As held in Nishi Kant v. State of Bihar, (1969) 1 SCC 347 , by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313, Cr.P.C. cannot be made the sole basis of his conviction." 30. Therefore, the law is well settled that the statements made by the accused in answer to the questions put by the Court, under Section 313, Cr.P.C. may be taken into consideration in an inquiry or trial, but it cannot be said to be evidence within the meaning of Indian Evidence Act, inasmuch as while examining the accused under Section 313, Cr.P.C., no oath is administered to him like a witness. Such statement is not a substantive piece of evidence. Such statement is not a substantive piece of evidence. If the exculpatory part of the statement of accused under Section 313 is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313, Cr.P.C. cannot be made the sole basis of his conviction. 31. Considering the question as involved in the instant case, the Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh (supra), have observed as under : "Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the Court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the Court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. v. Collins, (1987) SCR 265 (Canada) , the Supreme Court of Canada speaking through Lamer, J. as His Lordship, Chief Justice of the Supreme Court of Canada then was, opined that the use of evidence collected in violation of the charter rights of an accused would render a trial unfair and the evidence inadmissible. In the words of the Supreme Court of Canada: 'The situation is very different with respect to cases where, after a violation of the charter, the accused is conscripted against himself through a confession or other evidence emanating from him. In the words of the Supreme Court of Canada: 'The situation is very different with respect to cases where, after a violation of the charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair for it did not exist prior to violation and it strikes at one of the fundamental tenets of a fair trial'." 32. It has already been held above that search of the person of accused has been conducted in violation of the safeguards provided in Section 50 of the Act. Therefore, the use of admission of the accused under Section 313, Cr.P.C. in answer to the questions put by the Trial Court would render the trial unfair, for it did not exist prior to the violation of the provisions of Section 50 of the Act and it strikes at one of the fundamental tenets of a fair trial. Even if the statement of the accused under Section 313, Cr.P.C. is taken into account, it cannot be said that he has confessed his guilt inasmuch as he has stated that he had purchased the smack from saints for getting them arrested and that the police personnel had taken out the same in the train itself. 33. In this view of the matter, must be concluded that the appellant cannot be convicted solely on the basis of his explanation offered by him in answer to the questions put by the Trial Court, in the course of appellants examination under Section 313, Cr.P.C. 34. For the reasons aforesaid, the appeal is allowed. The conviction of appellant Chandra Kailash Hanuman under Sections 8/20 of the Narcotic Drugs And Psychotropic Substances Act is set aside and he is acquitted of the charge. The appellant is in jail and he be released forthwith, if not required in any other case.Appeal allowed. *******