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2005 DIGILAW 654 (CAL)

Sarif v. STATE OF WEST BENGAL

2005-10-04

ARUN KUMAR BHATTACHARYA, D.P.SENGUPTA

body2005
Judgment :- A.K. BHATTACHARYA, J. (1.) The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Judge, Special Court, under the N.D.P.S. Act, Howrah in T.R. No. 32/2002 on 23.12.2003. (2.) Shortly put. and shorn of details, the Prosecution case is that, acting on a specific information which reduced in writing and being instructed by the superior officers, on 01.07.2002 at about 16.30 hrs. a batch of officers and staff of N.C.B., E.Z.U., Calcutta intercepted one person by name Md. Sarif at Sitalatala bus-stoppage on Sharkiral Road, Howrah and on informing that they had specific information about his carrying heroin, the officers expressed their intention to search him, that he has a right to be searched before a Magistrate or Gazetted Officer and that if he so desired, he may be searched before the departmental Gazetted Officer, to which he expressed his willinaness in writing to be searched before a Gazetted Officer of the department. On being contacted over phone, the Assistant Director of N.C.B. (PW7), EZU, Kolkata arrived there at about 18.15 hrs. Two independent witnesses from the spectators were called. The intercepted person on being asked to search the officers and staff of NCB if he so desired, declined to do so. After search of the said person in presence of two independent witnesses and the Gazetted Officer, one polythene packet of light brown coloured powder substance, believed to be heroin, kept in a red coloured jewellery bag of velvet cloth bearing marking "Haji Jewellers, Gold and Silver Ornament, 488, G.T. Road(S), Shibpur, Howrah - 711 102", inside the shirt of the person could be recovered. After testing of a small quantity of the recovered substance with the help of UNO test kit, it responded positive to the test of heroin. On reasonable belief that an offence has been committed in respect of the recovered light brown coloured powder substance believed to be heroin, the same along with the jewellery bag was seized under a section list and after weighment the contraband article was found to be 305 gms. in gross. A sample of 5 gms. each in duplicate was drawn and kept in two separate envelopes and the balance quantity in a separate polythene bag contained in the said jewellery bag was kept in another envelope. in gross. A sample of 5 gms. each in duplicate was drawn and kept in two separate envelopes and the balance quantity in a separate polythene bag contained in the said jewellery bag was kept in another envelope. The seizure list was signed by the seizing officer, Gazetted Officer, two independent witnesses and Md Sarif, to whom a copy of seizure list was made over aqainst receipt. In pursuance of the notice under section 67 of the NDPS Act, 1985, Md Sarif attended the office of NCB at 4/2 Karaya Road, Kolkata on that date at about 21.35 hrs. and tendered a voluntary statement admitting his guilt stating that he received the seized drug from his brother Waheed of Banipur, P.S. Sankraii, Howrah who used to purchase stuff from Abbas of Barabanki and Nasim Bhai, and he was waiting at Sitalatala bus-stopage to deliver the same to one Mohan of Sudder Street, Kolkata. Md Sarif was arrested on that date at about 23.45 hrs. and after completion of investigation complaint was filed against him under sections 21 and 29 of the NDPS Act, 1985. Hence, the accused was charged under section 21, NDPS Act, 1985. (3.) The defence case, as suggested to P.Ws., and as contended by the accused during his examination under section 313 Cr PC, is that nothing was recovered from his possession nor any option was given to him. The story of search and seizure was manufactured in the office of NCB, where thumb impressions of the accused were taken on a number of papers. He has been falsely implicated in this case. (4.) Nine witnesses were examined on behalf of the Prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the learned Court below found the accused guilty under section 21 of the NDPS Act, convicted him thereunder and sentenced him to suffer R.I. for ten years and to pay fine, of Rs. 1,00,000/- i.d. to S.I. for one year. (5.) Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal. (6.) All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence. 1,00,000/- i.d. to S.I. for one year. (5.) Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal. (6.) All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence. (7.) To start with, the procedure for trial of a warrant case instituted otherwise than on police report, laid down in sections 244 to 249 contained in chapter XIX of the Code of Criminal Procedure, 1973 has not been followed. Mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice, as was observed in W. Slaney v. State of M.P., reported in AIR 1956 SC 116 at 121. More or less similar is the observation in the case of Iqbal Ismail v. State of Maharashtra. reported in 1974 SC 1880 where it was held that no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. So, though the said procedure followed by the learned Court below cannot be said to affect the merit of the case or to have caused any prejudice to the accused and it is a curable irregularity under section 465 Cr PC, it is desirable that when the Code prescribes a specific procedure to be followed in the trial, that procedure should not be bypassed. (8.) PW 1 Sadananda Mondal, Intelligence Officer, merely proved the complaint (Ext. 1) lodged by him. PW2 Samir Kumar Biswas, Intelligence Officer on receipt a written information from their source on 01.07.2002 handed over the same to his Superior Officer i.e. Zonal Director R.K. Ghosh and as per his direction he along with R. Ain (PW3), A.K. Singh (PW5) and others proceeded for holding raid and reached near the bus-stoppage of Sitalatala on Sankrail More. At about 4.25 p.m. on being identified by their source to a person who was trying to avail of a bus, they surrounded and apprehended him. They disclosed their respective identity and thereafter on their query the said person disclosed his name as Md Sarif. At about 4.25 p.m. on being identified by their source to a person who was trying to avail of a bus, they surrounded and apprehended him. They disclosed their respective identity and thereafter on their query the said person disclosed his name as Md Sarif. They informed him of his right of being searched in presence of a Magistrate or Gazetted Officer and whether he wanted to be searched in presence of a Gazetted Officer of NCB, to which he opted to be searched in presence of their Gazetted Officer. On their call, A Hore (PW 7), Assistant Director of NCB, arrived there at about 6.15 p.m. They collected two independent witnesses from the persons assembled and then after search of his perscn one red coloured bag with marking "Hem Jewellery and Silver Ornaments, 488, G.T. Road(S), Howrah" could be recovered. After opening the said bag, brown coloured substance in a polythene packet was found which after test with the help of kit was detected to be heroin. The same alongwith the said bag was seized under a seizure list (Ext. 2) which was signed by all. After weighment the substance was found 305 gms. Two samples of 5 gms. each were drawn and they kept the rest heroin in a separate packet (Mat Ext. IV) and all the packets were sealed and labelled. In pursuance of a notice (Ext. 5) issued by R. Paul (PW 4), the apprehended person appeared before their office at 9.45 p.m. and after query they arrested him at about 11.45 p.m. As per voluntary statement of the accused they went to the house of Md Waheed on 02.07.2002 and thereafter to the house of accused but nothing could be recovered therefrom. The above evidence is supported by PW 3 R.N. Ain, PW 4 R.G. Paul and PW 5 A.K. Singh, all of whom accompanied PW 2. PW 6 Kalpana Ghosh, constable simply deposed regarding arrest of the accused and her participation in the raid during investigation. The above evidence is supported by PW 3 R.N. Ain, PW 4 R.G. Paul and PW 5 A.K. Singh, all of whom accompanied PW 2. PW 6 Kalpana Ghosh, constable simply deposed regarding arrest of the accused and her participation in the raid during investigation. PW 7 Amitava Hore, the then Assistant Director of NCB stated that on receipt of information by their office that at Sitalatala bus-stoppage one person was carrying heroin, they informed the matter to their Superior Officer i.e. Zonal Officer in writing, and as per his order to hold raid, PWs 2, 3, 4 and other force started for the raid at about 4.30 p.m. After arrival at the P.O. they informed him over phone that one person was detained by them with narcotic goods. He arrived there and found one person detained. They collected two independent witnesses from the spectators. They disclosed their identity as also the identity of him that he is an Assistant Zonal Officer of NCB. He offered him whether he wanted to be searched in presence of a Magistrate or Gazetted Officer, to which the detained person opted to be searched in presence of Gazetted Officer like him. Thereafter search was conducted and one polythene packet from his shirts pocket was recovered. After weighment the packet was found 305 gms. which was seized under a seizure list prepared by PW 2, and signed by him as also by two independent witnesses Md. Akbar and Md. Nizam. Accused put his LTI thereon. Samples of 5 gms. each in duplicate were collected and three packets were sealed and labelled. A notice under section 67 of the Act was served. The entire matter of search and seizure was reported to the superior i.e. Zonal Director and he informed the incident to Director General of NCB, New Delhi. PW 8 A.K. Bandopadhyay, Assistant Chemical Examiner, Chemical Laboratory, Customs House, Kolkata on testing the sample as per standard method such as U.P.D.R. it was found in the form of brown coloured powder and responded to the test of heroin, percentage of heroin being 64.3. PW9 Hemabrata Bose, Intelligence Officer, deposed regarding service of summons upon the said two witnesses Md. Nizam and Md. Akbar through registered post with A/D which returned on different dates with the postal remark "Not Known". (9.) Mr. PW9 Hemabrata Bose, Intelligence Officer, deposed regarding service of summons upon the said two witnesses Md. Nizam and Md. Akbar through registered post with A/D which returned on different dates with the postal remark "Not Known". (9.) Mr. S.C. Chakraborty, learned counsel for the appellant, adversely criticized for non-examination of any of the witnesses to the seizure viz. Md. Akbar and Md. Nizam, Mr. J. Saha, learned counsel for the NCB, on the other hand, on referring to sub-section (5) of section 100 Cr PC contended that though search shall be made in presence of two or more independent witnesses, there is no obligation for the said witnesses to attend the Court as witnesses unless specially summoned by the Court. Mr. Saha referring to the evidence of PW 9 further contended that despite repeated attempts, summons upon the said two witnesses could not be served and every time it returned with the postal remark "Not Known". (10.) While section 42 of the Act deals with the power of entry, search, seizure and arrest in any building, conveyance or enclosed place, section 43 relates to such power of seizure and arrest in any public place. Under section 51 of the Act the provisions of Cr PC shall apply as regards arrest, search, seizure etc. in so far as they are not inconsistent with the provisions of the Act. So, the provisions of sections 100 and 165 Cr PC which are not inconsistent with the provisions of the Act are applicable for effecting search, seizure or arrest under the N.D.P.S. Act, as was held in the case of State of Punjab v. Balbir Singh, reported in 1994 Cr LJ 3702(SC). The provisions of the said sections 100 and 165 Cr PC which are mandatory, require calling of two or more independent and respectable inhabitants of the locality before conducting the search, while under sub-section (5) of the said section, the search shall be made in presence of those witnesses and seizure list prepared. The object of the provisions is to ensure an honest and genuine search and to prevent trickery by "planting" the things to be "found" at searches, and its provision should be strictly complied with, non-observance whereof renders the recovery highly suspicious. The object of the provisions is to ensure an honest and genuine search and to prevent trickery by "planting" the things to be "found" at searches, and its provision should be strictly complied with, non-observance whereof renders the recovery highly suspicious. Honest efforts should be made to secure the presence of respectable persons of the locality, but if such witness is available, the search will not be vitiated for that reason only. Here, the said two witnesses called were neither respectable nor of the locality, otherwise summons would not have come back with the postal remark "Not Known". Nevertheless, since section 100 Cr PC applies only to search of places and not of persons excepting person as mentioned in sub-section (3) thereof and as the recovery of the contraband article is said to have taken place from person of the accused, non-examination of those two witnesses does not affect the Prosecution case. (11.) Mr. Chakraborty next contended that though PW2 claims to have received a written information from their source and made over the same to their Superior Officer Mr. R.K. Ghosh, Zonal Director, no document in this regard has been produced and the provision of section 42 was not complied with. Mr. Saha, on the other hand, relying upon the case of State of Orissa v. S. Mahanti, reported in 2000 Cr LJ 3469(SC) contended that the provisions of sections 41 and 42 were duly complied with and mere non-production of the written information before the Court would not vitiate the trial. (12.) Section 43 of the N.D.P.S. Act, 1985 empowers such officer as mentioned in section 42 to seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed. Under section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons for belief. But under the proviso to section 42(1) if such Officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. Sub-section (2) of section 42 enjoins upon an Officer taking down the information, recording grounds for his belief under the proviso to forthwith forward a copy to his immediate superior. In other words, section 42(2) also makes it obligatory to record grounds for his belief to that extent those provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial, as was observed in paragraphs 23 and 26 of Balbir Singhs case (supra). Here, though it has been averred in the complaint that specific information was reduced in writing, the evidence is contradictory since, while PW 1 deposed that he received a written information from their source and made over the same to his superior R.K. Ghosh, Zonal Director, PW 4 stated that he received an information that one person was moving in a suspicious manner carrying some narcotic goods which was communicated by him to his superior, and it is the evidence of PW 5 that he received an information which was duly recorded by recording officer of their office in a proforma and thereafter the same was sent to their Zonal Director. In other words, so far the evidence of PWs 2 and 4 are concerned no information was reduced in writing. PW 3 alone stated about recording of information by another officer which is an uncorroborated testimony. Moreover, the alleged recorded information has not been produced before the Court which will give rise to an adverse inference that had it been recorded at all it would have been produced. Accordingly, the mandatory provision of section 42(1) having not been complied with, it affects the Prosecution case and vitiates the trial. In this connection, the cases of Md. Mainuddin v. State of West Bengal, reported in (2005) 1 C Cr LR (Cal) 442 and Badal Khalek @ Raju v. N.C.B., EZU, reported in 2003(1) CHN 84 may be referred to. Accordingly, the mandatory provision of section 42(1) having not been complied with, it affects the Prosecution case and vitiates the trial. In this connection, the cases of Md. Mainuddin v. State of West Bengal, reported in (2005) 1 C Cr LR (Cal) 442 and Badal Khalek @ Raju v. N.C.B., EZU, reported in 2003(1) CHN 84 may be referred to. The empowered officer though is expected to record reasons of belief as required under section 165, failure to do so cannot vitiate the trial particularly when sections 41 or 42 do not mandate to record reasons while making a search, and section 165 in the context has to be read along with sections 42(2) and 42(1) whereunder he is not required to record his reasons, as was observed in paragraph 23 of Balbir Singh case. The context in which the above decision so referred to by Mr. Saha, was passed being quite different, the said decision has no manner of application here. (13.) Mr. Chakraborty next contended that not a single independent witness has been examined and there was non-compliance with the mandatory provisions of section 50 of the Act which has vitiated the trial and conviction. Mr. Saha, on the other hand, on referring to the case of State of Punjab v. Balwant Rai, reported in 2005, Cr LJ 1739 (SC) argued that as option was offered to the accused who opted to be searched before the departmental Gazetted Officer in writing (Ext. 4), there was no violation of the provisions of section 50. Mr. Saha further contended that as the appellant did not take this ground in the Memorandum of Appeal, the Court may not consider the said ground. (14.) It is the specific case of the defence that nothing was recovered from his possession and he has been falsely implicated in this case. One of the grounds taken in the Memorandum of Appeal is that the Prosecution failed to prove and establish beyond all doubt regarding possession of heroin weighing 305 gms. Possession of contraband is article is the sine qua non for application of the provision with which the accused has been charged. "Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. Possession of contraband is article is the sine qua non for application of the provision with which the accused has been charged. "Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent person is avoided and to minimize the allegation of planting or fabricating by the Prosecution, section 50 is enacted", as was expressed in para 19 of Balbir Singh case (supra). So on the face of the said defence and ground which is wide enough, the above contention of Mr. Saha regarding no necessity on the part of this Court to consider the said ground is not tenable. (15.) Section 50 of the N.D.P.S. Act embodies the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the authorized officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2), if such request is made by the suspected person, the officer who is to conduct the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such Gazetted Officer or the Magistrate sees that there is no reasonable ground for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. Under sub-section (4), no female shall be searched by any one excepting a female. In Balbir Singh case (supra) it was held that on prior information, the empowered officer or authorized officer while acting under section 41(2) or 42 or 43 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of the officer to inform the person to be searched, and failure to inform the person to be searched and failure to take him to the Gazetted Officer or the Magistrate would amount to non-compliance of section 50 which is mandatory and thus it would affect the Prosecution case and vitiate the trial. In State of Punjab v. Baldeb Singh, reported in 1999 Cr LJ 3672 (SC) though the Constitutional Bench refrained from expressing any opinion as to whether the provisions of section 50 are mandatory or directory, it was expressed that it is imperative for an empowered or duly authorized officer acting on prior information to inform, the concerned person 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. Such information may not necessarily be in writing, but the failure to inform the concerned person about the existence of his said right would cause prejudice to an accused, and failure to conduct the search before Gazetted Officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused. (16.) In the case on hand, it is the evidence of PW 1 that they informed the accused of his right of being searched in presence of Magistrate or any Gazetted Officer and whether he wanted to be searched in presence of Gazetted Officer of NCB, to which he opted to be searched in presence of their Gazetted Officer. The evidence of PW 3 is otherwise, as he stated that a written option was given to the accused as to whether he wanted to be searched before the departmental Gazetted Officer or other Gazetted Officer, and since he opted to be searched in writing to the effect that he wanted to be searched in presence of their departmental officer, they called Mr. A Hore (PW 7). It may be mentioned in this connection that the accused is an illiterate person and the said option in writing was written by some officer of the department. A Hore (PW 7). It may be mentioned in this connection that the accused is an illiterate person and the said option in writing was written by some officer of the department. However, it is the evidence of PWs 4 and 5 that they offered the accused whether he wanted to be searched in presence of Gazetted Officer or Magistrate to which he opted to be searched in presence of Gazetted Officer of the department which does not appear to be in conformity with the above evidence of PWs 2 and 3 i.e. though there was no offer on the part of PWs 4 and 5 to the accused to be searched in presence of the departmental Gazetted Officer, the accused out of his own opted to be searched in presence of the departmental Gazetted Officer. Again, it is the evidence of PW 7 that after his arrival at the P.O. he himself offered the accused whether he wanted to be searched in presence of Magistrate or Gazetted Officer, to which the detained person opted to be searched in presence of Gazetted Officer like him. It is obligatory on the part of the empowered officer or authorized officer under section 42 or 43 to inform the person to be searched that if he so requires, he shall be taken before a Gazetted officer or a Magistrate as provided in section 50(1), and there is no obligation on the part of the Gazetted Officer to offer the option for search in presence of a Gazetted Officer or a Magistrate, as has been done here by PW 7. Therefore, the above evidence of the witnesses are in consistent with each other on the one hand and on the other, the said offer cannot be held to be in conformity with the provisions of section 50. (17.) Furthermore, a perusal of sub-section (1) of section 50 would reveal that if a person has to be searched and if he so requires, he shall have to be taken to the nearest Gazetted Officer or a Magistrate. In that case, under sub-section (2) search has to be deferred and the person may be detained until he is brought before the Gazetted Officer or the Magistrate. Under sub-section (3) the Gazetted Officer or the Magistrate shall discharge the person if he sees no reasonable ground for search, otherwise shall direct the search to be made. In that case, under sub-section (2) search has to be deferred and the person may be detained until he is brought before the Gazetted Officer or the Magistrate. Under sub-section (3) the Gazetted Officer or the Magistrate shall discharge the person if he sees no reasonable ground for search, otherwise shall direct the search to be made. The word "Gazetted" finds place in sub-section (2) of section 41 of the Act under which only a Gazzetted Officer of the Departments of Central Excise, Narcotics etc. empowered by the Central Government or State Government can either himself make an arrest or conduct a search or authorize an officer above the rank of peon, sepoy or constable to do so. Section 56 of the Act in mandatory terms requires the officers mentioned in section 42 to assist each other in carrying out the provisions of the Act, while section 59 provides for penalty of the negligent or reluctant officer unless he has a lawful excuse for failure to perform the duty entrusted on him. "The fundamental rule of interpretation is that the Court will have to find out the expressed intention from the words. But if, however, two constructions are possible, then the Court must adopt that which will ensure smooth and harmonious working and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-settled provisions of existing law nugatory", as was observed in Chandra Mohan case, reported in AIR 1966 SC 1987 . In the present case, it is the evidence of PW 7 that after reaching the P.O. the officers informed him over phone that one person was detained by them with narcotic goods. A question necessarily arises how PWs 2 to 5 could ascertain that the person detained was carrying narcotic goods without opening the jewellery bag containing the contraband article kept inside the pocket of the accused. As discussed earlier, not a single independent witness has been examined in this case to support the testimony of PWs 2 to 5. The above very evidence of PW 7 leads to suggest that prior to arrival of the Gazetted Officer (PW 7) the jewellery bag containing the contraband article was opened by those witnesses, otherwise they could not inform PW 7 as above. The above very evidence of PW 7 leads to suggest that prior to arrival of the Gazetted Officer (PW 7) the jewellery bag containing the contraband article was opened by those witnesses, otherwise they could not inform PW 7 as above. Nevertheless, if the "Gazetted Officer" of the concerned departments as mentioned in subsection (2) of section 41 who has the power to arrest and search would have been the Gazetted Officer as mentioned in section 50, the language of section 50 would not have been framed in the manner as it how exists nor there would have been any necessity of taking the person to the nearest Gazetted Officer or Magistrate as provided in subsection (1) nor the said Gazetted Officer [under section 41(2)] who himself can arrest, search and seize or has detained a person on prior information can be expected to shed biasness or to develop the same kind of neutrality or cold objectivity towards the issue under sub-section (3) of section 50. The rules of natural justice which is sometimes used as "fair play" or "fairness" aim at securing justice or to prevent miscarriage of justice. The right of being searched before a Magistrate or Gazetted Officer is a valuable right of a person accused of an offence under the Act in view of the severity of the sentence which will be impaired if the departmental Gazettted Officer accompanying the raiding party or involving himself in the investigation is held to take decision under sub-section (3) of section 50. A search before a disinterested Gazetted Officer or Magistrate would impart much more authenticity and creditworthiness and would strengthen the Prosecution story. If the said Gazetted Officer is of the concerned department who is vitally interested in the Prosecution, the said valuable right would become illusory and a farce. A search before a disinterested Gazetted Officer or Magistrate would impart much more authenticity and creditworthiness and would strengthen the Prosecution story. If the said Gazetted Officer is of the concerned department who is vitally interested in the Prosecution, the said valuable right would become illusory and a farce. After discussing on different aspects of the matter, it was held in the Full Bench decision of this Court in Jadunandan Roy v. State of West Bengal, reported in 2000 CWN 373 that a Gazetted Officer under the Act to search, seize and arrest and investigate the offences under the Act, is not entitled to take a decision under section 50(3) of the Act and any option given to the person concerned that he can be taken before such Gazetted Officer for a decision under sub-section (3) is against the spirit and letter of section 50 and does not conform to the requirement of fair, just and non-arbitrary procedure established by law. From the language of the section it becomes evident that the legislature has taken a special care to see that search of the accused should be taken before an independent person who may be a Magistrate or Gazetted Officer. Such an independent person shall ensure that the accused should get all necessary protection guaranteed by the law. Taking a Gazetted Officer with the raiding party makes such officer indirectly interested in the success of the raid and such an officer can never be said to be an independent person. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid. In this connection, the observation in the case of Ahmed v. State of Gujarat, reported in 2000 C Cr LR (SC) 449 at 456, as reproduced below, is worth mentioning: "In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed then for the sanctity of the seach itself, the person to be searched has been afforded the minimum right to be searched before another Gazetted Officer or the Magistrate and that right cannot be taken away merely because the officer going to search happens to be a Gazetted Officer, who has been empowered either by the Central Government or by the State Government by a general or special order". In the light of the above discussion, we are of the considered opinion that the Gazetted Officer contemplated in section 50 should be one other than that of the concerned department holding the raid for apprehending a person accused of an offence under the Act. Here, the relevant part of the evidence of PW 7 is reproduced: "I offered him (accused) whether he wanted to be searched in presence of Magistrate or Gazetted Officer.", "we weighed the same and found 305 gms.", "we also collected samples of 5 gms. each in duplicate", "we served a notice under section 67 of the Act" etc. which leads to demonstrate that though the search was conducted in presence of the departmental Gazetted Officer (PW 7), he played a vital role in the matter of search, seizure, issuing notice under section 67 etc., and as such he cannot be held to be an independent person. So, the provision of section 50 of the Act cannot be said to have been duly complied with, for which the conviction is vitiated. In this connection, the case of Harun Rashid v. State of West Bengal, reported in 2005(1) CHN 517 may be referred to. So, the provision of section 50 of the Act cannot be said to have been duly complied with, for which the conviction is vitiated. In this connection, the case of Harun Rashid v. State of West Bengal, reported in 2005(1) CHN 517 may be referred to. (18.) As regards notice under section 67 of the Act, said to have been served upon the accused who was taken to the office of N.C.B. where he made a voluntary statement (Ext. 11) admitting the guilt, recorded by PW 5, it is the fundamental basic principle of criminal jurisprudence that caution must be administered to a person from whom a confessional statement is recorded that the same would be used against him in a judicial proceeding. In NSR Krishna Prasads case, reported in 1992 Cr LJ 1888 it was held that unless the empowered authority under section 108 of the Customs Act administers the caution or the warning embodied under section 164(2) Cr PC before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose. As there was no argument on this point on behalf of either side before this Court we thought it not fit to express our opinion as to the scope of applicability of section 164 Cr PC to a proceeding under the NDPS Act. However, when the said confession is retracted, as a rule of practice and prudence it is not safe to act upon it without independent corroboration which is well-settled. The case of Pyare Lal, reported in AIR 1963 SC 1094 may be relied on. That apart, on account of non-observance of the mandatory provisions of section 50, as discussed above, the confessional statement alone of the accused is of no aid to the Prosecution. (19.) Accordingly, when the mandatory provisions of section 50 of the Act are found to have been violated thus rendering the alleged recovery of contraband article suspect, the Prosecution cannot be held to have proved the charge beyond all reasonable doubt and as such the accused is found not guilty. (20.) In the result, we allow this appeal and set aside the order of conviction and sentence passed on the appellant. We acquit him of the charge and direct the jail authorities to set him free at once if not he is required in connection with any other case. (20.) In the result, we allow this appeal and set aside the order of conviction and sentence passed on the appellant. We acquit him of the charge and direct the jail authorities to set him free at once if not he is required in connection with any other case. (21.) Alamats, if any, be destroyed after the period of appeal is over. Let a copy of this Judgment along with the LCR be sent down at once to the learned Court below. Appeal allowed.