JUDGMENT Hon’ble M. K. Mittal, J.—This appeal has been filed by appellants Raju Gurong and Jang Bahadur Vishwakarma against the judgement and order dated 28.7.2001 passed by the then Sessions Judge, Siddharthnagar in Special Criminal Case No. 31 of 1998 whereby the appellants have been found guilty and convicted under Sections 20(b)(2) and 23 of N.D.P.S. Act (hereinafter referred as an Act) and have been sentenced to undergo rigorous imprisonment up to 10 years and fine of Rs. 1,00,000/- has also been imposed on them with default stipulation. In case they fail to deposit the fine they will have to further undergo rigorous imprisonment for two and half years under each section and this default sentence shall be consecutive. Appeal has been filed on 27.1.2006. 2. Brief facts as disclosed in the complaint filed by the Union of India through Vinay Kumar, Inspector, Land Customs Station Barhni, District Siddharthnagar are that complainant along with other inspectors and independent witnesses was on routine checking duty at L.C.S., Barhani, District Siddharthnagar. On 18.7.1998 at about 12.30 p.m., two young Nepali youths arrived at the customs barrier from Nepal side. They appeared to be suspicious and the customs officer stopped them and introduced themselves to those persons and told them that they had suspicion that they were carrying contraband goods with them and they would be searched by way of precaution. The customs officers also told them if they so desired they could be taken before a Gazetted Officer or a Magistrate for their search. At this stage those two persons told the customs officers that there was no need of checking them by a Magistrate or the Gazetted Officers and that they could search them. On interrogation the two Nepali youths disclosed their names and address as Raju Gurang S/o Kancha Gurang, Jang Bahadur Vishwakarma s/o Late Bhairo Bahadur Vishwakarma R/o Phurkue Palung, Gaon Vikas Samiti, Ward No. 9 Vajra Vaharahi, Post Daman, District Makvanapur Narayani Anchal (Nepal). Search of accused persons was taken in presence of independent witnesses and it was found that cloth packets in form of belt were tied around the waist of the accused persons and on feeling those belt something hard was noticed and that belt was taken out and on opening the packets it was found that those packets contained some hard substance wrapped up in black tapes. Six packets were recovered from the pockets of the belt of the accused Raju Gurang and five packets from the accused Jang Bahadur Vishwakarma and on opening these packets pieces of black colour emitting strong smell were found and it was noticed that these were pieces of charas of foreign origin. Accused also admitted that material was charas. The packets as recovered were weighed and the six packets recovered from appellant Raju Gurang weighed two kilograms and the five packets of charas recovered from accused Jang Bahadur Vishwakarma also weighed two kilograms. The value of the charas was estimated of Rs. 1.20 lacs. Some quantity of charas was taken from all the eleven packets of the charas to from sample packets and five samples of recovered charas were duly prepared in packet and sealed in different envelopes. All the sealed packets were duly signed by the appellants, witnesses and the customs officers. The remaining Charas was kept into card board packets separately and sealed in a lion cloth bag. These packets were also signed by the officers of the customs department, accused persons as well as the witnesses. The tapes and the cloths were separately sealed in the envelope and these envelopes were also signed by these persons. Two tickets of Nepali Roadways No. 389283 and 33348 and Rs. 489 of Nepali Currency were also recovered from appellant Raju Gurang and Rs. 510 of Nepali Currency were recovered from Jang Bahadur Vishwakarma. They were also separately sealed. The Panchnama of these recovered and seized items were duly prepared and signed by all the accused persons and the witnesses. The accused persons knew very little Hindi and the services of witness Rampati Upadhyay were taken as interpreter. The accused voluntarily made their statement before the customs officers on 18.7.1998 and were taken to Superintendent Customs on 19.7.1998 where also they made their voluntarily statement. According to the prosecution case, accused admitted their arrest and recovery of charas, tickets and currency notes from them. They also told that they were required to go to Delhi by one Kesh Bahadur Gurang residents of Kathmandu, who was to accompany them and there they had to deliver the material and were to be paid Rs. 1,000 each. However, they could not disclose the name of the person to whom the material was to be delivered in Delhi. 3. 1,000 each. However, they could not disclose the name of the person to whom the material was to be delivered in Delhi. 3. One sample was sent for chemical examination with a covering letter and the chemical examiner examined the same and found it to be charas. On this basis, the complaint was filed. 4. Learned Sessions Judge framed the charges against the accused persons on 8.1.1999. They pleaded not guilty and claimed trial. In support of its case, prosecution examined Vinay Kumar, Custom Inspector, as P.W.-1, Mahantji, Inspector, Central Excise as P.W.-2 and Ramapati Upadhyay as P.W.-3. Prosecution witnesses stated the prosecution case on oath. 5. Accused were examined under Section 313, Cr.P.C. They denied the prosecution case and contended that no recovery was made from them. They also denied that any sample was taken as alleged. According to accused Raju Gurang, he was coming to India in search of some work but was intercepted by some officer and was challaned. Accused Jang Bahadur Vishwakarma stated that his thumb mark was forcibly taken on the papers. The accused, however, did not adduce any evidence in their defence. 6. Learned Sessions Judge after considering the evidence on record came to the conclusion that the prosecution had been able to establish its case beyond reasonable doubt and the compliance of Section 50 was also made in this case. He also held that the accused were transporting Charas and were arrested at the Indo-Nepal Border and therefore they also committed offence punishable under Section 23 of the Act. Consequently, he sentenced them as above. Feeling aggrieved, this appeal has been filed from jail. Accused are in custody since the date of their arrest. 7. Heard Sri V.K. Mishra, learned Amicus curiae for the appellants, Sri S. K. Singh learned Counsel appearing on behalf of Union of India and perused the trial Court record. Sri Mishra has also filed written arguments. 8. Contention of learned Counsel for the appellants is that accused had been wrongly implicated in this case and that the learned trial Court failed to properly appreciate the evidence on record. According to him, the prosecution had failed to comply with the provision of Section 50 of the Act, which is mandatory and its non-compliance vitiated the trial and the accused were entitled to acquittal. According to him, the prosecution had failed to comply with the provision of Section 50 of the Act, which is mandatory and its non-compliance vitiated the trial and the accused were entitled to acquittal. In this connection, learned Standing Counsel has contended that the prosecution complied with the provisions of Section 50 of the Act. 9. Section 50 of the Act provides that when any officer duly authorised under Section 42 is about to search any persons 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. 10. Learned Counsel for the appellants has contended that it is the right of the accused persons to be informed that they can be searched before a Gazetted Officer or a Magistrate and in this case the appellants were not informed about their right by the Custom Officer and this violated the mandatory provision of Section 50 of the Act. In this case, fard recovery shows that arresting officer had told the accused persons whether they wanted to be searched before a Magistrate or a Gazetted Officer and then both of them said that they could be searched by them. P.W.-1 Vinay Kumar has also stated on oath that accused were asked if they wanted to be searched before a Magistrate. P.W.-2 Mahantji has stated on oath that he was also present at the Customs Barrier when the arrest was made and the accused were asked if they wanted to be searched before any Gazetted Officer or Magistrate but they stated that they could be searched by them. Similar statement has been made by Ramapati Upadhyay, P.W.-3. The fard recovery as well as the statements of these witness show that accused were not told about their right to be searched before a Gazetted Officer or a Magistrate. 11. In the case of State of Punjab v. Balbir Singh, 1994 (3) SCC 299 , it has been held by Hon’ble Apex Court while considering the provisions of Section 50 of the Act that it is imperative and mandatory on the part of authorised officer to inform the right of person to be searched. 12. 11. In the case of State of Punjab v. Balbir Singh, 1994 (3) SCC 299 , it has been held by Hon’ble Apex Court while considering the provisions of Section 50 of the Act that it is imperative and mandatory on the part of authorised officer to inform the right of person to be searched. 12. In the case of Miranda v. Arizona, 1966 (384) US 436, a question arose whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police and it was observed that he must be informed in clear and unequivocal terms that he has the right to remain silent. It was further observed that the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in Court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system that he is not in the presence of person acting solely in his interest. 13. In the case of Balbir Singh (supra) the observation as made in Miranda’s case were quoted with approval and it was observed that when such is importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of Gazetted Officer or a Magistrate. Thus the provision of Section 50 are mandatory. 14. The case of Balbir Singh was followed by the Apex Court in the case of Saiyad Mohd. Thus the provision of Section 50 are mandatory. 14. The case of Balbir Singh was followed by the Apex Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, (1995) 3 SCC 610 , where this legal position was again reiterated and it was held that the requirement on the part of the officer conducting the search to inform the accused of his right to choose to be searched in the presence of a Gazetted Officer or a Magistrate is mandatory and the prosecution must prove that the accused was made aware of this right but he did not choose to be searched before a Gazetted Officer or a Magistrate. If no evidence to this effect is given Court must assume that the accused was not informed of his right and must find that the possession of the illicit articles was not established. 15. The Constitution Bench of the Hon’ble Apex Court considered this point in the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172 , and held that it is not enough that the accused be informed or intimated that he would be searched in presence of a Gazetted Officer or a Magistrate but he should be informed of his “right” to be searched in presence of a Gazetted Officer or a Magistrate and if there is any violation in this regard it will be violation of Section 50 of the Act. The case of Baldev Singh (supra) was also followed in the case of Beckodan Abdul Rahiman v. State of Kerala, 2002(2) JIC 157 (SC). 16. In the case of Baldev Singh’s, it has also been held that it is not necessary that in the search memo or in the contemporaneous document it should be specifically mentioned that the accused suspect was apprised of his right under Section 50(1) of the Act. It has been so held that it is enough that the officer, who conducts the search, gives oral evidence to the effect that the accused was informed of his right under Section 50(1) of the Act. In the instant case the arresting officer has not even stated on oath that he had informed the accused about their right to be searched before the Gazetted Officer or a Magistrate. The other witnesses have also not made any statement to that effect. In the instant case the arresting officer has not even stated on oath that he had informed the accused about their right to be searched before the Gazetted Officer or a Magistrate. The other witnesses have also not made any statement to that effect. Thus there is no compliance of Section 50 of the Act and the contention as made by the learned Amicus Curiae is correct and the finding as recorded by the learned trial Court to the contrary is not tenable. In view of this legal position no presumption can be raised against the accused even on the basis of their statements as recorded under Section 107 and 108 of the Customs Act. 17. In this case, the sampling has been done in a very peculiar manner. The accused persons were arrested and in all eleven packets were recovered from them. According to the recovery memo as well as the statements as have come on record, some charas was taken from all these packets and the same was mixed and five samples were prepared and one sample weighing 25 grams was sent for chemical examination. The report of the chemical examiner is paper exhibit Ka 6 and it shows that 20.1 grams charas was received by him and after testing it was found to contain T.H.C. (Tetra Hydro Cannabinol 5.6%). What is important is that one sample was prepared from the eleven packets recovered from two accused persons. The Ministry of Finance, Government of India issued standing order No. 1 of 1989 dated 13th June, 1989 for determining the manner in which the narcotic drugs and psychotropic substances, as specified in notification No. 4 of 1989 dated 29th May, 1989, published as S.O. 381(E), shall, as soon as may be, after their seizure be disposed of, having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space. This standing order was issued in exercise of the powers as conferred by sub-section (1) of Section 52A of the Act. Section II of this Standing Order provides for general procedure for sampling storage etc. 18. These rules provide that in the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. Section II of this Standing Order provides for general procedure for sampling storage etc. 18. These rules provide that in the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. But if the initial testing of seized packages conclusively indicates that the packages are identical in all respects they can be bunched into lot and one sample (in duplicate can be drawn from the lot. But these rules do not provide that if there are more than one accused, their packages be bunched into one lot. The common prudence requires that the guilt of every accused has to be proved individually for the acts done by him. Even more care is required while dealing with an offender under the Act. Thus where there are more than one accused, then separate homogeneous sample should be prepared for each accused. The arresting officer should have prepared at least two homogeneous samples by taking the material from six packets recovered form accused Raju Gurang and two samples from five packets recovered from the accused Jang Bahadur Vishwakarma and two separate samples should have been sent for chemical examination to fix the liability of the two accused persons but strangely enough the arresting officer mixed the materials taken from all the eleven packets and prepared five samples and one of them was sent to the Chemical Examiner and on this basis the liability cannot be fixed on any of the accused person. Sri S. K. Singh, the learned Counsel for the Union of India could not explain this position and rather conceded that separate samples should have been prepared for the two accused persons. 19. The accused have also been convicted under Section 23 of the Act for transporting the charas from outside India. But in view of the above facts, the prosecution has failed to establish that the accused persons were found in possession of charas and therefore no liability can be fixed on them under Section 23 of the Act as well. 20. Thus I come to the conclusion that the prosecution had failed to establish its case against the accused persons and the learned trial Court has erred in convicting them and they are entitled to acquittal and appeal is liable to be allowed. 20. Thus I come to the conclusion that the prosecution had failed to establish its case against the accused persons and the learned trial Court has erred in convicting them and they are entitled to acquittal and appeal is liable to be allowed. 21. Appeal is hereby allowed and the order dated 28.7.2001 convicting the accused Raju Gurang and Jang Bahadur Vishwakarma under Sections 20(b)(2) and 23 of Act is hereby set-aside and the accused are acquitted of the charges they stood trial for. The accused shall be released forthwith unless they are wanted in any other case crime or matter. 22. The fee of Sri V. K. Mishra, learned Amicus Curiae, is assessed at Rs. 5,000/-. ————