JUDGMENT 1. - The appeal was posted for orders on the application for suspension of sentence. 2. Learned counsel for the appellant argued that the appellant has been convicted in this case for being found in possession of non commercial quantity of opium weighing 900 gms. only. He urged that the appeal itself can be decided on a short submission and thus instead of pressing the application for suspension of sentences, he prayed that the appeal itself be heard and decided at this stage. 3. Learned Public Prosecutor does not object to the suggestion. Accordingly, the application for suspension of sentence was rejected as being not pressed. The arguments on the appeal itself were heard. 4. The instant appeal has been preferred by the appellant challenging the judgment dated 19.8.2013 passed by the learned Special Judge, N.D.P.S. Cases, Rajgarh whereby the learned Special Judge convicted the appellant under Section 8/18 of the N.D.P.S. Act and sentenced him to 5 years R.I. with a fine of Rs. 5000/-, in default of payment of fine to undergo one year's simple imprisonment. 5. Briefly stated the facts of the case are that the S.H.O. Taranagar was on patrolling duty along with other constables of the Police Station on 3.4.2008. When they reached Bus Stand, Dhirwas Bada, the source informer gave him an information at 5.05 P.M. that Mahendra Singh S/o Shyokaran Jat who is indulged in dealing in illicit trade of opium would be passing towards village Birmi between 6 to 6.30 P.M. on foot carrying opium with him. 6. The information was considered reliable and thus it was taken down in writing and copy thereof was forwarded to the S.P. Churu with constable Mahendra Singh. Two independent Motbirs Sardul Singh S/o Amar Chand and Sandeep S/o Devilal Jat were summoned to participate in the verification proceedings. The police party along with Motbirs started for the Birmi Road as per the information given by the informer. At about 6 O'clock a person wearing Kamij and Payjama was seen coming on the road going towards Birmi. He became apprehensive on seeing the police party. He was stopped and upon being enquired about his identity, he revealed his name to be Mahendra Singh S/o Shyokaran Jat R/o Dayavath P.S. Sidhmukh. The S.H.O. made him aware of the source information and thereafter gave him a notice under Section 50 of the N.D.P.S. Act for searching him. He became apprehensive on seeing the police party. He was stopped and upon being enquired about his identity, he revealed his name to be Mahendra Singh S/o Shyokaran Jat R/o Dayavath P.S. Sidhmukh. The S.H.O. made him aware of the source information and thereafter gave him a notice under Section 50 of the N.D.P.S. Act for searching him. The accused allegedly gave consent to be searched by the S.H.O. Mahendra Dutt Sharma and the other police officers. The S.H.O. thereafter gave his own search to the Motbirs and then proceeded to conduct the personal search of the accused. On the personal search so being taken, under the shirt worn by the accused a long cloth bag was found tied to his waist. It was untied from his body. Inside the cloth bag a white colour plastic bag tied with white thread was found. On opening the bag, a raw sem solid substance was seen therein, On tasting and smelling the article, it gave opium like flavour. The accused could not provide any permit or license for keeping the opium in his possession. The recovered substance along with bag was weighed. On weighment it found to be 900 gms. including the weight of the packing material. Two samples of 50 gms. each were taken out from the substance and sealed in separate plastic bags and marked as A and A-1. The remaining opium was sealed in the same bag and marked `B'. The accused was arrested for the offence under Section 8/18 of the N.D.P.S. Act. The seizure memo and arrest memo were prepared. On the basis of these documents F.I.R. No. 63/2008 was registered at P.S. Taranagar and investigation commenced. 7. The seized sample was forwarded to the Forensic Science Laboratory for examination. A report Ex.P-17 was received from the F.S.L. with the opinion that the sample gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2.41% morphine. Thus, it was concluded that the sample was of opium. 8. A charge sheet was filed against the appellant for the offence under Section 8/18 of the N.D.P.S. Act. The learned trial Judge framed charge against the appellant for the said offence the appellant pleaded not guilty and claimed trial. Eight witnesses were examined in support of the prosecution case. Thus, it was concluded that the sample was of opium. 8. A charge sheet was filed against the appellant for the offence under Section 8/18 of the N.D.P.S. Act. The learned trial Judge framed charge against the appellant for the said offence the appellant pleaded not guilty and claimed trial. Eight witnesses were examined in support of the prosecution case. The accused denied the prosecution allegations in his statement recorded under Section 313 Cr.P.C. but did not lead any evidence in defence. The learned trial Age at the conclusion of the trial, by the judgment impugned dated 19.8.2013 proceeded to convict and sentence the appellant for the offence under Section 18 of the N.D.P.S. Act as stated above. Hence, this appeal. 9. Mr. Sunil Beniwal, learned counsel for the appellant has limited his challenge to the appellant's conviction or a solitary ground. He submitted that the recovery of the contraband in this case was effected by the S.H.O. from the personal search of the appellant. Pointing out to the notice under Section 50 of the Act (Ex.P-12) and the statement of the Recovery Officer PW-7 Mahendra Dutt, learned counsel submitted that the accused was not informed about the existence of a right to be searched before the Gazetted Officer or a Magistrate and a total non compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act was committed by the Seizure Officer before conducting the personal search of the appellant and thus the recovery is vitiated. He thus urged that the appellant's conviction in this case is liable to be quashed on this ground alone. He placed reliance on the Constitution Bench judgment of the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat reported in AIR 2011 SC 77 . 10. Per contra the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant and urged that no prejudice was caused to the appellant in this case. He submitted that the option to be searched before a Gazetted Officer or a Magistrate was given to the appellant vide notice Ex. P-12, and therefore, a substantial compliance of the provision of Section 50 of the Act was made before searching the appellant He, therefore, urged that the appeal should be dismissed. 11. Heard and considered the arguments advanced at the bar. P-12, and therefore, a substantial compliance of the provision of Section 50 of the Act was made before searching the appellant He, therefore, urged that the appeal should be dismissed. 11. Heard and considered the arguments advanced at the bar. For appreciating the arguments advanced by the learned counsel for the parties, the relevant portion of the document and the portion of evidence led at the trial which are germane to the issue are quoted herein below. The notice which was given to the appellant by the Seizure Officer before searching was exhibited as Ex.P-12 at the trial. The language of the notice is reproduced hereunder:- " vkidks tfj;s uksfVl lwfpr fd;k tkrk gS fd eu S.H.O. egsUnz nRr 'kekZ SI PS rkjkuxj dks tfj;s eq[kchj bryk feyh gS fd vki vQhe cspus dk /kU/kk djrs gks o vHkh vkids ikl vQhe gksus dh lwpuk gSA vr% vkidh ryk'kh yh tkuh gS vki viuh ryk'kh fdlh eftLVs~V vFkok jktif=r vf/kdkjh ds le{k fnyokuk pkgrs gks viuh bPNk vuqlkj voxr djkosaA " 12. The Seizure Officer Mahendra Dutt was examined as PW-7. As regards the option given to the appellant before searching him the S.H.O. deposed as below:- " ftl ij eu ,l0,p0vks0 :c: ekSrfcjku ds oDr 6%5 ih0,e0 ij eq[kfcj dh bryk ds vkids ikl vQhe gksus dh lwpuk gS vkidh ryk'kh yh tkuh gS vki viuh ryk'kh fdlh eftLVs~V vFkok jktif=r vf/kdkjh ds le{k djokuk pkgrs gksa rks viuh bPNk vuqlkj crk;sA " 13. From a bare perusal of the notice Ex.P-12 and the deposition of the S.H.O., it is evident that the information which was given before search does not give any intimation to the accused about the existence of his right to be taken before a Magistrate or a Gazetted Officer of his choice before conducting his personal search. It is not in dispute that the contraband opium weighing 900 gms. was recovered during personal search of the appellant. In this view of the matter it was imperative for the S.H.O. to have apprised the accused regarding the existence of a right to be searched before a Gazetted Officer or a Magistrate. It is not in dispute that the contraband opium weighing 900 gms. was recovered during personal search of the appellant. In this view of the matter it was imperative for the S.H.O. to have apprised the accused regarding the existence of a right to be searched before a Gazetted Officer or a Magistrate. The Hon'ble Apex Court has put the issue beyond scope of any argument while deciding Constitution Bench reference in the case of Vijaysinh Chandubho Jadeja's case wherein the Apex Court held that the provisions of Section 50 of the N.D.P.S. Act are mandatory and requires strict compliance. The Apex Court has held in para-22 of the judgment as below:- "22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the N.D.P.S. Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the N.D.P.S. Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search." 14. In view of the aforesaid discussion and keeping in view the fact that the contraband opium was recovered from the personal search of the appellant and as undisputedly the accused was not apprised by the empowered officer of his right to be searched before a Gazetted Officer or a Magistrate, the recovery of the article becomes suspicious and the appellant's conviction based on such recovery effected from his personal search is vitiated. 15. Accordingly, the appeal deserves to be accepted and is hereby allowed. The appellant's conviction as recorded by the learned Special Judge, N.D.P.S. Cases by the judgment dated 19.8.2013 is hereby set aside. 15. Accordingly, the appeal deserves to be accepted and is hereby allowed. The appellant's conviction as recorded by the learned Special Judge, N.D.P.S. Cases by the judgment dated 19.8.2013 is hereby set aside. The appellant is acquitted of the charge. He is in custody. He shall be released forthwith from custody, if not wanted in any other case.Appeal allowed. *******