JUDGMENT 1. - This is an appeal filed by the State of Rajasthan against the judgment dated 19.1.1991 passed by the learned Addl. Sessions Judge, Chittorgarh in Sessions Case No. 112/1988 The State of Raj. v. Mala Ram which relates to FIR No. 64/1988 of Central Narcotic Bureau, Chittorgarh. The learned lower court has acquitted the accused-respondent Mala Ram from the charge under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the N.D.P.S. Act of 1985'). The accused-respondent was charged in the lower court for the illicit possession of 4 kgs. 600 gms. of opium in a suitcase which was being carried in his lap while he was sitting in a public transport vehicle. 2. The grounds taken in the appeal against said acquittal order are as follows:- (1) that the learned lower court has not properly appreciated the evidence submitted on behalf of the prosecution, (2) that the statement of PW-1 Satya Narayan has not been relied upon, though he was a trustworthy witness, (3) that the statement of PW-5 Durga Lal and PW-7 Azizulla were sufficient to prove the charge against the accused respondent, (4) that the provisions which are not mandatory in the N.D.P.S. Act, 1985 have been given undue importance by the lower court and non-compliance of directory provisions of N.D.P.S. Act, 1985 should have been ignored by the lower court and the accused should have been convicted for the charge levelled against him. 3. In the light of above arguments, I have perused the impugned judgment of the learned lower court. I have also perused the record of the case. 4. PW-1 Satya Narayan, Inspector of Narcotic Bureau states that he had checked the night bus No RNP 2202 which was going from Chhitorgarh to Delhi at 10.00 p.m. on 29.7.1988 and a passenger of the bus accused-respondent was found in possession of a suitcase which was lying in his lap and he was having a key also of that suitcase in his pocket. He states that he had given an option to the accused-respondent that if he likes, then he may be searched in presence of Gazetted Officer or a Magistrate. He states that accused had told him to give his search in presence of the Investigation Officer himself. He states that he had given an option to the accused-respondent that if he likes, then he may be searched in presence of Gazetted Officer or a Magistrate. He states that accused had told him to give his search in presence of the Investigation Officer himself. He states that with the consent of the accused-respondent, he had searched the accused-respondent by himself in presence of the witnesses and then he found about 4 kgs. 600 gms. of opium in the suitcase for which no license was there with the accused-respondent. He states that when accused was arrested by him in presence of the bus conductor Dinesh Kumar and bus driver Mithu Lal, witnesses Azizulla, Durga Lal and Jwala Singh were also present at that time on the spot. In his cross-examination, he admits that suitcase was taken from the lap of the accused-respondent by witness Jwala Singh. But another fact cannot be ignored that Jwala Singh had asked in the bus that who is the owner of the suitcase. He states that despite the fact that suitcase was lying between legs or in the lap of the accused-respondent, he was disowning it, so they were forced to ask other passengers also about the ownership of the suitcase. He admits that in Fard Ex.P. 3 it has been mentioned that suitcase was lying in the lap of the accused-respondent and it was nowhere mentioned in it that the suitcase was lying between the legs of the accused-respondent. He categorically refuses that suitcase was lying on the upper rack of the bus which is meant for carrying luggages of the passengers in the bus as has been stated by the witnesses. 5. It is worth mention here that other witnesses have stated that the suitcase was lying on the upper luggage rack of the bus and not between the legs or in the lap of accused-respondent. 6. PW-2 Mithu Lal is bus driver, who states that when key was recovered from the possession of the accused-respondent, then he confessed that he was the owner of the suitcase. He has stated that the suitcase was opened with that key which was recovered from the accused-respondent and from the suitcase 4 kgs 600 gms. of opium was recovered in his presence as per procedure. He has stated that the suitcase was opened with that key which was recovered from the accused-respondent and from the suitcase 4 kgs 600 gms. of opium was recovered in his presence as per procedure. In his cross-examination, he admits that before taking search of the accused-respondent no member of the raid party had given search to any one else. He states that he cannot deny the fact if key of the suitcase was introduced in the pocket of the accused-respondent by the recovery officer himself. 7. PW-3 Dinesh Kumar is said to be the conductor of the bus. He states that the suitcase was lying in the luggage rack of the bus and he states that when no body had admitted to be the owner of the suitcase then on the basis of doubt, accused-respondent was searched and on his search, a key of the suitcase along with ticket of the bus was recovered from him. The illicit opium was also recovered from the suitcase. This witness has been declared hostile. He states that recovery officer had never given option to the accused-respondent that he may give his search in presence of a Gazetted Officer or a Magistrate. 8. PW-5 Durga Lal has supported the prosecution story as a member of raiding party. He states that Jwala Singh was searched by Inspector Satya Narayan and then accused-respondent was searched by Jwala Singh. He admits that neither the inspector Satya Narayan nor the witness Jwala Singh had given any search to the driver or the conductor of the bus who were present on the spot. He states very specifically that the accused-respondent nowhere was given any option of being searched in presence of a Gazetted Officer or a Magistrate before his personal search was made. 9. PW-6 K.S. Murti is Asstt. Chemical Examiner of Government Opium Factory, Neemach. Report Ex.P. 8 has been exhibited by him which states that there was 10.5% of morphine in the seized article. 10. PW-7 Azizulla is also a constable of Narcotic Department, Chittorgarh. In his examination-in-chief he supports the prosecution story as an eye-witness. He says that the accused was not searched in his presence and he also states that perhaps the Inspector Satya Narayan had picked up the suitcase which was lying between the legs of the accused-respondent and only thenafter he had loaded in the bus. 11. In his examination-in-chief he supports the prosecution story as an eye-witness. He says that the accused was not searched in his presence and he also states that perhaps the Inspector Satya Narayan had picked up the suitcase which was lying between the legs of the accused-respondent and only thenafter he had loaded in the bus. 11. In his statement under Section 313, Cr.P.C., the accused- respondent has totally denied the possession of the illicit opium from him and he has also examined DW-1 Shiv Prakash Kumawat and DW-2 Jwala Singh as his witnesses. DW-2 Jwala Singh does not support the prosecution story as mentioned in Ex.P.3. It is worth mention here that the prosecution had deleted the name of this witness from the list of the witnesses but this witness has been examined on behalf of the defence. 12. Following rulings of the Hon'ble Supreme Court are relevant to mention here:- (1) Ashok Kumar Sharma v. State of Rajasthan, 2013 Cr.L.R.(SC) 13 and (2) Suresh & ors. v. State of Madhya Pradesh, 2013 Cr.L.R.(SC) 41 . 13. In the case of Ashok Kumar Sharma(supra), the Hon'ble Supreme Court has held as under:- "that Section 50 of NDPS Act of 1985 gives mandatory provisions and it is obligatory on the part of the search officer to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate and this mandatory provision requires strict compliance." 14. In this case, trapping officer only informing the accused that he could be searched before any Magistrate or a Gazetted Officer if so wished but not apprised with his right, so because of non-compliance of the mandatory procedure entire proceedings were held vitiated and the accused-appellant was acquitted by Hon'ble Supreme Court. 15. Same view has been adopted by another Bench of Hon'ble Supreme Court in the case of Suresh (supra). In this case Hon'ble the Supreme Court has held as under:- "mere asking the accused as to whether they would offer their search to Police Officer or a Gazetted Officer would not satisfy the protection afforded under Section 50 of the NDPS Act, 1985." 16. In this case Hon'ble the Supreme Court has held as under:- "mere asking the accused as to whether they would offer their search to Police Officer or a Gazetted Officer would not satisfy the protection afforded under Section 50 of the NDPS Act, 1985." 16. Thus it is clear that before making personal search of the body of accused-respondent Mala Ram, the officer making search should have given option to the accused-respondent that he may be searched in presence of a Magistrate or a Gazetted Officer and this is not a directory provision. Compliance of this provision has been declared mandatory in the aforementioned two cases of the Supreme Court. So recovery of key of suitcase carrying opium becomes unbelievable against the accused. 17. The learned lower court has acquitted the accused-respondent because of non-compliance of mandatory provisions of Section 50 of the NDPS Act, 1985. The learned lower court has acquitted accused-respondent Mala Ram also because of no proof of recovery of contraband from the exclusive possession of accused. The lower court has also acquitted the accused-respondent Mala Ram because the prosecution story was totally doubtful regarding recovery. The prosecution story was also doubtful regarding the fact that samples taken from the suitcase were kept intact up to their chemical examination because this fact has also not been duly proved by the statement of the person who had kept them sealed intact till their chemical examination. 18. In above mentioned circumstances, the benefit of doubt has rightly been given by the learned lower court to the accused-respondent and so the appeal of the State against the impugned order does not deserve success which is hereby dismissed and the judgment of the learned lower court is affirmed. 19. A copy of this order along with the record of the lower court be sent immediately to the learned lower court.The appeal is disposed of accordingly.Appeal dismissed. *******