ORAL JUDGMENT : 1. This Appeal is directed against the Judgment and Order dated 13th December, 2010, passed by the learned Additional Sessions Judge, Malegaon in Sessions Case (NDPS) No.11 of 2004, convicting the Appellant for the offence punishable under Section 20(b)(ii) of the NDPS Act. For the said offence, the Appellant has been sentenced to undergo R.I for 7 years and to pay a fine of Rs.15,000/, in default to suffer R.I. for 1 year and 9 months. The said Judgment and Order of conviction and sentence of the Appellant is challenged by way of this appeal. 2. According to the prosecution, on 20th August, 2004, PW.2 – API Ashok Bagul, was called by the Dy.S.P – Kumbhare, to his cabin. At that time, PW.2 – API Bagul was a member of the special squad of Dy.S.P. The Dy.S.P – Kumbhare passed on the information to PW.2 – Ashok Bagul, that the present Appellant was going to bring ganja to his house for selling the same. Accordingly PW.2 – API Bagul passed on the said information to his officers. Panchas, photographer and Tahsildar were called. All of them were informed about the purpose of the raid. The secret information so received was also communicated to the Superintendent of Police, on paper, by a special messenger. Accordingly, all entries to that effect were made in the station diary. 3. Thereafter, the police party along with the panchas, photographer and Tahsildar & Executive Magistrate, proceeded towards the house of the appellant. The raiding party saw the appellant coming by the Kusumba road with an aluminum utensil. PW.2 – API Bagul and the Tahsildar are stated to have stopped the appellant and ascertained his name. On search, 1 kg ganja was found in the bags, pursuant to which samples and photographs were taken and panchanama came to be prepared, vide Exhibit – 25. Thereafter, PW.1 ASI Subhash Aher, lodged a complaint as against the Appellant for the aforesaid offences. Thereafter, the samples which were collected during the raid, came to be sent to the Chemical Analyst on the very next day i.e. 21st August, 2004. After investigation, chargesheet came to be filed and the case came to be committed to the Court of Sessions, Malegaon, the case being Sessions triable. The appellant pleaded ‘not guilty’ and claimed to be tried. 4. The prosecution in support of its case examined 7 witnesses. After investigation, chargesheet came to be filed and the case came to be committed to the Court of Sessions, Malegaon, the case being Sessions triable. The appellant pleaded ‘not guilty’ and claimed to be tried. 4. The prosecution in support of its case examined 7 witnesses. PW.1 ASI Subhash Aher, the complainant, PW.2 – API Ashok Bagul ; PW.3 – Datatraya Handage – Police Naik; PW.4 API Abdul Gaffar Sardar Shaikh, recorded statement of witnesses and arrested the appellant ; PW.5 – Vijaykumar Bhangare, who at the relevant time was Tahsildar as well as the Executive Magistrate, Malegaon ; PW.6 Sanjay Gunjal, the police constable who carried the samples and deposited the same with the Chemical Analyser and PW.7 – Mohammad Yunus Mohammad Yusuf, the photographer. 5. Mr.Sherali S. Khan, learned counsel for the Appellant advanced several submissions with regard to the noncompliance of the provisions of Sections 41, 42(1) (2) and Section 50 of NDPS Act, non –examination of panchas, with regard to seizure and sealing of contraband. He submitted that PW.5 – Bhangare was not authorised to conduct the raid. He contended that this Appeal ought to succeed principally on the ground of noncompliance of Section 50 of the NDPS Act. 6. The question that arises for consideration in the said case, is whether Section 50 of the NDPS was complied with or not. It is therefore necessary to consider the evidence of the prosecution witnesses with regard to the same. At the relevant time, PW.1 – ASI Aher, was attached to the Ayesha Nagar Police Station, Malegaon and was a member of the Special Squad of which PW.2 – API Bagul and PW.3 Handage were members. PW.1 Aher has deposed that Dy.SP. Anil Kumbhare had received information on 20th August, 2004, about the appellant bringing ganja for sale. The said information was passed on by the Dy.SP to PW.2 – API Bagul. Accordingly, PW.2 – API Bagul called PW.1 and four constables and disclosed to them that the Appellant was going to bring ganja for sale and that a raid was to be conducted. PW.1 – Aher has deposed that when the appellant was stopped, he had an aluminium tin box with him. He has further stated that after API – Bagul ascertained that the appellant was Shaikh Ibrahim Shaikh Usman, API – Bagul asked the appellant if he wanted to take their search, which he refused. PW.1 – Aher has deposed that when the appellant was stopped, he had an aluminium tin box with him. He has further stated that after API – Bagul ascertained that the appellant was Shaikh Ibrahim Shaikh Usman, API – Bagul asked the appellant if he wanted to take their search, which he refused. Thereafter, in the presence of panchas, possession of the tin box was taken. In the said box, two plastic bags, containing ganja, weighing 1 kg came to be seized. The said witness has admitted in his crossexamination that API Bagul did not ask the appellant, whether his search is to be taken before a Gazetted Officer. 7. PW.2 – API Bagul, who was heading the special squad has stated in his evidence that Dy.SP – Kumbhare had called and disclosed to him, that the present appellant was going to bring ganja to his house for selling the same and that they had to conduct a raid. The said information was taken down by him on paper and sent to the Superintendent of Police. PW.2 – Bagul, has stated that he took steps to arrange the Tahsildar, panchas and photographer and a person to carry out the weight and measures. PW.2 – Bagul, has stated that they proceeded towards the house of the appellant and while they were waiting for the appellant, they saw one person carrying an aluminum utensil come there. According to PW.2 – API Bagul, he and PW.5 – Bhangare, stopped the appellant and asked him his name and after verifying the same, both of them introduced themselves and told him that they intended to take his search and whether he wanted to take their search. The said witness has deposed that, PW.5 – Bhangare Tahsildar took the search of the appellant before the panchas and the aluminum box wherein the bags containing ganja were found. He has stated that when the said bags were weighed, one kg of ganja was found. He stated that 3 samples of 100 gms each were taken from the said ganja and that one sample was given to the Appellant and other samples were preserved. The samples came to be seized and sealed and thereafter the signatures of the Tahsildar and panchas were taken and the panchanama was prepared, which is at Exhibit – 25. He stated that 3 samples of 100 gms each were taken from the said ganja and that one sample was given to the Appellant and other samples were preserved. The samples came to be seized and sealed and thereafter the signatures of the Tahsildar and panchas were taken and the panchanama was prepared, which is at Exhibit – 25. It is elicited in the cross examination of the said witness that at the time of the incident, he was serving as an API and that his statement was not recorded during the course of the investigation. It has come in the cross examination of the said witness, that he had orally asked the appellant whether he wanted himself to be searched before a Gazetted Officer or a Magistrate, however only refusal to take search is mentioned in the panchanama. He has admitted that PW.5 – Bhangare, Tahsildar had taken the search of the accused and that he too had taken the personal search of the appellant. A perusal of the Exhibit – 25, which is the panchanama, shows that there was no offer given to the appellant as contemplated under Section 50 of the NDPS Act. 8. PW.3 – Datatraya Handage, was one of the member of the special squad. He has stated that he was also present along with the other officers, when the raid was conducted. The said witness has not stated anything with regard to whether any option was given to the Appellant and as such his evidence is not of much use to the prosecution. 9. PW.4 – Abdul, is the Investigating Officer who took over the investigation from PSO Kale. He recorded the statement of the members of the special squad and the weight keeper and sent the samples of ganja to the Chemical Analyst. The said witness arrested the appellant and submitted the chargesheet. The C.A Report, is at Exhibit – 30. It is elicited in the cross examination of the said witness that he had not taken the negatives from the photographer. The said witness has neither produced the forwarding letter sent to the Chemical Analyst so as to show that the articles which were produced before the Court were the same articles which were sent to the Chemical Analyst. 10. PW.5 – Bhangare, was the Tahsildar and Executive Magistrate, Malegaon, who was present at the time of the raid. The said witness has neither produced the forwarding letter sent to the Chemical Analyst so as to show that the articles which were produced before the Court were the same articles which were sent to the Chemical Analyst. 10. PW.5 – Bhangare, was the Tahsildar and Executive Magistrate, Malegaon, who was present at the time of the raid. He has stated that a person carrying an aluminum tin box came by the road, pursuant to which they stopped the said person and told him that his search was to be taken. He has stated that the appellant agreed to give his search. He has deposed that in one box ganja was found, weighing 1 kg, pursuant to which samples were taken. 11. Sanjay Gunjal is the carrier who was examined by the prosecution, as PW.6. He has stated that the samples in the bag were sealed and were given to him and that he produced the same along with a letter to the C.A office, Nashik. No muddemal register has been produced along with the forwarding letter showing that the seal which was affixed was the same seal that was affixed on the samples. 12. PW.7 – Mohammad Yunus Mohammad Yusuf, is the photographer of the raid, who was declared hostile. In the present case, no negatives were produced by the prosecution and hence considering the same, the photographs cannot be looked into. 13. Learned Counsel for the Appellant contended that there was a clear breach of Section 50 of the NDPS Act, inasmuch as, the person of the appellant as well as the aluminum tin box was searched. He submitted that in view of the fact that the person of the appellant was searched, the appellant ought to have been informed of his right under Section 50 of the NDPS Act. He relied on two Judgments of the Apex Court, in the case of Union of India v/s Shah Alam, reported in (2009), 16 SCC 644 and State of Rajasthan v/s Parmanand, reported in Law (SC), 2014271. He submitted that, if only the aluminium box had been searched, Section 50 would not be attracted, however, as the person of the appellant was also searched, it was mandatory for the prosecution to comply with the said provision, which was not done. 14. He submitted that, if only the aluminium box had been searched, Section 50 would not be attracted, however, as the person of the appellant was also searched, it was mandatory for the prosecution to comply with the said provision, which was not done. 14. Ms.P.P.Shinde, learned APP was unable to justify the noncompliance of Section 50 of the NDPS Act, inasmuch as, not only the aluminum tin box but even the person of the appellant was searched. With regard to the evidence on Section 50 of the NDPS Act, the prosecution has failed to examine the panchas, who would have been independent witness of the search and recovery. Non-examination of panchas, in the facts of the present case, is a serious omission on the part of the prosecution. From a perusal of the evidence of the Investigating Officer, it appears that the Investigating Officer had not made any attempt to secure the presence of the panchas. It is not the prosecution case, that an attempt was made to secure the presence of panchas, but they could not be found nor was any report filed by the prosecution to that effect. 15. The learned counsel for the appellant also contended that the prosecution had also not established the link evidence that the articles that were lodged continued to be in a sealed condition, from the time they were seized till the time they were sent to the Chemical Analyst. He submitted that even the forwarding letter was not produced by the prosecution nor any station diary was produced in support of the prosecution case. 16. Heard learned counsel for the parties at length. Perused the evidence and documents with their assistance. At the outset, it must be noted, that the law relating to noncompliance of the mandatory provision of Section 50 of the NDPS Act is very clear and wellsettled. In the case of Union of India v/s Shah Alam (supra), heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken, but nothing was recovered from their person. It was contended that as the personal search did not lead to recovery of any contraband, there was no need to comply with the provisions of Section 50 of the NDPS Act. Thereafter, their personal search was taken, but nothing was recovered from their person. It was contended that as the personal search did not lead to recovery of any contraband, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip and Anr v/s State of Madhya Pradesh (2007) 1 SCC 450 , it was held that as there was noncompliance of Section 50 of the NDPS Act, the respondents were rightly acquitted by the High Court. 17. In the case of State of Rajasthan v/s Parmanand (supra) the opium was recovered from Parmanand's bag. Parmanand's and Surajmal's personal searches were also carried out. However, there was joint communication made to them informing of their right under Section 50(1) of the NDPS Act. It was observed in para 10 as under : “10. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear of unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate.” 18. From the judgments, as aforestated, what emerges is that when a bag carried by a person is merely searched without there being any search of his person, Section 50 of the NDPS Act can have no application. However, if the bag carried by the person is searched as well as his person is also searched, Section 50 of the NDPS Act will clearly apply. However, if the bag carried by the person is searched as well as his person is also searched, Section 50 of the NDPS Act will clearly apply. 19. Considering the aforesaid legal position with regard to Section 50 of the NDPS Act and the fact that in the present case, admittedly, the person of the appellant was also searched in addition to the aluminum tin box which was carried by him ; the fact that prosecution had not given an offer to the appellant of being searched either by the Executive Magistrate or the Gazetted Officer, it can be said that the search was vitiated and consequently the appellant's conviction also stood vitiated. Apart from the said fact, the prosecution had failed to examine the panchas and as such non-examination of the two independent witnesses of the search and recovery, was another grave omission by the prosecution. Infact, a perusal of the panchanama being Exhibit – 25 also shows that there is noncompliance of Section 50 of the NDPS Act. As this appeal ought to succeed on noncompliance of Section 50 of the NDPS Act, none of the other grounds raised by the learned counsel for the appellant have been considered. 20. Considering the material on record, the Appeal deserves to be allowed. Accordingly the impugned Judgment and Order dated 13th December, 2010, passed by the learned Additional Sessions Judge, Malegaon in Sessions Case (NDPS) No.11 of 2004, is quashed and set aside. The appellant is acquitted of the offences punishable under Section 20(b)(ii) of the NDPS Act. The fine amount if paid, be returned to the Appellant. Bail bond, stands cancelled. The Appellant be released forthwith, if not required in any other case.