JUDGMENT Mr. Naresh Kumar Sanghi, J.: - Challenge in this criminal appeal is to the judgment of conviction dated 16.2.2001 and the order of sentence dated 19.2.2001, passed by the learned Judge, Special Court, Karnal, whereby the appellant, Balinder Singh, was held guilty for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ‘the NDPS Act’), and ordered to undergo rigorous imprisonment for ten years besides payment of fine of Rs.1,00,000/- and in default thereof to undergo further rigorous imprisonment for two and a half years. 2. Brief facts of the case are that on 13.2.1997, the then ASI Manvir Singh (PW8) along with fellow police officials was proceeding towards village Kaimla in Government Jeep bearing registration No. HNL-7123. Under his supervision a barrier was laid and the checking party started inspecting the vehicles passing therethrough. PW3 Mahinder Singh, resident of village Bastara, came there and in the meantime, the appellant also emerged there with a gunny bag on motorcycle bearing registration No. HR-05-C-5670. PW8 ASI Manvir Singh suspected some contraband in the gunny bag. He (ASI Manvir Singh) disclosed his identity to the appellant and thereafter a notice under Section 50 of the NDPS Act asking the appellant whether he wanted to get the search effected from him (PW8 ASI Manvir Singh) or before any Gazetted Officer was served. The appellant opted for being searched in the presence of some Gazetted Officer and, as such, he (appellant) was produced before PW4 Sukhdev Singh, who was then posted as Deputy Superintendent of Police, Assandh, when he was available near the Bus Stand, Karnal. On direction of PW4 Sukhdev Singh, the search of the gunny bag being carried by the appellant on his motorcycle, was conducted and it was found that the bag was containing 35 Kgs. of poppy husk. 200 grams of the poppy husk was taken out of the bag for the purpose of sampling. The parcel of the poppy husk drawn for sampling was prepared and the same was sealed with the seal ‘RS’. The bag containing remaining poppy husk was also sealed. Sample parcel as well as bag containing residue poppy husk were taken into possession vide recovery memo. Ex. PC. The motorcycle was also taken into police possession vide recovery memo. Ex. PD. PW8 ASI Manvir Singh sent a memo. (Ex. The bag containing remaining poppy husk was also sealed. Sample parcel as well as bag containing residue poppy husk were taken into possession vide recovery memo. Ex. PC. The motorcycle was also taken into police possession vide recovery memo. Ex. PD. PW8 ASI Manvir Singh sent a memo. (Ex. PE) to the Police Station, Gharaunda, for registration of the case, on the basis of which formal FIR (Ex.PE/1) was registered by PW6 Inspector Ram Sarup. PW6 Inspector Ram Sarup also made endorsement (Ex. PE/2) on the police memo (Ex.PE) and reached the spot where other police officials along with appellant were already present. PW8 ASI Manvir Singh produced the witnesses and the case property before PW6 Ram Sarup, Station House Officer, who, in turn, verified the fact of recovery and put his seal bearing letters ‘SD’ on both the packets. PW6 Ram Sarup also prepared the rough site plan (Ex. PH) and recorded the statements of witnesses. The appellant was arrested and thereafter he was personally searched, but nothing was recovered from his person. 3. After completion of the investigation on the spot, the police party along with the appellant arrived at the Police Station, Gharaunda. PW8 ASI Manvir Singh deposited the case property with the Moharrir Head Constable, Ramesh Kumar (PW2). 4. After completion of the investigation, the charge-sheet (report under Section 173 Cr.P.C.) for prosecution of the appellant for the offence punishable under Section 15 of the NDPS Act was presented. A copy of the charge-sheet along with its enclosures was supplied to the appellant free of cost. Finding a prima facie case, he was charge-sheeted for the offence punishable under Section 15 of the NDPS Act, to which he pleaded not guilty and claimed trial. In order to substantiate its allegations, the prosecution examined the following witnesses:- PW1 SI Sajjan Kumar: He had prepared the report under Section 173, Cr.P.C., after completion of the investigation. PW2 HC Ramesh Kumar: He had tendered in evidence his affidavit (Ex.PA). According to the contents of the affidavit, on 13.2.1997 when he was posted as Moharrir Head Constable at Police Station, Gharaunda, then PW8 ASI Manvir Singh had produced a sample packet containing poppy husk and other case property including a gunny bag containing residue poppy husk, which were smeared with seals ‘RS’ and ‘SD’. According to the contents of the affidavit, on 13.2.1997 when he was posted as Moharrir Head Constable at Police Station, Gharaunda, then PW8 ASI Manvir Singh had produced a sample packet containing poppy husk and other case property including a gunny bag containing residue poppy husk, which were smeared with seals ‘RS’ and ‘SD’. On 24.2.1997, the sample parcel in the same state in which it was received, was handed over to PW5- Constable Sunil Kumar for onward handing over to the Forensic Science Laboratory, Madhuban, District Karnal, vide Road Certificate No. 232, dated 24.2.1997. After doing the needful, PW5-Constable Sunil Kumar handed over the receipt to him. PW3 Mahinder Singh: He was a witness from public and given clean chit to the appellant. According to him, he knew the appellant being his co-villager and nothing was recovered from his (appellant) possession in his (PW Mahinder Singh) presence. Even the appellant was not arrested by the police in the presence of the said witness. The signatures of the witness were obtained on blank papers by the police by calling him in the police station. After declaring him hostile, the Public Prosecutor cross-examined him, but could not bring fruitful results for the prosecution. PW4 DSP Sukhdev Singh: He deposed that on 13.2.1997 when he was posted as Deputy Superintendent of Police, Assandh, and was present at the Bus Stand, Karnal, at that time the then ASI Manvir Singh (PW8) produced the appellant along with motorcycle bearing registration No. HR-05-C-5670 and the case property before him. PW3 Mahinder Singh was also present with them. PW8 ASI Manvir Singh apprised him that he had suspicion that there was contraband in the gunny bag available on the pillion of the motorcycle which was in possession of the appellant. On his direction, the gunny bag was checked and 35 Kgs. of poppy husk was found. 200 grams of the poppy husk was separated for the purpose of sampling. Two separate parcels were prepared and smeared with the seal bearing the letters ‘RS’. The seal after use was handed over to PW3 Mahinder Singh. The sample packet parcel as well as the packet containing the residue poppy husk were taken into police possession vide recovery memo, which was attested by this witness. The motorcycle was also taken into police possession. The seal after use was handed over to PW3 Mahinder Singh. The sample packet parcel as well as the packet containing the residue poppy husk were taken into police possession vide recovery memo, which was attested by this witness. The motorcycle was also taken into police possession. He identified the second sample as Ex.P1 and the bag containing the residue poppy husk as Ex.P2. PW5 Constable Sunil Kumar: He tendered his affidavit (Ex.PD) to be read in evidence. According to the contents of his affidavit, he had received the sample packet from Moharrir Head Constable-PW2 Ramesh Kumar on 24.2.1997 and deposited the same with the Forensic Science Laboratory, Madhuban, District Karnal, on the same day and after return to the police station handed over the receipt thereof to PW2 Ramesh Kumar. PW6 Inspector Ram Sarup: He deposed that on 13.2.1997 after receipt of police memo (Ex.PE) by hand through Constable Mukesh Kumar, formal FIR (Ex.PE/1) was recorded and the endorsement (Ex.PE/2) was made on police memo (Ex.PE). Thereafter he went to the spot where PW8 ASI Manvir Singh produced before him the appellant, prosecution witnesses and the packets containing poppy husk allegedly recovered from the appellant. He affixed his seal bearing the letters ‘SD’ on both the packets and directed PW8 ASI Manvir Singh to deposit the case property with the Moharrir Head Constable. PW7 HC Mann Singh: He was present on the spot at the time of recovery of poppy husk from the appellant and he fully supported the prosecution case. PW8 ASI Manvir Singh: He had investigated the case and he too deposed in detail with regard to apprehending the appellant, recovery of the poppy husk and the investigation carried out by him. 5. After completion of the prosecution evidence, the statement of the appellant in terms of Section 313, Cr.P.C., was recorded in which he denied all the incriminating material appearing against him and pleaded innocence. In spite of affording opportunity, the appellant did not lead defence evidence. 6. After hearing learned counsel for the parties, the learned Judge, Special Court, Karnal, held the appellant guilty and awarded the sentence as has been discussed in the earlier part of this judgment. 7. In spite of affording opportunity, the appellant did not lead defence evidence. 6. After hearing learned counsel for the parties, the learned Judge, Special Court, Karnal, held the appellant guilty and awarded the sentence as has been discussed in the earlier part of this judgment. 7. Learned counsel for the appellant at the very outset submitted that there was non-compliance of the provision contained in Section 50 of the NDPS Act since in the offer letter (Ex.PG), the word “Magistrate” is conspicuously missing and, as such, the offer of search given to the appellant by PW8 ASI Manvir Singh was incomplete. He further stated that the said offer was also invalid when PW8 ASI Manvir Singh stated that if the appellant so desired the search could be conducted by him (ASI Manvir Singh). He further contended that the independent witness, PW3 Mahinder Singh, who had allegedly witnessed the recovery, has failed to support the prosecution case. He also argued that there was a delay of 11 days in sending the sample to the Forensic Science Laboratory; there was no explanation as to why the said sample was retained for so many days in the police station; the evidence led by the prosecution was contradictory with regard to drawing of one or two samples from the gunny bag containing the poppy husk; the CFL Form-29 was not prepared on the spot and only the sample parcel was handed over to PW5 Constable Sunil Kumar for depositing the same with the Forensic Science Laboratory and, as such, the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt and the benefit of the same be extended to the appellant. 8. 8. On the other hand, learned counsel for the State has vehemently opposed the submissions made by the learned counsel for the appellant and submitted that there was complete compliance of Section 50 of the NDPS Act; since the contraband was recovered from a bag being carried by the appellant on his motorcycle, therefore, the compliance of Section 50 of the NDPS Act was not required; it was a chance recovery, therefore, the compliance of Section 50 of the NDPS Act was not required on that score as well; it cannot be said that there was delay in sending the sample to the Forensic Science Laboratory, particularly when the officials of the Forensic Science Laboratory, Madhuban, had found the sample seals intact on the sample and, as such, the appellant was not prejudiced from the fact that the sample was sent after 11 days of the recovery; there was no contradictions in the depositions of the prosecution witnesses with regard to one or two samples; PW4 DSP Sukhdev Singh was categoric in his deposition that two samples were drawn and even sample P1 was produced before him during his deposition and, as such, the prosecution has fully proved that two samples were drawn; even if it is assumed that one sample was drawn then also there was no non-compliance of any provision of the NDPS Act or the rules framed thereunder; and that the evidence of the prosecution witnesses was consistent, natural and probable, on the basis of which the learned Trial Court has rightly held the appellant guilty and, as such, the appeal is liable to be dismissed. 9. I have heard learned counsel for the parties and with their able assistance gone through the material available on record. 10. Before discussing the factual and legal aspects of the case, it is thought appropriate to first discuss the provisions as contained in Section 50 of the NDPS Act, which is reproduced below:- “50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under section 42 is about to search any person 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. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973(2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.” 11. Perusal of the above provisions reveal that the suspected person having the contraband has to be produced before the ‘Gazetted Officer’ or the ‘Magistrate’ for search. 12. A 5-Judge Bench of Hon’ble the Supreme Court in the matter of State of Punjab v. Baldev Singh, 1999 (3) R.C.R. (Criminal) 533, held as under:- i. It is imperative and obligatory on the officer to inform the accused of his right of search before Gazetted Officer or Magistrate; ii. Where accused gives option for search before Gazetted Officer or Magistrate and the officer failed to do so it would vitiate the conviction and sentence; iii. Whether safeguards provided in Section 50 have been observed would be determined by Court on basis of evidence led at the trial; iv. Use of evidence collected in breach of safeguards provided in Section 50 at the trial, would render the trial unfair; v. An illicit article seized from accused during search conducted in violation of Section 50 cannot be used as evidence of proof of unlawful possession of the contraband though any other material recovered during the search may be relied upon by the prosecution in other proceedings against the accused; and vi. A presumption under Section 54 can only be raised after prosecution has established that accused was found to be in possession of contraband in a search conducted in accordance with mandate of Section 50. In sub-para (4) of para 54 of the judgment, it was concluded as under:- “54(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.” 13. In Vijaysinh Chandubha Jadeja v. State of Gujarat, [2010(6) Law Herald (SC) 4241] : 2010 (4) R.C.R. (Criminal) 911, Hon’ble the Supreme Court held as under:- “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 NDPS 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 NDPS 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. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. .......” 14. In the matter of Union of India v. Shah Alam and another, [2009(4) Law Herald (SC) 2190] : 2009 (3) R.C.R. (Criminal) 158, Hon’ble the Supreme Court while placing reliance on the case of Dilip and another v. State of M.P., 2007 (1) R.C.R. (Criminal) 586, held that “the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the NDPS Act. Apart from this the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. It is significant to note here that a formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it is not that they were simply not produced before the Court”. In Dilip’s case (supra), Hon’ble the Supreme Court held as under:- “Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case. ......... the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW10 to comply with the said provisions. It was not done.” 15. In Nirmal Singh Pehlwan @ Nimma v. Inspector, Customs, Customs House, Punjab, [2011(6) Law Herald (SC) 4208 : 2011(4) Law Herald (P&H) 3404 (SC)] : 2011 (3) R.C.R. (Criminal) 831, Hon’ble the Supreme Court held that the provisions of Section 50 of the NDPS Act were mandatory and strict compliance thereof was called for. It was not done.” 15. In Nirmal Singh Pehlwan @ Nimma v. Inspector, Customs, Customs House, Punjab, [2011(6) Law Herald (SC) 4208 : 2011(4) Law Herald (P&H) 3404 (SC)] : 2011 (3) R.C.R. (Criminal) 831, Hon’ble the Supreme Court held that the provisions of Section 50 of the NDPS Act were mandatory and strict compliance thereof was called for. Any deviation therefrom would vitiate the prosecution. 16. In the case of Narcotics Central Bureau v. Sukh Dev Raj Sodhi, [2011(4) Law Herald (SC) 3103] : 2011 (3) R.C.R. (Criminal) 370, Hon’ble the Supreme Court held that the provision contained in Section 50 of the NDPS Act were mandatory and must be very strictly construed. 17. In Mohinder Kumar v. State, Panaji, Goa, 1995 (2) R.C.R. (Criminal) 599, a 3-Judge Bench of Hon’ble the Supreme Court held that the mandatory provisions of Section 42 and 50 are to be followed from the stage when officer comes to believe that accused persons are in custody of narcotic drugs. 18. In a latest judgment of Hon’ble the Supreme Court delivered in the case of State of Rajasthan v. Parmanand and another, [2014(2) Law Herald (SC) 913 : 2014(2) Law Herald (P&H) 1449 (SC)] : 2014 (2) R.C.R. (Criminal) 40, it was held as under:- “12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 13. xxx xxx xxx xxx 14. 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. 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. .........” 19. After discussing the provisions contained in Section 50 of the NDPS Act and the pronouncements by the Hon’ble Apex Court, it is necessary to have a look over the notice (Ex.PG) issued to the appellant before search in purported compliance of Section 50. The English translation of the operative part of the same reads as under:- “Notice under Section 50 of the NDPS Act I have doubt that there is some intoxicant material in the gunny bag tied on the back iron carrier of your Rajdoot bearing Registration No. HR-05C-5670. Through notice you are informed that are you satisfied with the search to be conducted by me or you want to get your search effected in the presence of any Gazetted Officer. Sd/- Manvir Singh P/ASI Police Station, Gharaunda. Dated 13/2/97" 20. From the perusal of the above notice allegedly issued in compliance of Section 50 of the NDPS Act, it is very much clear that the words “to be searched before a Magistrate” are conspicuously missing. It would also be apposite to take notice of the fact that the Investigating Officer had informed the appellant to be searched by him (I.O.) which was absolutely in derogation of the spirit of the mandatory provisions contained in Section 50 of the NDPS Act. 21. From the perusal of the provisions contained in Section 50 of the NDPS Act, the judgments pronounced by Hon’ble the Supreme Court and the notice issued to the appellant by the Investigating Officer in this case, it is very much clear that there was complete non-compliance of Section 50 of the NDPS Act. 21. From the perusal of the provisions contained in Section 50 of the NDPS Act, the judgments pronounced by Hon’ble the Supreme Court and the notice issued to the appellant by the Investigating Officer in this case, it is very much clear that there was complete non-compliance of Section 50 of the NDPS Act. Even at the cost of repetition, it is summarized as under:- i. It was not informed to the appellant that he could be produced before the Magistrate for his search; ii. The Investigating Officer himself offered to the appellant to be searched by him (I.O.); 22. Now the next question for consideration, as raised by the learned counsel for the State, is that the contraband was recovered from the gunny bag in a chance recovery and, as such, the provisions of Section 50 of the NDPS Act would not be applicable. It was also pointed out by the learned counsel for the State that no recovery was effected from the personal search of the appellant, therefore, the provisions contained in Section 50 of the NDPS Act would not be applicable. 23. The submissions of the learned counsel for the State cannot be accepted in view of the ratio of the latest judgment of Hon’ble the Supreme Court delivered in Parmanand’s case (supra). In the said case also the alleged recovery of the contraband was effected from the bag being carried by the accused of the said case and then his personal search was effected and their Lordships’ held that if the search would have been limited to the extent of search of bag, then there was no requirement of compliance of Section 50, but if the person of the appellant was subsequently searched, in that eventuality the mandate of Section 50 of the NDPS Act was to be complied with. 24. During course of arguments, learned counsel for the State also submitted that there was no necessity of complying with the provisions of Section 50 of the NDPS Act, therefore, the shortcomings by the Investigating Officer in issuance of the notice (Ex.PG) to the appellant should be ignored. I am afraid that such an argument raised by the learned counsel for the State can be sustained. I am afraid that such an argument raised by the learned counsel for the State can be sustained. If the Investigating Officer, on account of a recovery by chance would not have opted for issuance of a notice to the appellant in consonance with the mandate of Section 50 of the NDPS Act, in that eventuality there might not be any compulsion on the part of the Investigating Officer to comply with the provisions contained in Section 50 of the NDPS, but once he has opted to comply with the provisions of Section 50, then it was obligatory for him to adhere to the same in letter and spirit. From the facts narrated herein above, it is very much clear that the offer given to the appellant as per Section 50 of the NDPS Act, was not only incomplete, so far as the word “Magistrate” is missing, but it was also bad on the ground that the Investigating Officer offered the appellant to be searched by him (I.O.), therefore, this Court is of the firm opinion that not only the bag allegedly carried by the appellant was searched but his personal search was also conducted and, as such, the compliance of Section 50 of the NDPS Act was obligatory and since that has not been done, the prejudice caused to the appellant is writ large. The benefit of the same has to be extended to him. Therefore, the conviction and sentence of the appellant cannot be sustained. 25. This Court is not influenced by the submission of the learned counsel for the appellant when he submitted that there was a delay of 11 days in sending the sample to the Forensic Science Laboratory and, as such, no benefit can be extended to the appellant on that score. 26. The argument raised by the learned counsel for the appellant that PW3 Mahinder Singh, an independent person from the public, had failed to support the prosecution version, further strengthens the stand of the appellant that he was falsely implicated in the present case. 27. As a sequel to the above discussion, the present appeal is allowed. The conviction and sentence of the appellant, Balinder Singh, is hereby set aside and he is acquitted of the charge framed against him. The fine, if deposited, be returned to the appellant in accordance with the norms. ---------0.B.S.0------------ —————————