JUDGMENT : Sabina, J. Appellants had faced trial in F.I.R. No. 312/2002 registered at Police Station Sadar, District Sikar, under Section 8/18(c) and 8/20 Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as 'the Act'). 2. Trial court vide judgment/order dated 16.4.2010, ordered the conviction and sentence of the appellants under Section 8/18(c) and 8/20(b)(II)(C) of the Act. Hence, the present appeal by the appellants. 3. Prosecution story in brief is that on 5.12.2002 Mool Chand was posted as Traffic Police Incharge. During checking at about 9.50 a.m., it was found that one jeep was coming from Laxmangarh side. The number of the jeep was not clearly visible. The said official signaled the jeep to stop and asked the driver to show the papers of the vehicle. One more person was sitting next to the driver. Driver could not produce the papers of the vehicle. The person sitting next to the driver said that they should be allowed to go and offered Rs. 5,000/- to the official. On enquiry by the official Mool Chand, the said person disclosed that they were carrying Ganja and Opium. Mool Chand sent a wireless message to Prakash Kumar Sharma, Circle Officer to reach the spot and take over the investigation of the case. Thereafter Prakash Kumar Sharma reached the spot. Notice under Section 50 of the Act was given to the accused and they offered to get themselves searched in the presence of official Prakash Kumar Sharma. Ajay Sharma and Sanatan Sharma were joined as independent witnesses. When accused Rohitash was searched, it was found that he had tied a green colour cloth on his waist and when the same was opened it contained a polythene bag. From the said bag opium was recovered. From the jeep bag containing Ganja was recovered. When the accused Mahender Singh was searched, it was found that he had also tied a green colour cloth on his waist. When the said cloth was opened, a polythene bag was recovered. From the said polythene bag opium was recovered. Rs. 5,000/- were also recovered from the personal search of accused Mahender. From the Tool Box of the jeep Rs. 38,500/- were recovered. Opium recovered from accused Mahender weighed 505 grams whereas opium recovered from accused Rohitash weighed 500 grams. From the recovered opium two samples weighing 50 grams each were separated and were made into sealed parcels. Rs. 5,000/- were also recovered from the personal search of accused Mahender. From the Tool Box of the jeep Rs. 38,500/- were recovered. Opium recovered from accused Mahender weighed 505 grams whereas opium recovered from accused Rohitash weighed 500 grams. From the recovered opium two samples weighing 50 grams each were separated and were made into sealed parcels. From the bag two samples weighing 500 grams each were separated and were made into sealed parcels. Case property was taken in possession. 4. After completion of investigation and necessary formalities, challan, was presented against the appellants. 5. In order to prove its case, prosecution examined 21 witnesses during trial. After the close of the prosecution evidence, appellants when examined under Section 313 Code of Criminal Procedure 1973 (hereinafter referred to as Cr.PC.'), prayed that they were innocent and had been falsely involved in this case. 6. Trial Court vide judgment/order dated 16.4.2010 ordered the conviction and sentence of the appellant under Section 8/18(c) and 3/20(b) (II) (C) of the Act. Hence, the present appeal by the appellants. 7. Learned counsel for the appellant has submitted that the appellants me liable to be acquitted of the charges framed against them as the prosecution had failed to prove its case. There was complete violation of mandatory provisions of Section 50 of the Act. A joint notice was allegedly given to the appellants under Section 50 of the Act. In fact the said notice had been manipulated at a later stage. Apart from Ex.R5 memo with regard to consent under Section 50 of the Act, none of the memos were signed by the appellants. The independent witnesses who had allegedly attested the memos had not supported the prosecution case during trial. Hence, the execution of the memos could not be said to have been duly proved on the record. In support of his argument, learned counsel has also placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Rajasthan v. Parmanand and Anr. AIR 2014 SC 1384 , wherein it has been held as under "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. 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 or 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. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Sumjmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorised respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parmanand and search of person of the respondents is, 1 therefore, vitiated and resultantly their conviction is also vitiated. 15. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW- 5 J.S. Negi, the Superintendent, who was a part of the raiding party. 15. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW- 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any j opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this j ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed." 8. Learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in the case of Makhan Singh v. State of Haryana 2015 AIR SCW 3557 wherein it has been held as under "11. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed." 8. Learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in the case of Makhan Singh v. State of Haryana 2015 AIR SCW 3557 wherein it has been held as under "11. It is to be pointed out that the prosecution misdirected itself by unnecessarily focusing on Section 50 of the NDPS Act, when the fact is that the recovery has been made not from the person of the appellant but from the fitter-rehra which was allegedly driven by the appellant and, thus, Section 50 of the NDPS Act had no application at all. The prosecution ought to 7 Page 8 have endeavoured to prove whether the appellant had some nexus with the seized fitter-rehra. Though the police has seized the fitter-rehra (Ext. PB), the prosecution has not adduced any vidence either by examining the neighbours or others to bring home the point that the appellant was the owner or possessor of the vehicle. PW6 admitted in his cross-examination that signature or thumb impression of the appellant was not obtained on the recovery memo (Ext. PB). In our opinion, courts below erred in attributing to the appellant the onus to prove that wherefrom fitterrehra had come, especially when ownership/ possession of fitter-rehra has not been proved by the prosecution." 9. Learned State Counsel, on the other hand has opposed the appeal and has submitted that the prosecution had been successful in proving its case. 10. In the present case, opium and Ganja were allegedly recovered from the possession of the appellants. It is the case of the prosecution that both the appellants had tied a cloth on their waist and from the said cloth opium was recovered. From the jeep allegedly belonging to the appellants Ganja was recovered. Official witnesses have deposed as per the prosecution story. However, independent witnesses P.W. 1 Ajay Sharma and P.W.2 Sanatan Sharma have not supported the prosecution case during trial. The said witnesses have deposed that no recovery of the contraband from the appellants was effected in their presence. They were merely made to sign the memos. In this background if the memos prepared at the time of recovery are examined, it is noticed that Ex.P.2 memo regarding taking in possession of the sample seal, Ex.P.3 memo regarding destroying the sample seal, Ex. They were merely made to sign the memos. In this background if the memos prepared at the time of recovery are examined, it is noticed that Ex.P.2 memo regarding taking in possession of the sample seal, Ex.P.3 memo regarding destroying the sample seal, Ex. P.4 memo regarding consent given by the independent witnesses to join the investigation, memo Ex.P.5 consent memo under Section 50 of the Act, Ex.P.6 memo regarding taking in possession of the jeep in question, Ex.P.7 memo regarding taking in possession the currency notes are signed by the independent witnesses and are alleged to have been prepared by P.W. 19 Circle Officer. Memo relating to recovery of the jeep is not signed by the appellants. Although independent witnesses have admitted their signatures on the above memos but they have stated that no such proceedings took place in their presence. Ex.P.12 is the memo prepared with regard to taking in possession recovered Ganja and opium along with samples. However, the said memo is not signed by the independent witnesses or the appellants. In case the independent witnesses were actually present at the spot memo Ex.P.12 should have been signed by the independent witnesses also. Apart from Ex.P.5 consent memo under Section 50 of the Act, none of the recovery memo bear the signatures of the appellants. Ex.P.1 is the memo prepared with regard to recovery of contraband from the appellants. However, the said memo also does not bear signatures of the appellants. So far as the consent memo Ex.P.5 is concerned, a joint offer was given to the appellants to get themselves searched in the presence of a Gazetted Officer or a Magistrate or Dy. S.P. (P.W.19). The said memo is attested by independent witnesses but the independent witnesses have deposed that they had merely signed the document but no such proceeding had taken place in their presence. 11. In view of the above factual background, the prosecution case with regard to recovery of contraband from the appellants is rendered doubtful. The memos relating to recovery of the contraband from the appellants are not signed by the appellants. The only memo which bears the signatures of the appellants is a joint consent memo prepared under Section 50 of the Act. The independent witnesses have not corroborated the execution of Ex.P.5 which was prepared by P.W. 19. The memos relating to recovery of the contraband from the appellants are not signed by the appellants. The only memo which bears the signatures of the appellants is a joint consent memo prepared under Section 50 of the Act. The independent witnesses have not corroborated the execution of Ex.P.5 which was prepared by P.W. 19. Appellants have denied the execution of Ex.P.5 in their statement under Section 313 Cr.PC. In the facts of the present case, the possibility that Ex.P.5 might have been introduced at a later stage to fill up the legal requirement cannot be ruled out. So far as memos Ex.P.2, Ex.P.3, Ex.P.6, Ex.P.7 are concerned, the same also remain uncorroborated by the independent witnesses. The said memos were prepared by P.W. 19 and attested by P.W.1 and P.W.2. However, RW.1 and P.W.2 have denied the execution of the proceedings, mentioned in the said memos, in their presence. Further in case the independent witnesses had actually witnessed the proceedings they would have attested Ex.R12 also which relates to taking in possession of the contraband by the police. Ex.P.12 Ex.P.1 and Ex.R6 do not bear the signatures of the appellants. 12. An accused is presumed to be innocent till proved guilty. Offence under the Act invites stringent punishment. Hence, the prosecution is required to establish its case by leading cogent and convincing evidence. However, in the present case prosecution case is not free from doubt. Appellants are liable to be acquitted of the charge framed against them by giving them benefit of doubt. 13. Accordingly this appeal is allowed. Appellants are acquitted of the charge framed against them by giving them benefit of doubt. Appellants who are in custody be set at liberty forthwith if not required in any other case.