JUDGMENT : Rajiv Sharma, J. - The State has come in appeal against Judgment dated 22.1.2013 rendered by the learned Special Judge (I), Kangra at Dharamshala (HP) in Sessions Case No. 10-K/VII- 2009, whereby the respondents-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Sections 20-61-85 of the Narcotic Drugs & Psychotropic Substances Act, 1985, have been acquitted. 2. Case of the prosecution, in a nutshell, is that on 3.7.2008, ASI Vijay Kumar along with other police officials was on patrolling duty at new bus stand, Kangra and on the intervening night of 3.7.2008 and 4.7.2008, at 1.15 AM, they noticed two persons carrying a bag by holding its straps from each side. On seeing the police, they attempted to escape but were overpowered. On inquiry, they disclosed their identity. Bag carried by them was searched. Inside the bag, beneath the clothes, one white coloured polythene envelope wrapped in another envelope, green in colour was found and on checking the said envelope, Charas in the shape of sticks was found. It weighed 1.500 kg. From the recovered Charas, two samples of 25 grams each were separated and put inside a cloth parcel and sealed with two seals each bearing impression 'K'. Remaining residual quantity weighing 1.450 kg was put in the same polythene envelope and then put in a cloth parcel and sealed with four seal impressions of 'K'. Sample impression Ext. PW- 14/A was taken on separate cloth piece. Columns No. 1 to 8 of NCB form were filled and ink impression of seal 'K' was also taken. Special report was prepared and sent to Superintendent of Police, Kangra. Case property was handed over to SI Piar Chand for resealing and safe custody. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 14 witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They pleaded innocence. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. V.S. Chauhan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Lovneesh Kanwar, Advocate, appointed as legal aid counsel, in this case, has supported Judgment dated 22.1.2013. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. Hence, this appeal. 4. Mr. V.S. Chauhan, Additional Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Lovneesh Kanwar, Advocate, appointed as legal aid counsel, in this case, has supported Judgment dated 22.1.2013. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Piar Chand deposed that he was posted as SI/Additional SHO, Police Station, Kangra. On 3.7.2008, he received a Rukka sent by the then Inspector/ SHO Surinder Sharma. On the basis of same, FIR was registered. He resealed three parcels with seal 'H'. He also filled in columns No. 9 to 11 of the NCB form. 8. PW-2 ASI Vijay Kumar testified that he was posted as an Investigating Officer at Police Station, Kangra. On 3.7.2008, he along with other police party proceeded from Police Station, Kangra under the supervision of Inspector/ SHO Surinder Sharma, for patrolling in Government Vehicle. At about 1.15 AM, on the intervening night of 3.7.2008 and 4.7.2008, they were patrolling from new bus stand Kangra towards Kangra city. They spotted two boys moving on road near Polytechnic Kangra. They were carrying a bag jointly. They attempted to run away after noticing police vehicle. They were overpowered. Their identity was ascertained. Search of bag carried by accused was conducted in his presence. One green coloured polythene was found in the bag in which Charas in the shape of sticks was recovered. It weighed 1.500 kg. Two samples of 25 grams each were separated from the total Charas and sealed in two different parcels and sealed with seal impressions of 'K'. Remaining Charas along with polythene bag was also sealed with four impressions of seal 'K'. Other articles were also sealed. Case property was produced by the learned Public Prosecutor during the examination of PW-2 Vijay Kumar. In his cross-examination, he has admitted that the Polytechnic was in Kangra town. They apprehended accused in front of the Polytechnic at about 1.15 AM on the intervening night of 3/4.7.2008. There were Chowkidars in the Polytechnic Kangra. They did not associate any Chowkidar of Polytechnic. At a distance of about 100-200 metres, there was a PWD office. He did not know whether there were Chowkidars available during night or not. They apprehended accused in front of the Polytechnic at about 1.15 AM on the intervening night of 3/4.7.2008. There were Chowkidars in the Polytechnic Kangra. They did not associate any Chowkidar of Polytechnic. At a distance of about 100-200 metres, there was a PWD office. He did not know whether there were Chowkidars available during night or not. He did not try to associate witnesses from the Polytechnic or from the PWD office nor he called any Chowkidar to witness the recovery. They did not call any Chowkidar from Kangra market. He further admitted that on coming to know that there was Charas in the poly bag, IO did not give any option under Section 50 of the Act. At that time, personal search of accused was conducted by the IO and after that poly bag of accused Ext. P5 was opened and Charas in the shape of sticks was found. They had IO kit bag. During night hours no witness was present on the taxi stand at bus stand or near the Polytechnic taxi stand. No taxi driver met them on the taxi stand. They did not visit taxi stand to associate any witness. Bus stand was 500 metres from the Polytechnic. He also admitted that a large number of taxis are available on the bus stand. He also admitted that taxi drivers are also available on the bus stand. Seal 'K' was of Surinder Sharma. It was made of iron. Seal after use was handed over to him. He was also posted in the same Police Station. This seal had been lost by him about a month earlier. SHO did not demand any seal from him till that date. NCB form Ext. PW-2/C was prepared on the spot by the IO. First part of NCB form was prepared by Surinder Sharma, SHO Kangra, in his presence. 9. PW-3 HHC Jagdev Singh deposed the manner in which accused were apprehended, Charas was recovered. In his cross-examination, he has admitted that the SHO asked both the accused that he had a suspicion that they might be carrying contraband and intended to take their search. No consent memo to this effect was reduced into writing. IO Kit was in possession of IO, which was of leather. Seal 'K' was of iron. They did not associate any independent witness because none was available there. They remained on the spot upto 5.30 AM. No consent memo to this effect was reduced into writing. IO Kit was in possession of IO, which was of leather. Seal 'K' was of iron. They did not associate any independent witness because none was available there. They remained on the spot upto 5.30 AM. No police personnel was sent by the IO to procure the presence of any independent witness during their stay at the spot. They did not try to associate Chowkidar of Polytechnic. Distance between bus stand and Polytechnic was 1/2 km. There was a taxi stand at the bus stand premises. He admitted that drivers used to remain present in their respective vehicles. He also admitted that the taxi drivers were also not associated by them in the investigation. 10. PW-4 Constable Purshottam Dass also deposed the manner in which accused were apprehended and search, sealing and seizure proceedings were completed at the spot. He admitted in his cross-examination that new bus stand was at a distance of 100-150 metres from the Polytechnic. He also admitted that there was a taxi stand at the new bus stand Kangra and drivers used to be available with their taxis. Since it was night time, therefore, no driver was available. Volunteered that SHO had gone to procure presence of independent witnesses at New Bus Stand but he returned alone. SHO told them that he could not procure any independent witness at new bus stand. The SHO had left alone to procure the independent witnesses towards new bus stand Kangra. He had gone in the vehicle. The old bus stand was at a distance of 500-600 metres from the place of recovery. He also admitted that there was a taxi stand at Tehsil Chowk. 11. PW-5 Constable Narinder Singh also deposed the manner in which accused were apprehended. In his cross-examination, he has admitted that Purshottam had taken Rukka and case property to the Police Station. He also admitted that a large number of vehicles pass through the place where proceedings were conducted. 12. PW-6 Constable Kuldeep Singh deposed that he was posted as MHC Police Station, Kangra. He had brought the original record. As per Malkhana Register on 3.7.2008, at 6.30 AM, Inspector Surinder Sharma deposited one bag Ext. P9. The bag contained daily use articles, ten in number, which were Ext. P10. 12. PW-6 Constable Kuldeep Singh deposed that he was posted as MHC Police Station, Kangra. He had brought the original record. As per Malkhana Register on 3.7.2008, at 6.30 AM, Inspector Surinder Sharma deposited one bag Ext. P9. The bag contained daily use articles, ten in number, which were Ext. P10. She also deposited with him personal search articles of both the accused persons which were taken into possession after arrest of the accused persons. He entered the case property at Sr. No. 124/08 in the Malkhana Register. On the same morning, SI Piar Chand at 7.10 AM deposited with him bulk parcel of Charas Ext. P1, two sample parcels, Ext. P2 and Ext. P3, which were sealed with seals 'K' and 'H'. He also deposited with him two NCB forms and specimen of both the seals. He entered the case property at Sr. No. 125/08. Same day, vide RC No. 180/08, he dispatched one sample parcel, sample seal, copy of FIR, copy of seizure memo and NCB form to FSL Junga for chemical analysis through HHC Piar Chand. In his cross-examination, he has admitted that original seal was not deposited with him. 13. PW-8 HHC Piar Chand deposed that on 3.7.2008, MHC Kuldeep Singh handed over to him one parcel allegedly containing sample of Charas which was duly sealed with seals 'K' and 'H'. Samples of both the seals, NCB form, copy of FIR and seizure memo were also handed over to him vide RC No. 180/08 with the direction to hand over said articles at FSL Junga. He deposited the articles in the office of Chemical Analyst Junga on 4.7.2008. 14. PW-10 Dalip Kumar deposed that he was working as a stop-gap MHC on 17.11.2010. He had brought Malkhana Register and Road Certificate Book pertaining to the case. He dispatched sample parcel which had not been already sent to FSL and the parcel of bulk Charas, both were sealed with seals 'K' and 'H', the bulk was sealed with four seal impressions of 'K' and two seal impressions of 'H' and sample parcel was sealed with two impressions each of 'K' and 'H'. He sent the sample parcel and bulk Charas along with copy of FIR, samples of both the seals and other documents to FSL Junga through HHC Narottam Singh No. 434 vide RC No. 290/10 dated 17.11.2010. He sent the sample parcel and bulk Charas along with copy of FIR, samples of both the seals and other documents to FSL Junga through HHC Narottam Singh No. 434 vide RC No. 290/10 dated 17.11.2010. In his cross-examination, he has admitted that he did not know whether NCB form was sent by him or not with the bulk parcel and sample parcels on 17.11.2010. He also admitted that there was no mention qua NCB form in RC vide which he sent the parcels. 15. PW-14 Dy.SP. Surinder Sharma deposed that on 2.7.2008, he went to the spot. Recovery was effected from the bag. Codal formalities were completed. Rukka Ext. PW-4/A was written and sent for the registration of case through Purshottam Dass. In his cross-examination, he has admitted that he filled columns No. 1 to 8 of NCB form with same pen and ink. He admitted that there was Polytechnic in the close vicinity of the place of recovery. He admitted that recovery was made on Kangra-Shimla highway. 16. Accused were apprehended at 1.15 AM on the intervening night of 3/4.7.2008 on Kangra-Shimla Highway. PW- 2 Vijay Kumar has categorically deposed that the Polytechnic was in Kangra town. Accused were apprehended in front of the Polytechnic. Police has not joined any Chowkidar from Polytechnic. There was a PWD office also. Police did not join any Chowkidar from PWD office. PW-2 Vijay Kumar admitted that there were a large number of taxis available at bus stand. There were taxi drivers available. However, fact of the matter is that, despite availability, no independent witnesses were joined. Similarly, PW-3 Jagdev Singh also admitted that the distance between bus stand and Polytechnic was 1/2 kms. There was taxi stand at bus stand where taxi drivers used to remain in their vehicles. Taxi drivers were not associated in the investigation. PW-4 Constable Purshottam Dass also deposed that the new bus stand was at a distance of 100-150 metres from the Polytechnic. There was taxi stand at new bus stand Kangra. SHO went in search of independent witnesses but no independent witnesses were available at bus stand. He has also admitted that nobody has visited bus stand to procure independent witnesses. He also admitted that it dawns at 4 AM in the month of July. PW-5 Narinder Singh also admitted that a large number of vehicles pass through the place where proceedings were conducted. He has also admitted that nobody has visited bus stand to procure independent witnesses. He also admitted that it dawns at 4 AM in the month of July. PW-5 Narinder Singh also admitted that a large number of vehicles pass through the place where proceedings were conducted. PW- 14 Surinder Sharma has also admitted that place of recovery was on Kangra-Shimla Highway. It was neither a secluded place nor an isolated place. Police should have joined independent witnesses from either bus stand or Chowkidar of Polytechnic or PWD office. Taxis were also available and it has come on record that taxi drivers used to sleep in their vehicles. Many vehicles have passed through the place where recovery was effected. Police could easily request owners or passengers of the vehicles to become witnesses. PW-2 ASI Vijay Kumar deposed that nobody has gone to find out independent witness. PW-3 HHC Jagdev Singh has categorically testified in his examination-in-chief that no police personnel was sent by the IO to procure presence of independent witnesses. PW-4 Constable Purshottam Dass deposed that the SHO had gone to new bus stand in the vehicle to procure independent witnesses. However, PW-14 Surinder Sharma, the then SHO, has not deposed that he had gone to procure presence of independent witnesses. 17. PW-2 ASI Vijay Kumar has categorically deposed in his cross-examination that when he came to know that there was Charas in the poly bag, IO did not give option under Section 50 of the Act. At that time, personal search of the accused was conducted by the IO and after that polythene bag was opened. Charas in the shape of sticks was found. Similarly, PW-3 Jagdev Singh has deposed that SHO asked both the accused that he had a suspicion that they might be carrying contraband and intended to take their search. No consent memo to this effect was reduced into writing. It was not necessary for the police to conduct personal search of the accused since contraband was recovered from the bag but despite that, as per statements of PW- 2 ASI Vijay Kumar and PW-3 Jagdev Singh, personal search of the accused was carried out. Neither the accused were apprised of their legal right to be searched before a gazetted officer or a Magistrate nor any consent memo was prepared. Thus there is violation of mandatory provisions of Section 50 of the Act. 18. Neither the accused were apprised of their legal right to be searched before a gazetted officer or a Magistrate nor any consent memo was prepared. Thus there is violation of mandatory provisions of Section 50 of the Act. 18. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their lordships have held as under: "15. 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. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign. 19. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign. 19. 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 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 ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. 20. 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." 19. Thus, the prosecution has failed to prove case under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 against the accused person. 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." 19. Thus, the prosecution has failed to prove case under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 against the accused person. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court. 20. In view of the discussion and analysis made herein above, the appeal has no merit and the same is dismissed. Bail bonds of accused are discharged. All pending applications are also disposed of.