JUDGMENT : Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 30.6.2011, rendered by the learned Special Judge (FTC), Chamba, H.P., in Sessions trial No. 13/2011, whereby the respondent-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been acquitted. 2. The case of the prosecution, in a nut shell, is that on 28.2.2011, at about 5:00 AM, HC Bhagwan Chand along with ASI Jeet Singh, Const. Anuj and Const. Subhash proceeded from Police post Banikhet to lay Nakka at place called Golli, pursuant to daily dairy rapat No. 14 vide Ext. PW-10/A. They reached at a distance of 200 meters ahead from Golli at 5:30 AM on Sundla Chohra road and a Nakka was laid. In the meantime, ASI Jeet Singh received telephonic call at 7:30 AM at the spot and departed to the Police Post from the spot. HC Bhagwan Chand along with two police officials remained at the spot. At about 9:30 AM, accused was seen coming from Sundla side carrying a brown coloured bag on his right hand but he tried to run away on seeing the police. He was nabbed. The identity of the accused was also ascertained. The accused was apprised that search of the bag was required and that he may opt for search before a Magistrate or Gazetted Officer. The accused consented to be searched by the police present at the spot, qua which consent memo Ext. PW-1/A was prepared. No independent witness was available, therefore, search of the bag of the accused was carried out in the presence of Const. Anuj Kumar and Const. Subhash Chand. A white coloured plastic packet was recovered from the bag of the accused which was containing black coloured hard substance in the shape of candles and balls. It was found to be charas. It weighed 1 kg. 200 grams. The charas so recovered was put in the same plastic packet which was put in the same bag and wrapped and parceled in a piece of cloth and sealed with three seals of seal “P”. Sample seal Ext. PW-1/C was separately drawn on a piece of cloth. NCB form in triplicate was filled in on the spot. Thereafter, rukka Ext. The charas so recovered was put in the same plastic packet which was put in the same bag and wrapped and parceled in a piece of cloth and sealed with three seals of seal “P”. Sample seal Ext. PW-1/C was separately drawn on a piece of cloth. NCB form in triplicate was filled in on the spot. Thereafter, rukka Ext. PW-8/A was scribed and sent to the Police Station for registration of case through Const. Anuj at 11:30 AM, on the basis of which FIR Ext. PW-6/A was registered. The case property was produced for resealing before SHO Biswas Kumar. He resealed the same in the presence of witness Hem Raj by affixing two seals of seal ‘N” and drew two specimen seals of seal “N” for sample on Ext. PW-1/C. He prepared reseal memo Ext. PW-4/A and deposited the parcel along with sample seal and NCB forms with MHC Arun Kumar. The entry of the case property was made at Sr. No. 79 in the malkhana register. The case property was sent to FSL, Junga for chemical analysis. The report of the Chemical Analyst is Ext. PX. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as nine witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. P.M. Negi, learned Dy. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Ramesh Sharma, Advocate for the accused has supported the judgment of the learned trial Court dated 30.6.2011. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Const. Anuj Kumar deposed that at about 9:30 AM, one person was seen coming on foot from Sundla side. He was carrying a bag on his right hand. He got frightened and turned back. He tried to flee. He was overpowered. He was apprised of his legal right to be searched either before a Magistrate or a Gazetted Officer but the accused consented to be searched by the police at the spot. He was carrying a bag on his right hand. He got frightened and turned back. He tried to flee. He was overpowered. He was apprised of his legal right to be searched either before a Magistrate or a Gazetted Officer but the accused consented to be searched by the police at the spot. He was carrying a bag. It was searched. The bag contained charas. It weighed 1 kg 200 grams. Sealing proceedings were completed on the spot. Rukka was prepared. It was handed over to him at 11:30 AM to be taken to PS Dalhousie for registration of the case. The case property was produced while examining PW-1 Const. Anuj Kumar. In his cross-examination, he admitted that they proceeded from Police Post at 5:00 AM in a private vehicle by taking lift. He did not remember the number of the said private vehicle. They did not stop in between Police Post and the spot. He denied the suggestion that a rain shelter was situated near the spot. Volunteered that the rain shelter was at a distance of 200 meters from the spot on the bifurcation of Sundla Chohda road from the main road. He admitted that a tea stall (rehri) was situated adjacent to the rain shelter. Volunteered that no one was present at that time in the tea stall. He admitted that people wait for buses during morning time for their destination in the rain shelter. He denied that there were 15-20 dhabas and houses at Golli. Volunteered that there were 2-3 dhabas whereas village was across the Nalla. He did not remember as to how many vehicles were stopped and checked by them so long he remained present at the spot but they had stopped and checked some vehicles. 7. PW-2 Const. Subhash Chand deposed the manner in which the accused was apprehended at 9:30 AM, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he denied the suggestion that rain shelter was situated at the spot. Volunteered that rain shelter was at a distance of 200 meters from the spot. The owner of the tea stall remains present there. They had checked many vehicles so long he remained present at the spot. He signed consent memo and personal search memo. Copy of rukka was handed over to him at 11:30 AM. After the accused was nabbed, many vehicles crossed from the spot. The owner of the tea stall remains present there. They had checked many vehicles so long he remained present at the spot. He signed consent memo and personal search memo. Copy of rukka was handed over to him at 11:30 AM. After the accused was nabbed, many vehicles crossed from the spot. Those vehicles were not stopped by them. HC Bhagwan Chand had asked him to stop two-three vehicles but the vehicles did not stop. No intimation was given to the Police Station Dalhousie or to any Police Station that the vehicles sped away despite being signaled to stop. He was not sent by the IO to rain shelter to bring tea stall owner to the spot. The nearest village from the spot was at a distance of two kms. There were two three Dhabas at Golli. Neither he nor Anuj was sent to the Dhabas to bring their owners to the spot. 8. PW-3 Const. Rajinder Kumar deposed that on 1.3.2011, MHC Arun handed over to him the case property duly sealed with three seals of “P” and two seals of “N” along with NCB forms, sample seals and docket vide RC No. 23/11 for being delivered at FSL, Junga, which he delivered on 4.3.2011 in safe condition under receipt. 9. PW-4 Const. Hem Raj testified that HC Bhagwan Chand handed over one sealed parcel duly sealed with three seals of seal “P” along with sample seal, NCB forms in triplicate for resealing purpose to SHO Biswas Kumar. He resealed the parcel by affixing two seals of seal “N” and took specimen of seal on piece of cloth vide Ext. PW-1/C in his presence. 10. PW-6 HC Arun Kumar deposed that on 28.2.2011, rukka was received from HC Bhagwan Chand through Const. Anuj Kumar at about 12:30 PM. He entered the FIR Ext. PW-6/A on the basis of rukka. On the same day, at about 4:40 PM, SHO Biswas Kumar handed over to him duly sealed parcel with three seals of seal “P” and two seals of seal “N” along with sample seal, NCB forms in triplicate and articles of jamatalashi. On 1.3.2011, he handed over the case property to Const. Rajinder Kumar vide RC No. 23/11 for being deposited at FSL, Junga. 11. On 1.3.2011, he handed over the case property to Const. Rajinder Kumar vide RC No. 23/11 for being deposited at FSL, Junga. 11. PW-8 HC Bhagwan Chand also deposed the manner in which the accused was apprehended at 9:30 AM, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he admitted that rain shelter was situated at a distance of about 200-250 meters from the spot. He admitted that a tea stall was also situated near the rain shelter. Volunteered that the tea stall was in the shape of Rehari but no one was present on that day at the tea stall. He did not know that the people wait for buses in the rain shelter. There were three-four dhabas at a distance of one km. from the place of nakka. He had checked 4-5 vehicles in between 5:30 AM to 9:30 PM. One of the vehicles was bus, but he did not remember the number of the bus. He had deputed Const. Anuj Kumar in search of some independent witnesses but he came back as no independent witnesses were available. 12. It has come in the statement of PW-1 Const. Anuj Kumar that there was rain shelter at a distance of 200 meters from the spot. He admitted that people wait for buses during morning time for their destination in the rain shelter. He admitted that there were 2-3 dhabas whereas village was across the Nalla. He did not remember as to how many vehicles were stopped and checked by them so long he remained present at the spot but they had stopped and checked some vehicles. PW2 Const. Subhash Chand also deposed that rain shelter was at a distance of 200 meters from the spot. They had checked many vehicles so long he remained present at the spot. He also deposed during his cross-examination that the nearest village from the spot was at a distance of two kms. There were two three Dhabas at Golli. Neither he nor Anuj was sent to the Dhabas to bring the Dhaba owners to the spot. After the accused was nabbed, many vehicles crossed from the spot. These vehicles were not stopped by them. No intimation was given to the Police Station Dalhousie or to any other Police Station that the vehicles sped away despite being signaled to stop. Neither he nor Anuj was sent to the Dhabas to bring the Dhaba owners to the spot. After the accused was nabbed, many vehicles crossed from the spot. These vehicles were not stopped by them. No intimation was given to the Police Station Dalhousie or to any other Police Station that the vehicles sped away despite being signaled to stop. However, surprisingly enough, PW-8 HC Bhagwan Chand deposed that he had deputed Const. Anuj Kumar in search of some independent witnesses but he came back as no independent witness was available. PW-2 Const. Subhash Chand has categorically deposed in his cross-examination that neither he nor Anuj was sent to the Dhabas to bring their owners to the spot. The police should have associated local/independent witnesses in order to inspire confidence in search, seizure and sealing proceedings on the spot as the rain shelter was just at a distance of 200 meters from the spot and the incident is of a broad day light. Moreover, the nearest village was also across the Golli nallah. 13. It has come on record that many vehicles had also crossed from the spot. The occupants of those vehicles were not tried to be associated as witnesses. According to PW-2 Const. Subhash Chand, HC Bhagwan Chand had asked him to stop two-three vehicles but the vehicles did not stop. If that was so, the action under the Code of Criminal Procedure ought to have been taken against the drivers of the vehicles which did not stop. 14. The case of the prosecution is that the accused was apprehended at 9:30 AM. He was apprised of his legal right to be searched either before a Magistrate or a Gazetted Officer. The consent memo Ext. PW-1/A was prepared to this effect. We have perused consent memo Ext. PW-1/A. The accused was told that he has right to be searched before the police, a Magistrate or a Gazetted Officer. It was signed by PW-1 Const. Anuj Kumar as well as PW-2 Const. Subhash Chand. The accused is to be apprised about his legal right to be searched either before a nearest Magistrate or a Gazetted Officer. The police could not give him third option to be searched before the police. Since the charas was recovered from the bag, the personal search of the accused was not required. Subhash Chand. The accused is to be apprised about his legal right to be searched either before a nearest Magistrate or a Gazetted Officer. The police could not give him third option to be searched before the police. Since the charas was recovered from the bag, the personal search of the accused was not required. However, the fact of the matter is that the same was undertaken in breach of Section 50 of the ND & PS Act. Section 50 of the N.D & P.S. Act is mandatory. 15. 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. 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. 17. 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. 18. 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 Surajmal 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 authorized 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. 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 authorized 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 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 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.” 16. 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.” 16. The police has neither associated independent witnesses during search, seizure and sealing proceedings on the spot nor consent memo is in conformity with Section 50 of the ND & PS Act. Section 50 of the ND & PS Act is mandatory. Thus, the prosecution has failed to prove the case against the accused under Sections 20 of the ND & PS Act that the charas was recovered from the conscious and exclusive possession of the accused. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 30.6.2011. 17. Accordingly, there is no merit in this appeal and the same is dismissed.