JUDGMENT : Rajiv Sharma, J. This appeal has been preferred against Judgment dated 19.3.2015 rendered by the learned Special Judge, Mandi, District Mandi, Himachal Pradesh in Sessions Trial No. 03/2010, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.40,000/-, and in default of payment of fine, to further undergo simple imprisonment for six months. 2. Case of the prosecution, in a nutshell, is that PW-9 HC Jagdish Chand, PW-6 HC Lalit Kumar, Constable Ram Dass and Constable Lal Singh had gone for patrolling on 10.11.2009. At about 8.30 PM, police party was going towards Pandoh where accused was spotted. He was carrying a bag in his hand. Accused on seeing the police party turned around and tried to run away. the accused was overpowered and bag carried by him was searched. A polythene packet was recovered which was found containing Charas. It weighed 450 grams. The Charas was kept in a cloth parcel Ext P-1 alongwith carry bag Ext. P-2 and Polythene Ext P-3 and was sealed with 6 seals of impression ‘H’. Sample seal Ext PW-6/A was drawn and NCB form Ext PW-6/B was filled in triplicate. IO thereafter prepared Rukka and sent the same to the Police Station through Constable Lal Singh. FIR Ext PW-5/A was registered by PW-7 Shakti Chand. IO also prepared spot map Ext PW-9/B and recorded statements of witnesses. Case property was produced before PW-10 Hari Pal Saini, the then SHO, Police Station, Sadar. Mandi, who resealed the parcel with 6 seals of ‘U’. Sample seal Ext. PW-10/A was drawn and seal impression was also taken on NCB form. Case property was deposited with PW- 3 HHC Nand Lal, who made entry in the Malkhana Register. Case property was thereafter sent to the FSL Junga. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as eleven witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court convicted the accused. Hence, this appeal. 4. Ms. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as eleven witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court convicted the accused. Hence, this appeal. 4. Ms. Anu Tuli, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Neeraj K. Sharma, Deputy Advocate General, has supported the judgment/order of conviction dated 19.3.2015. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-3 HHC Nand Lal deposed that on 11.11.2009, Inspector/ SHO Hari Pal Saini, had deposited one cloth parcel sealed with seals ‘H’ and ‘U’ at 6 places each, NCB form in triplicate, specimen of seals ‘U’ and ‘H’ alongwith other documents which were entered by him at Sr. NO. 1078 of Malkhana Register, abstract of which is Ext. PW-3/A. On 13.11.2009, he sent the case property to FSL Junga for chemical examination through HHC Prabhu Ram vide RC No. 202/09, who deposited the same with FSL Junga. 8. PW-4 Prabhu Ram, deposed that on 13.11.2009, HHC/IC Malkhana Nand Lal handed over one parcel sealed with seal impression ‘H’ at six places and seal impression ‘U’ at six places alongwith NCB form in triplicate, sample of both seals for taking to FSL Junga vide RC No. 202/09. He took the case property to FSL Junga. 9. PW-5 HC Anil Kumar deposed that on 10.11.2009, upon receiving Rukka Mark A, he had recorded FIR No. 285/09. Case file was prepared and sent to the spot through Constable Lal Singh. He admitted in his cross-examination that the Constable Lal Singh handed over Rukka to him at about 9.45 PM. 10. PW-6 HC Lalit Kumar deposed the manner in which accused was apprehended and search, sealing and seizure proceedings were completed at the spot. He deposed that the place where accused was apprehended was a secluded one so no independent witnesses were available at that time as such he and Constable Ram Dass were associated as witnesses. The bag of accused was searched. It contained Charas. It weighed 450 grams. Sealing was completed at the spot. In his cross-examination, he has admitted that the place Jagar was 3 kms from PP Pandoh. They were on patrolling. The bag of accused was searched. It contained Charas. It weighed 450 grams. Sealing was completed at the spot. In his cross-examination, he has admitted that the place Jagar was 3 kms from PP Pandoh. They were on patrolling. They reached at place Jagar at about 8.30 PM. He admitted that at Jagar there was a DAV Navodaya School. He also admitted that a petrol pump was also there and it remains open for 24 hours. He admitted that there were about 50/60 shops and houses at Jagar. People remained in these houses day and night. IO had carried out personal search at the spot. He did not remember whether they had given personal search to the accused or not. He admitted that NH-21 is a busy road and vehicles frequently plied on the same. They tried to search for independent witnesses but none was available. He was not deputed by the IO to search for independent witness. 11. PW-7 SI Shakti Chand deposed that on 10.11.2009 Rukka was received through Constable Lal Singh at Police Station, Sadar, Mandi. He handed over the same to MHC for recording the FIR. In his cross-examination, he has admitted that Rukka was received at about 1.05 PM in the Police Station. 12. PW-9 HC Jagdish Chand testified the manner in which accused was apprehended, search, seizure and sealing proceedings were completed at the spot. No independent witness was available. Rukka was prepared and sent to the Police Station through Constable Lal Singh. In his cross-examination, he has admitted that he had not called any gazetted officer to the spot prior to conducting the search of the accused. He admitted that NH-21 is a busy road and vehicles frequently passed through the road. He tried to associate independent witnesses in the search party but none was available. He has not deputed any police official to search for independent witnesses. 13. PW-10 Hari Pal Saini (retired Inspector) resealed the parcel with seal impression ‘U’ at six places. He has drawn sample seal Ext. PW-10/A over a piece of cloth. He also filled in relevant columns of NCB form Ext. PW-6/B. He affixed seal impression over NCB form Ext. PW-6/B. He handed over the case property alongwith the parcels to Incharge Malkhana HHC Nand Lal. 14. He has drawn sample seal Ext. PW-10/A over a piece of cloth. He also filled in relevant columns of NCB form Ext. PW-6/B. He affixed seal impression over NCB form Ext. PW-6/B. He handed over the case property alongwith the parcels to Incharge Malkhana HHC Nand Lal. 14. PW-6 Lalit Kumar has categorically deposed in his cross-examination that IO carried out personal search of the accused on the spot. PW-9 Jagdish Chand has admitted that he has not called any gazetted officer prior to conducting search of the accused. It was not necessary for the police to carry out personal search of the accused since contraband was recovered from the bag but, despite that personal search of the accused as per statement of PW-6 Lalit Kumar, by PW-9 Jagdish Chand was undertaken. Since personal search of the accused had been conducted, he was required to be apprised of his legal right to be searched before a gazetted officer or a Magistrate. There is no tangible evidence on record to suggest even remotely that the police has sought the consent of the accused to be searched either before a gazetted officer or a Magistrate. Thus, compliance of Section 50 of the Act, was required to be made in its letter and spirit. 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. 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. 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. 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. Accused was apprehended at Jagar. The place was merely 3 kms from police post Pandoh. There were 50-60 shops and houses at Jagar. Accused was apprehended on NH-21. It is a busy road. The time of occurrence was 8.30 PM. Police could easily join independent witnesses by associating shopkeepers or occupants of the houses situate at Jagar. PW-6 Lalit Kumar has admitted that the IO has not sent him in search of any independent witness. PW-9 Jagdish Chand has also merely stated that he has tried to search for independent witness but none was available. He has not deputed any personnel to search for the independent witnesses. 17. It is true that the statements of official witnesses can be taken into consideration if same inspire confidence and are trustworthy. However, place where accused was nabbed was neither a secluded place nor an isolated place. There were 50- 60 shops and houses at Jagar. There was a petrol pump situate nearby the spot, which remains open for 24 hours. Further the place was on NH-21, which is a busy place. 18. However, place where accused was nabbed was neither a secluded place nor an isolated place. There were 50- 60 shops and houses at Jagar. There was a petrol pump situate nearby the spot, which remains open for 24 hours. Further the place was on NH-21, which is a busy place. 18. Consequently, in view of the analysis and discussion made hereinabove, the prosecution has failed to prove the case against the accused for offences punishable under Section 20 of the Act. 19. Accordingly, the present appeal is allowed. Judgment dated 19.3.2015 rendered by the learned Special Judge, Mandi, District Mandi, Himachal Pradesh in Sessions Trial No. 03/201013 is set aside. Accused is acquitted of the offence under Section 20 of the Act. He is ordered to be released, if not required by the Police in any other case. Fine amount, if any deposited by the accused, be refunded to him. Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned, forthwith.