JUDGMENT : Rajiv Sharma, J. The instant appeal is instituted against Judgment dated 1.10.2015 rendered by the learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP) in S.T. No. 324/2013, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 15 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 ten years and to pay a fine of Rs.1.00 Lakh, and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years for the commission of offence under Section 15 of the Act. Period of detention has been ordered to be set off as per Section 428 of the Code of Criminal Procedure. 2. Prosecution case, in a nutshell, is that on 7.6.2013 at about 2.00 AM, police party headed by Inspector/ SHO Balbir Singh was on patrolling at Kandrori alongwith SI Chain Singh, ASI Prem Singh, ASI Prem Kumar, HC Mohinder Singh, HC Inderjeet, HHC Santosh Kumar, Constable Purshotam Singh, Constable Surinder Singh and HHC Jaswant Singh, in the official vehicle. A secret information was received that the accused was carrying a huge quantity of poppy straw in a Swift Dzire Car No. PB-07AG-4949. Rukka was sent to the Police Station through HC Jaswant Singh for the registration of the case. Information under Section 42 (1)(2) of the Act was sent to the SDPO Nurpur through Constable Purshotam Singh. Independent witnesses Jagmohan and Rakesh were associated. At 4 PM, aforesaid Swift Dzire Car was intercepted on Naka near old Kangra Stone Crusher, Damtal. Accused tried to run away. He was chased and apprehended. On checking the car, 90 polythene bags and two gunny bags of poppy straw were found in the car and three gunny bags of poppy straw were found in the dickey of the car, all containing 131.6 kg of poppy straw/husk. The contraband so recovered was sealed in 11 gunny bags with seal impression ‘H’. After obtaining specimen seal impression on a separate piece of cloth, the seal was handed over to witness Rakesh Kumar. Contraband was taken into possession alongwith car vide a separate seizure memo in the presence of witnesses. NCB form was filled in. IO prepared site plan. He recorded the statements of the witnesses. After obtaining specimen seal impression on a separate piece of cloth, the seal was handed over to witness Rakesh Kumar. Contraband was taken into possession alongwith car vide a separate seizure memo in the presence of witnesses. NCB form was filled in. IO prepared site plan. He recorded the statements of the witnesses. Contraband was sent to the FSL Junga for chemical analysis. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as fifteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the case of the prosecution. He was convicted by the learned trial Court as noticed above. Hence, this appeal. 4. Mr. N.S. Chandel, Advocate, has vehemently argued that the prosecution has failed to prove case against the accused. 5. Mr. M.A. Khan, Additional Advocate General, has supported Judgment dated 1.10.2015 6. We have heard the learned counsel for the appellant and also gone through the record carefully. 7. Jagmohan (PW-1) is an independent witness. He was doing the business of stone crusher supplier. He was Ward Panch of Gram Panchayat Sirat. He did not remember the date of occurrence but he was called by the police at 9 AM at Damtal Police Chowki. He saw 5-6 bags containing poppy husk in the police post. Police obtained his signatures in the police post. He did not know from whom the poppy husk was recovered. His statement was not recorded by the police. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that he was called alongwith Rakesh Kumar Pradhan, Gram Panchayat, Sirat by the police on 7.6.2013 at 3 AM on the spot. He denied that the police placed a Naka and having the information of the accused regarding the contraband in the car of accused bearing registration NO. PB-07AG-4949. He denied that said car was coming from Mukerian towards Pathankot. He denied that the Naka party gave signal to the accused to stop the vehicle and thereafter accused ran away with his car towards Kangra stone crusher Damtal. He also denied that accused was apprehended. He denied that accused was asked regarding his personal search by the police. He denied that bags of poppy husk and poppy straw were recovered from the accused in his presence and Rakesh Kumar’s presence. He also denied that accused was apprehended. He denied that accused was asked regarding his personal search by the police. He denied that bags of poppy husk and poppy straw were recovered from the accused in his presence and Rakesh Kumar’s presence. He denied that the electronic scale was brought by the police on the spot and weighed the contraband on the spot. He denied that police prepared the consent memo of accused Ext. PW-1/A in his presence. He denied that raiding party gave their personal search to the accused in his presence. However, he has admitted his signatures on Ext. PW-1/A, Ext. PW-1/B, Ext PW-1/C and Ext PW-1/D. He denied that memo Ext. PW- 1/C regarding poppy husk and poppy straw was prepared in his presence on the spot. However, he admitted his signatures on the same. He denied that NCB-I form was prepared in his presence by the police on the spot. He has denied that the sampling proceedings have taken place in his presence. 8. Rakesh Kumar (PW-2) was the Pradhan of the Gram Panchayat, Sirat. He did not remember the date of offence but he was called by the police at 9/9.30 AM at Damtal Police Chowki. He saw 4-5 bags of poppy husk in the police post, the police took his signatures on the papers in the police post. He did not know from whom the poppy husk was recovered. His statement was not recorded by the police. He was also declared hostile and cross-examined by the learned Public Prosecutor at length. He denied that Naka was laid by the police and it had the information of accused carrying contraband in his car. He denied that the car was going from Mukerian to Pathankot. He denied that bags of poppy husk and poppy straw were recovered in his presence and Jagmohan’s presence from the accused. He denied that the police party prepared memo Ext. PW-1/A. He admitted his signatures on Ext. PW-1/A, Ext. PW- 1/B, Ext PW-1/C and Ext PW-1/D. He denied that NCB-I form was prepared in his presence by the police at the spot. He denied that the IO took samples on the spot and samples alongwith case property were sealed with seal ‘H’, in his presence. 9. PW-1/A. He admitted his signatures on Ext. PW-1/A, Ext. PW- 1/B, Ext PW-1/C and Ext PW-1/D. He denied that NCB-I form was prepared in his presence by the police at the spot. He denied that the IO took samples on the spot and samples alongwith case property were sealed with seal ‘H’, in his presence. 9. HHC Jaswant Singh (PW-3) deposed that on 7.6.2013, at 2 AM, he went to the Naka party at Kandrori alongwith SHO, PS Indora and other police officials. Naka party was present at Kandrori. It received an information that the accused was coming in a car bearing No. PB-07AG-4949 with the contraband in a huge quantity in the shape of poppy husk and poppy straw. IO prepared Rukka Ext. PW-3/A and gave it to him to deliver to the MHC, Police Station, Indora for registration of FIR. On the basis of Rukka, FIR Ext. PW-3/B was registered. 10. HHC Purshotam Singh (PW-4) deposed that IO prepared information report under Section 42 of the Act, Ext. PW-4/A to be delivered in the office of SDPO Nurpur. He carried the same to the office of SDPO Nurpur. 11. Constable Sunil Kumar (PW-5) deposed that on 7.6.2013, at 2.50 AM, he was directed by the IO to call local witnesses namely Rakesh Kumar and Jagmohan Singh to be associated in the Naka party. He informed the witnesses. IO was having information of the contraband being carried in car No. PB-07AG-4949. Contraband was recovered from the accused. 12. HC Chain Singh (PW-6) deposed that on 7.6.2013, IO deposited six bags of poppy husk marked B-1 to B-6 containing 90 kgs. Each bag was containing 15 polythene bags. Each polythene bag was containing 1 kg. Each bag was sealed with one seal ‘H’ and four other bags were of polythene and one bag containing poppy straw marked as A-1 to A-5. Total weight of the poppy husk and poppy straw was 131.6 kg. These were deposited with him alongwith NCB form and the seal of the IO. On 9.6.2013, eleven bags of poppy husk and poppy straw were sent to FSL Junga vide RC No. 47/21 through Constable Rattan Chand. On the basis of Rukka, he registered FIR Ext. PW-3/B. 13. Constable Rattan Chand (PW-7) has carried the contraband to FSL Junga on 10.6.2013. 14. On 9.6.2013, eleven bags of poppy husk and poppy straw were sent to FSL Junga vide RC No. 47/21 through Constable Rattan Chand. On the basis of Rukka, he registered FIR Ext. PW-3/B. 13. Constable Rattan Chand (PW-7) has carried the contraband to FSL Junga on 10.6.2013. 14. HC Ashok Kumar (PW-10) deposed that on 7.6.2013 at 6.30 AM, information report of the case Ext. PW-4/A was received in the office of SDPO Nurpur through constable Purshotam Singh, Police Station, Indora. 15. Vikram Singh (PW-11) deposed that he was the owner of Swift Dzire car bearing No. PB-07AG-4949. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted in his cross-examination that accused had demanded his car. He also admitted that he received telephone of Ajay Kumar at 6/7 AM from village Channi. 16. HC Inderjeet Singh (PW-12) testified the manner in which vehicle was intercepted. IO had sent Rukka Ext. PE-3/A through HHC Jaswant Singh to the Police Station for the purpose of registration of FIR. IO had also prepared and sent information under Section 42 (2) through Constable Purshotam Singh to the SDPO Nurpur vide Ext. PW-4/A. Accused was apprised of his right to be searched before a Gazetted Officer or a Magistrate. Accused gave his search to the police party. Contraband was recovered from the car. It was weighed. Sampling proceedings were completed at the spot. In his cross-examination, he deposed that sampling process of eleven bags was completed near about 5.30 AM. He admitted that the road was busy one. IO had written the statements of witnesses and other memos while sitting inside the car of accused. 17. Inspector Balbir Chand (PW-15) also testified the manner in which accused was apprehended. Search, seizure and sampling proceedings were completed at the spot. He prepared information under the Act vide Ext. PW-4/A. he also prepared Rukka. It was sent through Constable Jaswant Singh to the Police Station for the purpose of registration of FIR. FIR No. 115/2013 dated 7.6.2013 Ext. PW-3/B was registered. They have procured Rakesh Kumar Pradhan and Jagmohan Ward Member as independent witnesses. Accused was apprised of his right to be searched before a Magistrate or a Gazetted Officer. Accused gave search to the police party. In his cross-examination, he admitted that he has not mentioned the time on information Ext. FIR No. 115/2013 dated 7.6.2013 Ext. PW-3/B was registered. They have procured Rakesh Kumar Pradhan and Jagmohan Ward Member as independent witnesses. Accused was apprised of his right to be searched before a Magistrate or a Gazetted Officer. Accused gave search to the police party. In his cross-examination, he admitted that he has not mentioned the time on information Ext. PW-4/A. He also admitted that he had also not mentioned time on document Ext. PW-1/B. He also admitted that there was a marriage palace known as Daizy at some distance from the spot towards Damtal. He admitted that there were two petrol pumps situate just opposite to the spot at a distance of 200 metres from the spot. He admitted that he did not try to associate witnesses from marriage palace and petrol pumps. He had also not mentioned time on Ext. PW-1/C. 18. Case of the prosecution has not been supported by PW-1 Jagmohan and PW-2 Rakesh Kumar. They have denied that car was going from Mukerian towards Pathankot. They denied that Naka was laid and contraband was recovered in their presence. They also denied that NCB form was prepared in their presence. They have denied that sealing proceedings were conducted in their presence. However, they have admitted their signatures on Exts. PW-1/A, PW-1/B, PW-1/C and PW-1/D. Daizy marriage palace was at some distance from the spot towards Damtal as per the statement of Balbir Chand (PW-15). Two petrol pumps were situate just opposite to the spot at a distance of 200 metres. He has not associated witnesses from the marriage palace and petrol pumps. Independent witnesses Jagmohan (PW-1) and Rakesh Kumar (PW-2) have not supported the case of the prosecution. Balbir Chand (PW-15) has not mentioned time on Exts. PW-4/A, PW-1/A and 1/C. Contraband was recovered from the vehicle. The accused was also apprised of his legal right to be searched before a Magistrate or a Gazetted Officer as well as in the present of the police officials present on the spot vide Ext. PW-1/A. It was not necessary for the police to conduct personal search of the accused since contraband was recovered from the vehicle but despite that personal search was undertaken in breach of the mandatory section 50 of the Act. Police was required to apprise the accused that he had a legal right to give search before a Magistrate or a Gazetted Officer. Police was required to apprise the accused that he had a legal right to give search before a Magistrate or a Gazetted Officer. There is no provision of third option under Section 50 of the Act. However, in this case, as noticed above, IO has given option to the accused to be searched before police officials also. 19. 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.” 20. In the case of Dilip and another vrs. 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.” 20. In the case of Dilip and another vrs. State of M.P., reported in (2007) 1 SCC 450 , their lordships of the Hon’ble Supreme Court have held that 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 to comply with the said provisions. It has been held as follows: “12. Before seizure of the contraband from the scooter, personal search of Appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with. 16. In this 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 persons of the appellants were also searched, it was obligatory on the part of P.W.10 to comply with the said provisions. It was not done.” 21. Prosecution has also not joined independent witnesses though available from Daizy marriage palace or petrol pumps. Place where accused was apprehended was a busy road. Police could easily associate the drivers or the occupants of the vehicles as independent witnesses in the case. Prosecution has failed to prove its case against accused under Section 15 of the Act. 22. In view of the discussion and analysis made hereinabove, the present appeal is allowed. Judgment dated 1.10.2015 rendered by the learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP) in S.T. No. 324/2013 is set aside. Accused is acquitted of the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985. He is ordered to be released immediately, if not required in any other case. Fine amount, if any paid by him, be also refunded to him. 23. Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned, forthwith. All pending applications, in both the appeals, also stand disposed of.