JUDGMENT : Hon'ble Ifaqat Ali Khan,J. 1. This Criminal appeal is preferred by Smt. Pramila, wife of Gagan Dev Mahto against the judgment and order dated 19/20.09.2014 passed by Additional Session Judge, Court No. 1 Maharajganj, in Special Case No. 18 of 2011, State vs. Smt. Pramila, in Crime No. 1751 of 2010, under section 8/20/23 N.D.P.S. Act, Police Station Thuthibari, District- Maharajganj. 2. As special case no. 18 of 2011, State vs. Smt. Pramila, arising out of Crime No. 1751 of 2010 and Special Case No. 17 of 2011, State vs. Smt. Geeta Devi, arising out of Crime No. 1750 of 2010, under section 8/20/23 N.D.P.S. Act, Police Station Thuthibari, District- Maharajganj are related to the same recovery memo and the same occurrence, therefore, these both special cases were consolidated by the lower Court and are decided by the single impugned order and judgment dated 19/20.09.2014. 3. This appeal is preferred only by Smt. Pramila who is the accused in special case no. 18 of 2011, State vs. Smt. Pramila. By this impugned order and judgment dated 19/20.09.2014, appellant Smt. Pramila has been convicted in special case no. 18 of 2011, Crime no. 1751 of 2010, under section 8/20/23 N.D.P.S., Act and is punished with the rigorous imprisonment of 10 years along with the fine of Rs. 1,00,000/-. In default of the payment of fine, she is ordered to under go the additional imprisonment for one year. 4. The facts in brief of this case are as follows:- 5. On 14.12.2010 complainant/S.H.O. B.K. Singh along with S.S.I. Sri Prakash Tiwari, reached at the camp of S.S.B. and from S.S.B. camp Thuthi Bari took sub-inspector Lal Bahadur Singh Rathore, H.C., G.D., Mohanlal, constable Gupta Ramesh and lady constable Kumri Anuja with them and started the joint checking of the suspected persons passing from there. 6. At about 14 O'clock two ladies were coming from the side of Nepal and these two ladies were got searched by lady constable Kumari Anuja as per rule. In search in the bag of clothes packet of Charash were found strapped on their waist. When the name of the women were asked first lady told her name Geeta Devi, from whose possession 9 packets were found in a cloth bag strapped on her waist. Second lady told her name Pramila and 9 packets were found in a cloth bag strapped on her waist. When the name of the women were asked first lady told her name Geeta Devi, from whose possession 9 packets were found in a cloth bag strapped on her waist. Second lady told her name Pramila and 9 packets were found in a cloth bag strapped on her waist. These both ladies were asked that whether they want to get themselves searched before Magistrate/Gazetted Officer, then they stated that they don't want to appear before any other officer for search, you people have caught hold them so you do the search proceeding. 7. In presence of all police personnel the packets recovered from both ladies were weigh in seperately and it was found that each packet was having the weight of 500 gram. Thus 4.5 kg. Contraband article was recovered from the each lady. Consent memo was prepared, each packets was opened and smelled, and Charas was found in them. A small quantity of Charas was taken away from each packets separately and thus specimen contraband article was taken away and it was sealed and the rest contraband article was sealed in the cloth along with the bags in which they were recovered from two ladies. Balance was brought from the place of Ramchandra Prasad to weigh in the recovered contraband article. 8. Both the ladies were told about their offence and were taken into custody and arrest memo was prepared and it was also mentioned in the recovery memo that in compliance of Section 50 (A) Cr.P.C., the family members of the accused were informed through the head quarter. The public persons who were passing from there asked to become the witness of the occurrence but they did not prepare for it. Recovery memo was got written by S.S.I., on the dictation of the complainant. Recovery memo was read over to the police personnel and lady accused and then their signature were obtained. 9. On the basis of the said recovery memo case crime no. 1751 of 2010, under section 8/20/23 N.D.P.S., Act was registered against the appellant Pramila Devi on 14.12.2010. 10. Chik FIR Exhibit Ka-6 was registered by the constable Kalpnath Prasad and this entry was made in G.D. Gopal Sankar Bajpeyee concluded the investigation and after completing the investigation he submitted the charge-sheet under section 8/20/23 NDPS Act, in case crime no. 1751 of 2010 against accused Pramila. 11. In Special Case no. 10. Chik FIR Exhibit Ka-6 was registered by the constable Kalpnath Prasad and this entry was made in G.D. Gopal Sankar Bajpeyee concluded the investigation and after completing the investigation he submitted the charge-sheet under section 8/20/23 NDPS Act, in case crime no. 1751 of 2010 against accused Pramila. 11. In Special Case no. 18 of 2011 charge under section 8/20/23 NDPS Act was framed against accused Pramila. The charge was read over and made understood to her which she denied and demanded trial. 12. Prosecution examined PW1 Inspector, Brijesh Kumar Singh, PW2 S.I., S.S.B. Lal Bahadur Singh Rathor, PW3 S.I., Sri Prakash Tiwari, PW4 lady constable S.S.B., Kumari Anuja, PW5 retired constable Kalpnath Prasad, PW6 Ram Chandra, PW7 Inspector Crime Branch, Gopal Swaroop Bajpeyee. 13. PW1,2,3, and 4 are the witnesses of the fact. PW6 Ramchandra is the witness of this fact that the police took the balance from his shop, PW5 and PW 7 are the formal witnesses. 14. Besides oral evidence from the side of prosecution the following documentary evidence is also produced which are recovery memo Exhibit Ka-1. Search consent memo Exhibit Ka-2. Exhibit Ka-5 is the arrest memo, regarding the information to the family members of the accused about the arrest is Exhibit Ka-4. Chik report is Exhibit Ka-6, G.D. Exhibit Ka-7. Site plan is Exhibit Ka-8. Charge-Sheet Exhibit Ka-10. Forensic Lab Report is Exhibit 19-Ka. 17. After concluding the evidence of prosecution the statement of accused Pramila was recorded under section 313 of Criminal Procedure Code. In which she denied the occurrence and stated that false case is registered against her. Investigation and Forensic Lab Report are false. Alleged contraband article was not weighed, she is falsely implicated in this case due to enmity. She is a poor lady, she has no agriculture land. She has four children and she is a labourer. 18. After having considered the entire evidence on the record the lower Court has held the accused-appellant Pramila guilty under section 8/20/23 of NDPS Act, and awarded punishment of 10 years rigorous imprisonment along with the fine of Rs. 1,00,000/- in default of payment of fine she was to suffer additional imprisonment for one year. 19. This appeal is preferred on the ground that the impugned order and judgement dated 19/20.09.2014 is passed against fact and law and the provisions of section 50 (i) NDPS, Act are not complied with. 20. 1,00,000/- in default of payment of fine she was to suffer additional imprisonment for one year. 19. This appeal is preferred on the ground that the impugned order and judgement dated 19/20.09.2014 is passed against fact and law and the provisions of section 50 (i) NDPS, Act are not complied with. 20. Heard Amicus Curiae Sri Girish Chandra Upadhyay and learned A.G.A., for the State. 21. Learned Amicus Curiae did not raise any objection regarding the findings of fact in the impugned order and judgement. He raised only two objections against the impugned judgment. 21. Firstly, he argued that as per prosecution case the search of accused-appellant Pramila was done by constable Kumari Anuja, who was not empowered to make search of Pramila as the section 42 of the Narcotic Drugs and Psychotropic Substance Act 1980, provides that the constable is not empowered to make the search of suspected person. 22. In my opinion, appellant is not going to be benefited by this argument of the learned counsel for the appellant because the perusal of recovery memo reveals that the Police party was headed by S.H.O., B. K. Singh and lady constable Kumari Anuja was only one of its member. It is very much clear in the recovery memo that accused-appellant Pramila and co-accused Geeta Devi were ladies. Considering their modesty they were got searched through lady constable Kumari Anuja by complainant B. K. Singh S.H.O., which makes it very much clear that Kumari Anuja searched Pramila under the direction and supervision of S.H.O., B.K. Singh. Lady constable Kumari Anuja did not search accused-appellant Pramila at her own. Section 50 clause (4) of the NDPS Act also provides that no female shall be searched by any one excepting of female. Thus, in this case it shall be treated that Pramila was got searched by empowered authority S.H.O., B. K. Singh, through Kumari Anuja. 23. Secondly, the learned Amicus Curiae submitted that in this case the police party has not complied with the provisions of section 50(1) of NDPS, Act. After the alleged recovery of charas from accused-appellant Pramila, she was merely told for getting herself searched before a Magistrate/Gazetted Officers, she was not told that it is her right under section 50 (1) NDPS Act to get searched in presence of Magistrate or Gazetted Officer. 24. After the alleged recovery of charas from accused-appellant Pramila, she was merely told for getting herself searched before a Magistrate/Gazetted Officers, she was not told that it is her right under section 50 (1) NDPS Act to get searched in presence of Magistrate or Gazetted Officer. 24. In support of this argument learned Amicus Curiae, placed reliance on the ruling of Hon'ble Supreme Court (K. Mohanan vs. State of Kerela 1999 Law Suits (SC) 1178). In this ruling Hon'ble Supreme Court has held that "when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50. If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a magistrate it cannot be treated as communicating to him that he had a right under law to be searched so." 25. Learned Amicus Curiae also place reliance on the ruling Vijay Singh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 in this ruling Hon'ble Supreme Court has held that the "provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act." 26. Learned Amicus Curiae in this regard also cited the ruling State of Punjab vs. Baldev Singh (1999) 6 SCC 172 in this ruling Hon'ble Supreme Court has held that "There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate." 27. Learned A.G.A., submitted that in the present case there was no prior information to the police about this offence and in the normal search contraband substance charas was recovered from the appellant. Where there is not prior information to the empowered officer as contemplated by under section 42 of the Act and the contraband article is recovered from the accused in the normal and routine course of investigation then section 50 would not come in to play. 28. Learned A.G.A., placed the reliance on the full Bench Supreme Court decision in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 in which Hon'ble Supreme Court has held that "on its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. 28. Learned A.G.A., placed the reliance on the full Bench Supreme Court decision in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 in which Hon'ble Supreme Court has held that "on its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. The provisions of Sections 100 and 165 Cr.P.C., are not inconsistent with the provisions of the NDPS act and are applicable for affecting search, seizure or arrest under the NDPS act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is contemplated at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise." 29. In Majar Singh vs. State of U.P., Criminal Appeal No. 1377 of 1995 decided on 05.08.2004, Allahabad High Court, has also held that if in routine and normal checking all of sudden contraband substance is recovered then the provisions of section 50 (1) of NDPS Act does not apply. 30. In Majar Singh vs. State of U.P., Criminal Appeal No. 1377 of 1995 decided on 05.08.2004, Allahabad High Court, has also held that if in routine and normal checking all of sudden contraband substance is recovered then the provisions of section 50 (1) of NDPS Act does not apply. 30. On the basis of above discussion it is very much clear that the compliance of Section 50 (1) NDPS, Act is necessary only when there was the prior information of suspected person to the empowered officer and where in the routine and normal checking contraband substance is recovered then the compliance of Section 50 (1) NDPS Act is not necessary. In this present case contraband article is recovered from the possession of appellant in routine and normal checking and not on prior information. 31. Thus, in my opinion, in the present case the compliance of section 50 (1) of NDPS Act is not required. 32. On the arrest of the appellant, its information is immediately sent to the higher officer by the complainant and has also written for providing the information about the arrest of the accused-appellant to her family members. 33. The facts of the recovery are very well proved by PW1 Brijesh Kumar Singh, PW2 Lal Bahadur Singh Rathor, PW3 Prakash Tiwari. PW4 Kumari Anuja. They have also proved this fact that on 14.12.2010 at 14 O'clock at the barrier in front of S.S.B. camp within the village Thuthibari, 4.5 kg Charas was recovered from the accused-appellant Pramila. PW6 Ram Chandra has proved that to weigh the contraband substance balance was taken from his shop by the police. PW5 has proved the FIR and the G.D., PW7 has proved the investigation and the charge-sheet. Forensic Science Lab report 19-Ka proved that the recovered contraband articles from Pramila was Charas. 34. On the basis of above discussion, I come to this conclusion that there is no illegality or irregularity in the impugned order and judgment dated 19/20/.09.2014 passed by additional Session Judge, Court No. 1, Maharajganj in Special Case No. 18 of 2011 State vs. Smt. Pramila in Crime No. 1751 of 2010, under Section 8/20/2 NDPS Act, Police Station- Thuthi Bari, District- Maharajganj and the appeal is liable to be dismissed. 35. 35. Appeal is dismissed, judgment and order dated 19/20.09.2014 passed in Special Case No. 18 of 2011 State vs. Pramila arising out of Crime No. 1751 of 2010, under section 8/20/23 NDPS Act, Police Station- Thathibari, District- Maharajganj is confirmed. 36. The case property shall be destroyed after the expiry of period of appeal, if no appeal is preferred or if the law permits otherwise. 37. Let the lower Court record be returned forthwith along with a copy of the judgment of this appeal for compliance. 38. Learned Amicus Curiae, Sri Girish Chandra Upadhyaya, shall be paid an amount of rupees 7,500/- for assisting this Court in disposing of this appeal.