Roop Lal vs State of Rajasthan

N.P. Gupta, J.—This appeal arises out of the judgment of learned Addl. Sessions Judge No. 1, Chittorgarh dated 31.10.1995 whereby the learned Judge convicted the appellant for the offence u/s 8 read with 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as ''the Act'') and sentenced him to 10 years R. I. and a fine of Rs. 1 lakh, in default of payment of fine to undergo 2 years further R. I.

Brief facts of the case are that on 1.11.1993 at about 2.15 p.m. P.W. 14 Uma Kant Bhatt the then Dy. Superintendent of Police, Begun received a secret information, that one person is sitting in the waiting room at the bus stand with one Maroon colour ragajine bag containing opium. It was also learnt that the said person is waiting for his companion to arrive. This information was noted down as Memo Ex. P-12, and a copy was sent to the Superintendent of Police vide Ex. P-13 and he proceeded with requisite force to the bus stand, there he found the appellant sitting with the bag. The prosecution case further is that the name of the accused was asked, then he was given a notice in writing u/s 50 of the Act, and on his opting for being searched by the party itself, he was searched, and on the search of the bag it was found to be containing two bags tied with jute string containing black colour substance which was smelt and tasted by the party and found to be opium. On weighment each bag weighed 1 kg. Thereafter samples were extracted from each of the bag and the remainder was again duly sealed. The accused was arrested and the matter was reported to the Police Station, Begun. After completing investigation, including obtaining necessary reports from the Forensic Laboratory confirming the substance recovered to be opium, the challan was filed.

The accused denied the charges and desired to be tried. The prosecution examined in all 14 witnesses and exhibited 13 documents while the defence did not examine any witness but got exhibited 3 documents Ex. D-1, D-2 and D-3 being the alleged memo of notice u/s 50 of the NDPS Act, memo of search of the house of Bhanwarlal situated at Rampuria, and the statement of Jawan Singh recorded during investigation.

Out of the prosecution witnesses P.W.1 Shyam Singh, P.W. 2 Narayan Lal, P.W. 5 Yashwant Singh and P.W. 9 Gulam Samdani are the members of the team going to Bus Stand with P.W.14 Uma Kant Dy. S.P., and have testified the team to have reached the Bus Stand, Begun and have then testified the proceedings taken on the spot. P.W. 3 Roop Kishore is produced for the purpose of establishing the sample remaining intact, inasmuch as he received the sample, entered in Malkhana Register and delivered it to the Malkhana Incharge. He has also deposed to have sent the sample for forensic analysis with constable Jawan Singh. P.W. 4 Shanker Das is the Malkhana Incharge in whose custody the sample and the remaining opium remained intact. P.W.12 Jawan Singh has been produced as a person carrying the sample for Malkhana Incharge Shankerlal and delivered it to Forensic Laboratory, Jaipur in intact condition. P.W. 6, 7, and 8 being two Bothlals and other Unkar Lal have all turned hostile. I do not find on record as to who these two Bothlals were and for what purpose they were produced. Be that as it may. P.W.10 was produced as Motbir of Ex.P. 3 Site Inspection Note but then he has turned hostile. P.W.11 Bhojraj is a Motbir who was called as an independent witness to witness the proceedings taken at the Bus Stand. He has also testified the proceedings taken at the Bus Stand, P.W.13 Mangilal is another Motbir of the proceedings who has turned hostile and supported the prosecution when cross-examined by the learned P.P. Then P.W.14. Uma Kant Bhatt is the Dy. S.P. mentioned above who had completed all the proceedings upto submitting of the First Information Report against the accused Rooplal, along with the recovered goods.

In his statement u/s 313, CrPC the appellant denied all the allegations as false, and has taken the stand that he has been falsely implicated. He claimed to be labourer at Kashya Mines and while returning when he was standing at Bus Stand, Begun he was arrested by preparing a false case. While answering question No. 10 as to why do the prosecution witnesses depose against him, the answer given was, to be under the temptation of money and reward. Be that as it may.

The learned trial Court negatived the arguments of the accused side, placed implicit reliance on the statement of P.W.14 Uma Kant and found, that the provisions of Section 42 of the Act have been complied with, requirements of Section 50 are proved to have been complied with, by holding that since he himself was a gazetted officer, and since the accused was ready to have himself searched by Uma Kant Bhatt, it was not necessary to afford him an option to get searched by gazetted officer. And since the accused was given option to get himself examined in presence of Magistrate, where upon he conceded in writing to be searched by Uma Kant, the provisions of Section 50 are complied with. Regarding absence of signatures of Motbir on the notice u/s 50 being Ex. D-1, it was held that it is not necessary that the notice should be given in the presence of Motbirs, or to mention their names and description. The learned trial Court also relied upon the statement of P.W.1, 2, 5 and 9 being the eye witnesses, and witnesses of giving option. The learned trial Court also proceeded to hold the provisions of Section 55 to be directory and having not adversely affected the prosecution. Likewise regarding compliance of Section 57 also it was held that no evidence has been led about these provisions being complied with, but then these provisions have been held directory. It was also noticed that investigation in the case was conducted by Roop Kishore who was a person junior to Uma Kant Bhatt and his subordinate and as such it would have been better if the investigation would have been got conducted by some other senior officer. But then proceeded to hold that it has not adversely affected the trial. The learned trial Court also relied upon the linking evidence, despite the fact that the learned Judge noticed many infirmities like Ex. 6-A being the copy of the entry about sending the sample for chemical analysis as it does not contain any recital about the sample having been sent with constable Jawan Singh. Likewise learned Judge also noticed absence of same seal on Ex. P-6. However by relying upon the evidence of Roop Kishore, Shanker Das and Jawan Singh the prosecution was believed. That apart the learned Judge also believed the evidence of smelling and testing the substance, and on that basis it being opium. In the result the appellant was convicted as above.

The learned Counsel for the appellant assailing the impugned judgment, instead of raising many points, has argued with all vehemence that in this case the mandatory requirements of Section 50 of the Act have not at all been complied with, and thereby entire prosecution is bad and the appellant is entitled to be acquitted. Elaborating the argument, the learned Counsel took me through the relevant parts of the statements of P.W.1, 2, 5, 9 and 14 so also P.W.11, and the relevant parts of the memo/notice Ex. D-1, and also to Ex. P-1 being the seizure memo, for the purpose of showing the recitals inrespect of compliance of Section 50. By taking me through all these oral as well as documentary evidence the learned Counsel contended that it is not at all established on record that any option was at all given to the appellant as required by Section 50 of the Act, and the document Ex. D-1 is a mere concoction. It is also contended that even dehors the document Ex. D-1, the oral evidence that has been produced by the prosecution, is so materially discrepant that it does not establish as a fact that the appellant was at all given any option as contemplated by Section 50. learned Counsel placed reliance on Namdi Francis Nwazor Vs. Union of India (UOI) and Another, Prakash Singh v. State of Rajasthan 2001 Cri LR 147; Ahmed v. State of Gujarat 2000 Cri LR 739 , State of Punjab Vs. Baldev Singh, , Koluttumottil Razak v. State of Kerala 2000 SCC (Cri) 829, and Kalu Singh v. State of Raj. 2000 CriLR 449.

Learned P.P. on the other hand supported the impugned judgment and controverted the contention of the learned Counsel for the appellant, contending that the requirements of Section 50 have been fully complied with in the present case, and therefore, the appeal is liable to be dismissed.

I have considered the rival submissions and have gone through the record.

Before proceeding to discuss the evidence led by the prosecution on the question of compliance of Section 50 of the Act, I may better like to recapitulate on the basis of the various judgment of the Hon''ble Supreme Court, and of this Court, as to what is the requirement of Section 50, so as to find as a fact, as to whether those requirement have been complied with or not? and if it is found to have not been complied with, what is its effect?

Section 50 of the Act reads as under:

Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the Officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in Sub-section (1).

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

A reading of Section 50 shows that it has manifold requirements to be complied with viz.:

I. it is to be complied with before taking a search,

II. the empowered officer intending to taken search is bound to take the accused, without unnecessary delay:

(i) to the nearest gazetted officer of any of the departments mentioned therein

(ii) or to the nearest Magistrate,

III. If such person (accused) so requires.

There is no controversy to the extent that if the accused so requires, he is to be taken to the nearest gazetted officer prescribed, or to the nearest Magistrate, before taking the search. But then there has been a good amount of litigation and judgments on the interpretation and scope of the expression "if such person so requires" appearing in Section 50. Since in the present case also the prosecution story is that the accused agreed or opted for being ready to have himself searched by the party/P.W.14, the question precisely arises as to whether the requirements in the expression "if such person so requires" have been complied with or not? This expression came to be considered by Hon''ble the Supreme Court in State of Punjab Vs. Balbir Singh, whereby a big bunch of matters was decided by Hon''ble the Supreme Court, and therein various provisions of the Act were considered, and in that sequence the provisions of Section 50, specially the expression mentioned above" if such person so requires" was also considered thread bare. In para 17 the question was considered on the anvil as to whether, the person who is about to be searched should by himself make a request, or whether it is obligatory on the part of the empowered or authorised officer to inform such person that if he so requires he would be produced before a gazetted officer or a Magistrate, and thereafter search would be taken? and then considering the context in which this right has been conferred, it was held in para 17 as under:

....In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched before a gazetted officer or a magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language makes it obligatory on the authorised officer to inform the person to be searched of his right.

Then in para 27 Hon''ble the Supreme Court proceeded to set out their conclusion on various questions considered in the judgment, and in that process, in Sub-para (5) held as under:

On prior information the empowered officer or authorised officer while acting u/s 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory, and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

This question was then again raised and the matter came to be referred to a larger Bench of Hon''ble the Supreme Court as it was noticed that there was divergence of opinion between different. Benches of Hon''ble the Supreme Court with regard to ambit and scope of Section 50 and in particular of the admissibility of the evidence collected by Investigating officer during search and seizure conducted in violation of provisions of Section 50 of the Act, inasmuch as in State of Himachal Pradesh Vs. Shri Pirthi Chand and another, State of Punjab Vs. Labh Singh, and Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, a discordant note was struck and it was held that evidence collected in a search conducted in violation of Section 50 of the NDPS Act did not become inadmissible in evidence. The question, therefore referred to the larger Bench was as under:

One of the questions that has been raised in these appeals/special leave petitions is whether compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory and, if so, what is the effect of the breach thereof.

The matter was then listed before the Bench consisting of Hon''ble three Judges and that Hon''ble Bench found that the judgment of another three Hon''ble Judges Bench in Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, requires reconsideration and therefore, the case was considered by still larger Bench and accordingly the said Bench (Hon''ble three Judges Bench) formulated the following question:

(i) Is it the mandatory requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (''Act'' for short) that when an officer, duly authorised u/s 42 of the Act, is about to search a person he must inform him of his right under Sub-section (1) thereof of being taken to the nearest gazetted officer or nearest Magistrate for making the search?

(ii) If any search is made without informing the person of his such right would the search be illegal even if he does not of his own exercise his right u/s 50(1)? and

(iii) Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab intio?

and accordingly the matter came up before a Constitutional Bench. It is in this background that Hon''ble the Supreme Court considered the provisions of Section 50 thread bare on all envils. It is in this sequence that in para 25 it was held as under:

The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. 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 person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption u/s 54 of the Act can be raised against an accused, unless, the prosecution establishes it to the satisfaction of the Court, that the requirements of Section 50 were duly complied with.

Then in para 26 the object of the requirement of Section 50 was considered, then in para 27 the requirement to "inform" was considered on the anvail of other legislations and other previous judgments of Hon''ble the Supreme Court. Then in para 28 it was observed as under:

....Compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose - to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer.

Then in para 32 the final verdict was given as under:

....bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible - it cannot be disregarded by the prosecution except at its own peril.

Then in para 33 it was held that question whether or not the safeguard provided u/s 50 were observed would have to be determined on the basis of the evidence led at the trial, and the finding of that issue one way or the other would be relevant for recording order of conviction or acquittal. Then in para 54 it was held as under:

even if it be assumed for the sake of argument that all the material seized during an illegal search may be admissible as relevant evidence in other proceedings, the illicit drug or psychotropic substance seized in an illegal search cannot by itself be used as proof of unlawful conscious possession of the contraband by the accused. An illegal search cannot also entitle the prosecution to raise a presumption u/s 54 of the Act because presumption is an inference of fact drawn from the facts which are known as proved. A presumption u/s 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50.

Then in para 57 the conclusions arrived at by the Constitutional Bench were expressed as under:

(1) That when an empowered officer or a duly authorised 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 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search 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 his person, during a search conducted in violation of the provisions of Section 50 of the Act.

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconsciousably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.

(8) A presumption u/s 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitled the prosecution to raise a presumption u/s 54 of the Act.

(9) That the judgment in Pooran Mal case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from which the contraband has been seized during the illegal search.

(10) That the judgment in Ali Mustaffa case correctly interprets and distinguishes the judgment in Pooran Mal case and the broad observations made in Pirthi Chand case and Jasbir Singh case are not in tune with the correct exposition of law as laid down in Pooran Mal case.

This judgment in Baldev Singh''s case has obviously been consistently followed in subsequent judgments of Hon''ble the Supreme Court and of this Court in Kalu Singh v. State of Raj. 2000 CriLR 449, Prakash Singh''s case 2001 Cri LR 147 followed the judgment of Hon''ble the Supreme Court in In the Matter of: Ahmed Vs. State of Gujarat, which in turn is a judgment given on the basis of the aforesaid Constitution Bench Judgment in Baldev Singh''s case.

In this view of the established legal position, as held by Hon''ble the Supreme Court, that it is to be seen as a fact as to whether the prosecution has been able to prove by the evidence led at the trial that the safeguards provided in Section 50 have been duly observed, out of the safeguards being the empowered officer having informed to the person concerned (appellant) of his right under Sub-section (1) of Section 50 of being taken to nearest gazetted officer or the nearest Magistrate for making the search.

For the purpose of finding out above factual position, now I revert back to record. The prosecution has relied upon two sets of evidence in this regard, one being the oral evidence consisting of statements of P.W.1, 2, 5, 9 and 14 and the other being the documentary evidence comprising of Ex. D-1 and especially portion A to B with purported signature of the accused being E to F. Before proceeding to discuss both these sets of evidence, I may, even at the cost of repitition recapitulate the finding of Hon''ble the Supreme Court in Baldev Singh''s case as recorded in para 57(1) to the effect that such information to be conveyed to the accused may not necessarily be in writing.

In the present case I may first examine the question as to whether according to the prosecution the information required to be given to the accused u/s 50 of the Act is said to be relied upon as an oral information given to him or given in writing? And immediately a look at the Statement of P.W.14 Uma Kant Dy. S.P. as deposed in his examination-in-chief does show that the prosecution has come forward with a case that only written notice was given, being Ex. D-1, and written consent was obtained from the accused being A to B thereon, with signatures of the accused at E to F. Relevant part of the statement reads as under:

fQj mlus viuk uke :iyky eh.kk crk;k] eSus fQj mUgs /kkjk 50 dk fyf[kr uksfVl fn;k Fkk tks bZ ,Dl Mh 1 gS ftl ij lh ls Mh esjs gLrk{kj gS ml O;fDr us eq> ls ryk''kh fyokus ckcr viuh Lohd`r fyf[kr es nh Fkh tks , ls ch gS rFkk bZ ls ,Q ml O;fDr ds gLrk{kj gSA

Likewise P.W. 1 has also in this regard deposed as under:

---------------uke :iyky fuoklh [ksM+k [kqnZ fuEckgsM+k gksuk crk;k A fMIVh lkgc mlls dgk fd rsjs ikl vQhe gksus dh lwpuk gS ge ryk''kh ysuk pkgrs gSS] o ,d rgjhj Hkh fy[kdj nh vkSj iwNk fd ryk''kh ysuk pkgrs gSA o ,d rgjhj Hkh fy[kdj nh vkSj iwNk fd ryk''kh nsuk pkgrk gS ;k fdlh eftLV�sV lkgc rsjh ryk''kh ys rks mlus fMIVh lkgc dks ryk''kh nsus dks dgk A

Similarly P.W. 2 Narayan Lal has deposed as under:

------------------viuk uke :iyky firk ukukyky tkfr eh.kk [ksM+k [kqnZ fuEckgsM+k crk;k x;k Fkk A igys ekSf[kd es fMIVh lkgc us :iyky ls iwNk fd ges rsjs ikl vQhe dh lwpuk gS ryk''kh ysuk pkgrs fQj nQk 50 dk uksfVl fn;kA fMIVh lkgc us ;g Hkh iwNk Fkk fd rw eq>ls ryk''kh ysus es lgefr ns nh A

Then the relevant part of P.W. 5 is as under:

---------------------------eq[kfcj dk bZ''kkjk ikdj fMIVh us :iyky dks idM+k A fMIVh lkgc us :iyky dks idMus ds igys mls ,d uksfVl fn;k A :iyky ls iwNk x;k fd og viuh ryk''kh iqfyl ls djokuk pkgrk Fkk ;k fdlh eftLV�sV ls djokuk pkgrk gSA :iyky us viuh lgefr ns nh A fd iqfyl ryk''kh ys ldrh gSA

And the relevant part of statement of P.W. 9 is as under:

--------------------/keZ''kkyk es ,d vkneh cSBk gqvk Fkk mldh rjQ eq[kchj us bZ''kkjk fd;k A fQj fMIVh lkgc us ml vkneh dks dgk fd ge ryk''kh ysuk pkgrs gSA vki iqfyl dks ryk''kh nsxs ;k fdlh eftLV�sV dks ryk''kh djkuk pkgrs gks A ml vkneh us dgk fd eS vki ls gh ryk''kh fyokuk pkgrk gWwaA ml vkneh us viuk uke :iyky crk;k A

I may here refer to statement to P.W.11 Bhojraj who is the Motbir, and has not turned hostile. According to this witness he was called as a Motbir by constable Bhanwar Singh, and deposed the story from the point of asking the name of the accused by the police party. Relevant part of the statement is as under:

-------------------viuk uke :iyky crk;k fQj fMIVh lkgc us mldh ryk''kh yh rks mlds ikl jgs FkSys es ,d /kksrh] cSx o diM+s feys vkSj FkSys es nks FksSfy;k vQhe dh feyh A

Of course the other Matbir has turned hostile and has not supported the prosecution case, therefore, I do not purpose to discuss his evidence.

A bare perusal of the above evidence which is the entire oral evidence led on behalf of the prosecution does present four different sets of things:

(i) being as deposed by P.W.14 viz. that only mode of giving information to the appellant was a written notice being Ex. D-1 and obtaining consent being A to B thereon,

(ii) being the one as deposed by P.W.1, P.W. 2 and P.W. 5, being that the accused was given a notice and so also orally asked (In the moment I am not considering the precise information said to have been conveyed),

(iii) being as deposed by P.W. 9 viz. the accused was only orally asked, and

(iv) being one as appearing from the statement of P.W.11 viz. that the accused was neither orally asked, nor anything was given in writing, as neither of these things was deposed by this witness.

In this state of contradictory evidence, I am not in a position to at all rely that any oral information was conveyed to the accused, even by giving him any option to be searched by the team going to the bus stand, or by any-one-else, more particularly when this is not deposed to by the star witness P.W.14 who has led the team and who himself took the search, seized the goods, extracted the sample, arrested the accused and forwarded him to the Police Station, Begun.

In this view of the matter I am left with only the documentary evidence. Regarding Ex. D-1. First of all I would like to consider the prosecution evidence so as to find as to whether Ex. D-1 is at all a reliable document? Though P.W.14, has deposed to have given the written notice being Ex. D-1 and bearing his signatures C to D, and containing the consent of the appellant at A to B, and his signatures E to F, but the other attending circumstances as are hereinafter being considered leave no manner of doubt that no reliance can be placed on this document Ex. D-1.

P.W.1 in his cross-examination has deposed ignorance about the appellant having conveyed his consent in writing.

In this regard in the cross-examination of P.W.14 he has asserted that it is wrong to say that at the ''time of giving notice u/s 50 Motbirs were not present. Thus he asserts that Matbirs were present. In Ex. D-1 no presence of any of the Motbirs has been shown nor their signatures are there. I do not mean to say that the requirement of presence of Motbirs and their signatures is sine qua non for the reliability of the notice Ex. D-1, but in the totality of the circumstances this is being considered only as one of the circumstances in view of the fact that P.W. 14 has positively asserted the presence of Matbirs, while P.W.11 the Motbir present through out has not stated a word in his entire statement about any such notice Ex. D-1 being given. Then the witness P.W.14 has further deposed that Ex. D-1 is not in his handwriting, and has also admitted that the portion A to B in Ex. D-1 is in different handwriting and thus the entire document is in the handwriting of different person. It is in this background that I may immediately refer to the statement of P.W. 9 one of the members of the team being Gulam Samdani, who in the cross-examination has very categorically asserted that the notice of Section 50, NDPS. Act being Ex. D-1 was scribed by the Deputy Sahib (P.W.14). As against this P.W. 5 yet another member of the team has deposed that notice Ex. D-1 was scribed by constable Gujraj Singh. This constable Gajraj Singh has not been examined by the prosecution and rightly so, as if he were to be produced he would have given out yet another story.

The situation about the alleged consent of the appellant appearing on Ex. D-1 at A to B is also no better, inasmuch as P.W.14 does not depose the language A to B to be in the handwriting of the appellant and only depose in the cross-examination about it to be in different handwriting then the one being the body of the document Ex. D-1. While P.W. 5 has deposed in his cross-examination that this portion A to B was scribed by the constable Gulam Samdani. Fortunately this Gulam Samdani has been examined as P.W. 9, obviously not only after P.W. 5 but on a much later date, inasmuch as P.W. 5 was examine on 23.8.1994 while P.W. 6, 7, and 8 were examined on 7.10.1994 and this P.W. 9 was examined on 10.11.1994, and it is significant to note that this P.W. 9 Gulam Samdani in his entire statement does not at all depose this portion A to B of Ex. D-1 to be in his handwriting. Not only this, excluding the question put to P.W. 5 in his cross-examination no other witness has at all even referred to the document Ex. D-1. Thus on the face of this contradictory and infirm evidence, I do not feel it safe to find it proved that Ex. D-1 notice was given to the appellant and he gave his consent at A to B.

Thus the prosecution has clearly failed to establish that any information was given to the appellant as required by Section 50 as interpreted consistently by Hon''ble the Supreme Court in Balbir Singh''s case and as are reaffirmed in Baldev Singh''s case.

For the sake of argument, even if it were to be assumed that Ex. D-1 was given, and as attempted to be deposed by some of the witnesses mentioned above that the accused was orally told or orally also told, still in my view even that does not fulfill the requirement of Section 50.

In this regard it may be observed that all that has been mentioned in Ex. D-1 is

------------------;fn vki pkgs rks vkidh tkek ryk''kh gsrq eftLV�sV dks cqyk;s tk;s ;k muds ikl ys tkdj ryk''kh fyokbZ tk;s A

This information does not convey or inform the appellant of his right capable of being exercised about search being taken by some gazetted officer. This information also does not convey to the appellant any information as to whether the authority giving this Ex. D-1 is gazetted officer or not, inasmuch as it does not say that the authority giving notice is a gazetted officer, and therefore, the accused is entitled to opt for being searched by Magistrate, or that he is entitled to have himself searched by any gazetted officer whether including himself or excluding himself. Likewise a look at the statement of P.W.1 shows that even this witness does not depose about the appellant having been informed to give option to have himself searched by any gazetted officer, whether including or excluding P.W.14, nor was it given out to him that P.W.14 is himself a gazetted officer. On the other hand Dy. S.P. gave out that he wants to take a search, and then the written notice was given asking as to whether he wants to give the search, or to have himself searched by a Magistrate. Then P.W. 2 also deposes that the Deputy Saheb told the accused that he wants to take a search, then gave notice u/s 50, then asked him as to whether he is agreeable in search being taken by the Deputy Saheb himself or before a Magistrate. Then P.W. 5 has deposed that the accused was asked as to whether he wants to have himself searched by the police or by any gazetted officer or by any Magistrate, and thereupon the appellant consented to be searched by police. Similarly P.W. 9 has deposed that the Duty Saheb told the appellant that we want to take his search, whether the appellant would give search to the police or to a Magistrate? and thereupon the appellant is said to have answered to be desirous of being searched by him. Thus it is clear that there is no reliable evidence, rather absolutely no evidence to show that the appellant was told to be entitled to have himself searched before a gazetted officer, as admittedly he was not told that P.W.14 is a gazetted officer. That apart in view of the object behind the sacrosance of provisions of Section 50, as recognised by Hon''ble Supreme Court in the above noted cases, even if the person proceeding on the site after recording information memo u/s 42 desiring to take search is himself a gazetted officer, still, in my view it should be made clear to the accused that such officer is a gazetted officer and the accused has a right to opt for his search being taken before any other gazetted officer of any of the department mentioned in Section 42, or by a Magistrate. Otherwise merely because the person so taking a search may happen to be a gazetted officer, for certain reasons, and in certain circumstances, he might happen to be having the powers of Magistrate also, the requirement of giving information to the accused and obtaining his option cannot be rendered otios by being ignored on the ground of such empowered officer being a gazetted officer or a Magistrate. Thus the net result of the aforesaid discussion is that the prosecution has utterly failed to prove that the safeguard contained in the provisions of Section 50 were duly provided to the appellant.

Thus having found a fact that the appellant was not provided the safeguards as contained in Section 50 of the Act, now I proceed to consider as to what is the effect thereof in the present case. In Baldev Singh''s case Hon''ble the Supreme Court has held in para 57(3) that such breach may not vitiate the trial but would render the recovery of article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of illicit article recovered from his person during his search conducted in violation of Section 40 of the Act. In this view of the matter I have gone through the record of the learned trial Court. I may straightway read the charge framed against the appellant which is as under:

------------------------fnukad 1-11-1993 �lkseokj� dks nksigj 2%30 cts o dLck csxw ds cl LVS.M ij fufeZr izrh{kky; es iqfyl ny }kjk vkidh ryk''kh ysus ij vkids gkFk es ik;s x;s dRFkbZ jax ds FkSys es ls 2%00 fdyks xzke vQhe cjken gqbZ ftldh j[kus gsrq vkids ikl dksbZ vuqKk i= ;k mfpr Li"Vhdj.k ugh Fkk vkSj ,rn }kjk vkius Lokid vkS"kf/k ,oa eu% izHkkoh inkFkZ vf/kfu;e] 1985 dh /kkjk 8 lifBr /kkjk 18 ds v/khu n.M+uh; vijk/k fd;k A

Likewise a perusal of the entire evidence of the prosecution also shows that the only basis for seeking conviction of the appellant was his having in his possession illicit article said to have been recovered from his person (bag) in his hand during the search, which has been found above to be in violation of provisions of Section 50 of the Act and thus as per the ratio of Baldev Singh''s case the conviction and sentence of the appellant stand vitiated.

A contention was raised by the learned P.P. that opium was found in the bag being carried by the appellant and therefore non-compliance of provision of Section 50 does not adversely affect the search in the present case. Suffice it to say that Hon''ble the Supreme Court in Namdi Francis Nwazor Vs. Union of India (UOI) and Another, in para 3 it has been held as under:

We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act.

Following this judgment in Namidi''s case this Court in Kalu Singh v. State of Rajasthan 2000 Cri LR 449 while considering the case where accused was carrying a bag in his hand, on search whereof it was found to contain opium, held that the safeguards made available to the accused u/s 50 are applicable in cases where the person suspected is carrying handbag or other goods in his hand on search whereof contrabad substance is found and thereafter finding non-compliance of the provisions of Section 50 the accused was acquitted. Thus, in view of this judgment in Namidi Francis Nwazor''s case this contention of the learned P.P. also has no force.

The result of the above discussion is that looking to the non-compliance of the provisions of Section 50 of the Act the alleged recovery of illicit article from the appellant becomes suspect and the appellant is entitled to the benefit of this suspicion and since his conviction is sought only on the basis of the possession of illicit article said to have been recovered from his possession during search which is found to have been in violation of provisions of Section 50 of the Act, his conviction and sentence are liable to be set aside.

Accordingly the appeal is allowed, the impugned judgment is set aside and the appellant is acquitted. The appellant be released forthwith if not required in any other case.