Sharma, J.
1. These two appeals are directed against the judgment and order dated 9.4.1999 passed by the Special Judge, NDPS Cases, Jhalawar, by which he has convicted the accused appellants under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short 'the Act') and sentenced each of them to undergo rigorous imprisonment for 10 years with a fine of Rs. 10,0000/- each, in default thereof, to further undergo 1 year's rigorous imprisonment.
2. The prosecution casein nut shell is, that on 24.4.97 Shri Chawand Singh, SHO, Police Station Manohar Thana, Jhalawar received telephonic information, Ex.P.23 to the effect that two persons would be carrying opium below the seat of a motor cycle bearing No.MP 087 A 1011. He reduced the information to writing in Rojnamcha at serial No. 767, Ex.P.25. Thereafter, Shri Chawand Singh alongwith police parly rushed to Semali Hat Jod, Aatn Road, Manohar-,thana, Beenaganj. At 8.00 PM, a motor cycle came from the side of Manohar Thana, which he made to stop by hand signal and on checking the number, it was found to be Rajdoot motor cycle bearing No.MP 08/ A-1011. The driver disclosed his name as Majid Khan and the person sitting at the back seat of the motor cycle disclosed his name as Bhikam Singh. Thereafter, the SHO informed the accused in writing through notice, Ex.P.13 and Ex.P.14 to have their search and the search of their vehicle conducted under the provisions of the Act. The accused gave their consent in writing to have their search conducted by the SHO himself. On personal search of the accused, nothing objectionable could be found from them, however, on search of their vehicle, a 'Potali1 tied in a cloth was found from the tool-box of the motor cycle. On opening the 'potali', opium was found in a polythene bag. On asking for licence, the accused showed their inability to have any licence. He then prepared search and seizure memo Ex.P.2. On weighing, it was found to be 900 grams along with packing. The SHO then took samples of opium each weighing 50 grams and sealed the samples. He also sealed the remaining opium. He arrested the accused persons vide arrest memos Ex.P.19 & P.20, prepared site plan Ex.P.l.
3. After completion of above formalities, a case was registered vide FIR No.74/97, Ex.P.21 for offence under Section8/18 of the NDPS Act. During investigation, the police recorded statement of witnesses Under Section161 Cr.P.C. and sent the samples to the Forensic Science Laboratory for chemical examination. On chemical examination, the sample contained in packet marked A1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 6.18% morphine. After completion of investigation, the police submitted a charge sheet in the court of learned Special Judge, NDPS Cases, Jhalawar.
4. The learned trial Judge, on the basis of material on record and after hearing the arguments of counsel for the parties framed charge against the accused under Section 8/18 of the Act, to which the accused denied and claimed to be tried.
5. During trial, the prosecution in support of its case, examined as many as 11 witnesses and exhibited various documents. Thereafter the accused were examined under Section 313 Cr.P.C. They did not examine any witness in their defence.
6. The trial of the case resulted into conviction and sentence of the accused appellants as aforesaid. Hence the present appeal.
7. I have heard Mr.Bin Singh, learned counsel for the accused appellants and Mr.Madhav Mitra, learned Public Prosecutor and carefully perused the judgment under appeal and examined the record of the case.
8. The first contention raised by the counsel for the accused appellants is that there was only partial compliance of the provisions of Section 50 of the Act. He submitted that a perusal of notice Ex.P. 13 and Ex. P.14 would make it clear that the SHO made aware accused of their legal right to have their search conducted, gave them option to have their search conducted either by SHO himself or by any Magistrate or by any Gazetted Officer of the Police Department. He submitted that under the provisions of Section 50 of the Act, the SHO was required to take the accused persons to the nearest Gazetted Officer of the departments or the nearest Magistrate. By not disclosing so, the valuable right of the accused appellants has been taken away thereby causing serious prejudice to them.
9. On the other hand, learned Public Prosecutor has contended that in the facts and circumstances of the case, the SHO PW 11 Chawand Singh was not at all required to act under the provisions of Section 50 of the Act as it was not a case of search of a person land that recovery of contraband was made from the tool box of a motor cycle.
10. I have considered the rival submissions of the learned counsel for the parties. Suffice it to say that there was no question of complying with the conditions stipulated in Section 50 of the Act as no search of the person was conducted in this case. The search conducted was of the conveyance and the mere that fact that the accused appellant Majid Khan was then driving the vehicle and another accused was sitting on the back seat of the vehicle, would not make it a search of their persons. Thus, in my opinion, the conditions stipulated in See. 50 of the Act are not applicable to the facts and circumstances of the present case.
11. In Abdul Rashid Ibhrahim Mansuri v. State of Gujral, (2000) 2 SCC 513, 2000(1) Crimes 198 (SC) , their Lordships of the Supreme Court while dealing with exactly identical case involving similar facts like the facts of the present case, have observed that the place where the gunny bags were found stacked in the vehicle was not inextricably connected with the person of the appellant. Hence it is an idle exercise in this case, on the fact-situation, to consider whether there was non compliance with the conditions stipulated in Section 50 of the Act.
12. The question as to the applicability of the provisions of Section 50 of the Act again came to be decided by the Apex Court in Kalemba Tumba'vs. State of Ma-harashtra and Another , (1998) 8 SCC 257. Their lordships relying upon the land mark decision of the Supreme Court in Stale of Punjab v. Baldev Singh, (1999) 6 SCC 172 rejected the contention raised on behalf of the accused on the ground that only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence a Gazetted officer or a Magistrate. The Hon'ble Court held that search of baggage of a person is not the same thing as search of the person himself. The relevant observations in para 4 of the judgment are reproduced below:-
'In State of Punjab v. Baldev Singh this court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh wherein, it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a gazetted officer or a magistrate, now stands overruled by the decision in Baldev singh case. If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it,, it cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore, it was not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate'.
13. Again in the case of Sarju Das and Anr. v. State of Gujarat, (1999) 8 SCC 508, their lordships of the Supreme Court held as under:-
'We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh'.
14. The next important contention raised by Mr.Biri Singh, learned counsel for the accused appellants was that there was noncompljance of the requirements of Section 42 of the Act, which was sufficient to vitiate the search.
15. The admitted fact of the instant case are that PW 11 Chawand Singh, SHO received secret information Ex. P.23 that somebody would be carrying a narcotic substance on a Rajdoot Motor-Cycle, he reduced this information to writing in 'Ro-jnamcha', Ex. P.25, proceeded to the spot, searched the conveyance, on search of conveyance, opium weighing 900 grams was found from the tool box of the conveyance (motor-cycle) and then completed rest of the required formalities. In the above fact situation, the question that falls to my consideration is whether the provisions of Section 42 or Section 43 of the Act are applicable?
16. Before deciding the question, it would be.profitable to understand the word 'conveyance'. The word 'conveyance' has been defined in Sub-section (viii) of Section 2, which reads as under:
2(viii) 'Conveyance' means a conveyance of any description whatsoever and includes any aircraft, vehicle of vessel.
17. A perusal of the above definition 'conveyance' makes it clear that it includes a motor-cycle as well. Section 42 of the Act applies where search of a building, conveyance or enclosed place is taken by any such officer described under Sub-section (1) of Section 42 of the Act on prior information. Section 43 of the Act comes into play in case of seizure and arrest in public places by any officer of the departments mentioned in Section 42 of the Act. The Explanation to Section 43 of the Act provides that 'for the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop or other place intended for use by, or accessible to the public.
18. Thus, the provisions of Section 43 are applicable only in those cases where any narcotic drug or psychotropic substance in respect, of which the officer making search and seizure has reason to believe that an offence punishable under Chapter IV has been committed is seized from any public place, which includes 'Public conveyance'. In the present case, the recovery of narcotic substance was made from the tool box of a motor cycle, which was in the exclusive ownership of the accused appellant Majid Khan which cannot be considered to be a public conveyance. Therefore, the provisions of Section 43 of the Act are not applicable to the facts and circumstances of the present case and the trial court has seriously erred in making applicable the provisions of Section 43 instead Section 42 of the Act,
19. In Abdul Rashid Ibrahim Mansuri v. State of Gujrat (supra) their lordships of the Supreme Court while dealing with a case involving similar facts and circumstances as that of the present case have observed as under :-
'In this case PW.2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport a narcotic substance. When he was asked in cross-examination whether he had taken down the information in writing he had answered in the negative. Nor did he even apprise his superior officer of any such information either then or later, much less sending a copy of the information to the superior officer, HoweVer, learned counsel for the respondent State of Gujarat contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information. We are unable to appreciate the argument because, in this case, PW.2 admitted that he proceeded on getting prior information from a Constable and the information was precisely one falling within the purview of Section 42(1) of the Act. Hence, PW.2 cannot wriggle out of the conditions stipulated in the said sub-section. We, therefore, unhesitatingly hold that there was non-compliance with Section 42 of the Act'.
20. Now, the only question remains to be considered is whether the prosecution has been able to prove beyond reasonable doubt that there was compliance of the provisions of Section 42 of the Act. Under the provisions of Section 42 of the NDPS Act, it is imperative that the Information must be taken down in writing and a copy thereof must be sent to the immediate official superior and failure to comply with these conditions would render the action of searching officer suspect.
21. Section 42 of the Act has been held to be mandatory by the Apex Court in series of cases. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872 their Lordships of the Supreme Court have observed that under sec. 42(2) of the such such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total nor compliance of this provision, the same affects the prosecution case. To that extent it is mandatory.
22. Again in Abdul Rashid Ibrahim Mansuri v. State of Gujrat (supra), the Apex Court considering Balbir Singh's case and a decision of the Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh (supra) has observed as under:
'If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, through the trial may not vitiate on that score alone. None the less, the resultant position would be one of causing prejudice to the accused.'
23. In the present case, PW 11 Chawand Singh, SHO received information Ex.P. 23 to the effect that two persons would be carrying opium in a motor cycle from Manohar-thana to Beenaganj. He reduced this information to writing in Rojnamcha, Ex.P.25 as required under sub Section (1) of Section 42 of the Act. A perusal of Ex.P.23 shows that information was transmitted to the higher officers on VHP. In his examination in chief, PW 11 Chawand Singh has stated that he noted down the information, which is Ex.P.23. He sent the information to the Superintendent of Police, vide letter dated 24.4.1997, Ex.P. 24. A perusal of letter dated 24.4.97, Ex.P.24 shows that through this letter the SHO PW.l 1 Chawand Singh has informed the Superintendent of Police of the action taken by him including seizure of opium and arrest of the accused. Ex.P.25, a copy of Rojnamcha shows that since the office of the Deputy Superintendent of Police (C.O.) was at a distance of 38 Kms. and the office of the Superintendent of Police is situated at Jhalawar, the SHO did not consider it proper to inform both these official superior. However, Ex.P. 25 shows that officers wore informed on VHP. True it is that the information received from the informer was reduced to writing as required under sec. 42(1), but there is nothing on record to show that the a copy of the information was at all sent by PW 11 Chawand Singh to his official superior.
24. His a mandate of Section 42 of the Act that an officer referred to in sub Section (1) thereof is required to take down in writing the information given by any person about narcotic drug or psychotropic substance being kept or concealed. The other requirement of law is that the officer who takes down the information in writing or records grounds for his belief shall forthwith send a copy (Hereof to his immediate official superior under the provisions of sub Section (2) of Section 42 if the Act.
25. In view of the above, I have no hesitation in holding that there was non compliance of the provisions of Section 42(2) of the Act inasmuch as the the prosecution has failed to establish that a copy of the information was sent by PW 11 Chawand Singh to his official superior. That apart, there is no evidence except ihe evidence of PW 11 Chawand Singh as to the search conducted by him. As his evidence is required to be approached with suspicion due to violation of Section 42 of the Act, this court may require corroboration from independent sources, but that is lacking in the instant case. Therefore, 1 am of the considered view that in the light of non-compliance of the provisions of Section 42(2) of the Act, it is difficult to sustain the conviction and sentence of the accused appellants.
26. In the result, I allow these appeals and set aside the conviction and sentence passed on the appellants as per the impugned judgment. I direct the appellants to be set at liberty forthwith unless they are required in any other case.