Sharma, J.
1. This appeal is directed against the judgment dated 27.10.99 passed by the Special Judge NDPS Act Cases and Sessions Judge, Dholpur, by which he has convicted accused appellant Ram Bharosi for offence Under Section 8/18 and 8/20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and sentenced him to undergo ten years rigorous imprisonment on each count and to pay of fine of Rs. one lac each, in default of payment of fine, to further undergo two years rigorous imprisonment each.
2. The prosecution story unfolded during trial was that on 15.8.98 PW. 11 Sarad Choudhary, Dy. Superintendent of Police, Dhotpur received telephonic information from the S.H.O., Police Station, Kotwali that one Ram Bharosi by caste Goswami, R/o Donari is taking with him opium and Charas on a Rajdoot motor cycle, having no registration number on it, for the purposes of selling the same to a drugs' contractor, which he recorded in Ex.P-17 and telephonically informed the Superintendent of Police. He also informed him in writing vide Ex.P-18. Thereafter, he left for the Police Station, Kotwali along with Head Constable Jal Singh and two Constables Balvinder Singh and Hari Singh, where he discussed with Shri Jagan Lal Meena, SHO about the said information and having found the information trustworthy he along with police party proceeded to Bhamlipura Tirana in a Government Gypsy. He found one person sitting on Rajdoot Motor-cycle having no registration number on it and busy in talking with some other person, who on seeking the police, managed to escape from there, but he caught hold of the person sitting on the motor-cycle. He disclosed his identify that he is Dy.S.P. Sharad Chaudhary, CO., Dholpur and is a Gazetted Officer. Thereafter, he asked the accused vide notice Ex.P.20 as to whether he wants to get the search conducted by the Dy. S.P. himself who is a Gazetted Officer or by a Magistrate or in presence of a Magistrate. The accused consented in writing that he (Dy. S.P.) himself may lake search in the absence of Magistrate. Thereafter, he conducted search of accused vide Ex.P.11. On search he found opium in 35 small paper pockets from the left pocket and charas in 50 small papers packets from right pocket of his shirt. He prepared seizure memo Ex. P.12, arrested the accused vide arrest memo Ex.P.13 seized the motor-cycle vide memo Ex.p.14. On asking for licence, the accused replied that he has no licence. He got the contraband articles weighed and the opium and charas were weighing 145 grams and 225 grams respectively. The samples were taken. The samples and the remaining contraband were sealed.
3. After completion of above formalities, a case was registered vide FIR No. 267/98 for offence under Sections 8/16 and 8/20 of the NDPS Act. During investigation the police recorded the statements of witnesses Under Section 161 Cr.P.C. and sent the samples to the Forensic Science Laboratory for chemical examination. On chemical examination, the sample confained in the packet marked A/1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2,18% morphine and on microscopic and chemical examination the another sample in packed B1 was found to be charas. After the investigation was over, the police submitted a charge sheet against the accused appellant in the Court of Special Judge, NDPS Act Cases, Dholpur.
4. The learned trial court, on the basis of material on record and after hearing the arguments of counsel for the parties framed charges against the accused for offence Under Section 8/18 and 8/20 of the NDPS Act. The charges were rend over and explained to the accused, to which he denied and claimed trial.
5. During trial, the prosecution in support of its case, examined as many as 11 witnesses and also exhibited some documents viz., Ex.P.1 to Kx.P.20. Thereafter the accused was examined Under Section 313 Cr.P.C'. He did not examine any witness in his defence.
6. After completion of trial, the teamed Special Judge, NDPS Act Cases found the accused guilty of the offences charged with and accordingly convicted and sentenced him as aforesaid. Hence, the present appeal.
7. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and carefully examined the impugned judgment and the record of the trial Court.
8. The main thrust of the arguments of Mr. Anurag Sharma, learned counsel representing the accused appellant is that the trial court has seriously erred in placing reliance on the recovery of opium and charas from the possession of accused appellant since the mandalory requirements of the provisions of Section 42 and 50 of the NDPS Act had not at all been followed by the Police Officer before conducing search, which led to the seizure of contraband articles. He vehemently argued that the appellant was required to be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate as required under the provisions of Section 5Q of the NDPS Act.
9. On the other hand, learned Public Prosecutor has supported the findings arrived at by the learned trial court in holding the accused appellant guilty of the offences charged with and has submitted that the judgment under appeal calls for no interfere and it deserves to be maintained.
10. The first question that arose for consideration of this Court is, whether there was compliance of the provisions of Section 42 of the NDPS Act. keeping in view the provision being held to be mandatory by the Apex Court in series of judgments.
11. To decide the above question, it would be appropriate to first notice to the relevant provision.
12. Section 42 of the NDPS Act deals with power of entry, search-seizure and arrest without warrant or authorisation. Sub-section (1) of Section 42 provides that any officer authorised under the Act who received any information from any person, should take down in writing that any Narcotic Drug or Psychotropic Substances, in respect of which an offence punishable under Chapter IV has been committed, may between sun rise and sun-set:
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove anyobstacle to such entry;
(c) seize such during or substance and all materials used in manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substances; and
(d) detain and search, and, if the thinks proper, arrest any person whom he has reason to believe to have committed any offence-punishable under Chapter IV relating to such drug or substances.
13. Sub-section (2) of Section 42 of the Act further gives mandate to the authorised officer after writing down the information under Sub-section (1) to forthwith send a copy thereof to his immediate official superior.
14. In the case in hand, whether or not there was compliance of the aforesaid provision, I have gone through the evidence on record. The material witnesses in this regard are p.w. 11 Sharad Chaudhary, Deputy Superintendent of Police, who is alleged to have received information and PW G Jagan Lal, S.H.O. who is alleged to have furnished information to PW 11 Sharad Chaudhary. PW 11 Sharad Chaudhary has stated that while he was at his home, he received telephonic information on 15.8.98 from Shri Jagan Lal SHO, Kotwali, Dholpur. He prepared information memo Ex.P. 17 and sent it to the Superintendent of Police vide Ex.P. 18. In cross examination, he has deposed that he had also informed the Superintendent of Police on phone and sent Ex.P. 18 through Constable Narain Singh, but he did not hand over receipt of the same. PW 6 Jagan Lal in his statement has no where stated that he received any information about the contraband articles being in possession of the accused, nor he has stated that he sent any information to the Deputy Superintendent of Police.
15. From the evidence discussed above, it is evident that PW 11 Sharad Chaudhary obviously did not receive any information as is clear from the statement of PW 6 Jagan Lal which does not speak about any information having been sent by him to the Deputy Superintendent of Police. Under the provisions of Section 42 (1) it was for the S.H.O. himself to have recorded the information received from informer, rather than transmitting it to the Deputy Superintendent of Police. After taking on record the information, he was required to send a copy thereof to his superior officer as provided under Sub-section (2) of Section 42 of the Act. Even Narain Singh, Constable with whom the information is alleged to have been sent to the Superintendent of Police by PW 11 Sharad Chaudhary has not been examined by the prosecution so as to prove that such information was at all sent. Therefore, in the circumstances aforesaid, I have no hesitation in arriving at a conclusion that there was complete non-compliance of the provisions of Section 42 of the NDPS Act.
16. This court also in the case of Bundu @ Abdul Latif v. State of Rajasthan (1), relying upon the decision of the Apex Court in State of Punjab v. Balbir Singh (2), has held that since there is complete non-compliance of the mandatory provision of Section 42 of the Act, the whole trial as well as the conviction of the appellant stands vitiated.
17. Section 42 of the NDPS Act has been held to be mandatory by the Apex Court in the case of Balbir Singh (supra). The observations made by the Apex Court read as under:
'The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid hard to innocent persons and to aboid abuse of the provisions by the Officers, certain safe-guards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial'.
The Hon'ble Court further observed:
'Under Section 42(2) such empowered officer who taken 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 non compliance of this provision the same affects the prosecution case. To that extent it is mandatory.
18. In the facts and circumstances of the case in hand and on a careful scrutiny of the evidence discussed above in the light of the aforesaid provisions of the Act and the law laid down by the Apex Court, I have no hesitation in holding that there was a complete non-compliance of the provisions of Section 42 of the NDPS Act, inasmuch as there was failure on the part of the officer to reduce the information to writing as provided in Sub-section (1) of Section 42 and further he has failed to discharge its obligation in not sending a copy of the information to his immediate official superior as required Under Section 42(2) of the NDPS Act. Consequently, failure to comply with these requirements thus affects the prosecution case and therefore, vitiates the trial.
19. The next question that falls for determination is whether on the facts and in the circumstances of the case as revealed from the evidence on record the search of the person of the accused and the recovery of small paper packets of opium and Charas from his possession was vitiated on account of non- compliance with the requirements of Section 50 of the NDPS Act.
20. The relevant provision in this regard is sub Section (1) of Section 50 which provides that when any officer duly authorised Under Section 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.'
21. On a bare reading of the above provision, it is evident that the statute provides a reasonable safeguard to the accused before a search of his person is made by an officer authorised Under Section 42 of the NDPS Act. The question as to the effect of non-compliance of the provisions of Section 50 came up for consideration before the Hon'ble Supreme Court in catena of decisions.
22. In State of Punjab v. Balbir Singh (supra), the Apex Court held that 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.
23. In State of Punjab v. Baldev Singh and Others (3), the Constitution Bench of the Supreme Court after considering number of cases including Balbir Singh's case have held that it is imperative for the investigating officer to inform the suspect, orally or in writing, about his right to be searched before a gazetted officer or a Magistrate. Failure to give such information may not vitiate the trial but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only on the basis of possession of such illicit article. The Hon'ble Court further held that if the person so informed requires to be searched before a gazetted officer or a Magistrate, the empowered officer is obliged to comply else it would render the search and conviction solely based on it bad.
24. In the aforesaid case, the Constitution Bench have considered the various questions relating to interpretation of Section 50, the obligatory character of the provisions therein and the consequence of the non-compliance with the requirements. On a detailed discussion of the various contentions raised and the previous decisions of the Apex Court in the matter, their Lordships of the Constitution Bench held as under:-
'To be searched before a gazetted officer or a Magistrate, if the suspect to requires, in an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, It appears to have been incorporated in the Act keeping in view the severity of the punishment. 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, she 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 the Magistrate or a gazetted officer, at the time of the intended search. The Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 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.'
25. In para 57 of the Judgment, the conclusions arrived at by the Constitution Bench have been summed up as below:
(1) 'Thai when an empowered officer or duty authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned of his right under Sub-section (1) of Section 50 of being taken to the e nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information not necessarily be in writing.
(2) That failure to inform the concerned person 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 illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.'
26. Recently in T. Hamza v. Slate of Kerla (4), after considering various previous cases and quoting the aforesaid observations of the Constitution Bench in Bal,dev Singh's case (supra), the Apex Court have held that since there was non compliance of the provisions of Section 50(1) of the Act before effecting the search and seizure, the conviction of the appellant was unsustainable.
27. Testing the case in hand on the touchstone of the principles laid down in the above referred decisions of the Apex Court, the conclusion is ineviiable that the requirements of Section 50 of the NDPS Act were not at all complied with before making the search of the person of the accused. The main witness to the search in the present case, which led to recovery of opium and charas from the accused is PW 11 Sharad Chaudhary, Deputy Superintendent of Police and PW 1 Baivinder Singh, PW 2 Constable Nar Singh and PW 3 Constable Jal Singh, who accompanied PW 11 Sharad Chaudhary to the place of incident and were members of the raiding parly. PW ! 1 Sharad Chaudhary gave option notice, Ex.P. 20 to the accused appellant, which shows that he asked the accused to explain whether he wants to have his search conducted by him (Dy. S.P.) who is a Gazetled Officer or in the presence of a Magistrate or by a Magistrate. The exact words used in the option notice Ex.'. 20 are necessary to be quoted, which read as :
;g Hkh Li'V djs vki viuh ryk'kh Jheku~ lh-vks- jktif=r vf/kdkjh ls fyokuk pkgrs gS vFkok fdlh eftLVsV dh mifLFkfr esa ;keftLVsV ls fyokuk pkgrs gSaA Li'V djsaA**
28. Thus from a perusal of option notice Ex.P. 20, it becomes crystal clear that PW 11 Sharad Chaudhary gave option for himself and not for a Gazetted Officer.
29. PW 6 Jagan Lal who was posted as SHO, Kotwali, to whom PW 11 Sharad Chaudhary gave a written report at the place of incident and entrusted investigation has stated in his cross examination that he was with the raiding party. He no where stated that any option as required under Section 50 of the NDPS Act was given to the accused. He further stated that C.O. Sahib asked the accused that they want to conduct his search, to which accused replied that he may take search. PW 1 Baivinder Singhwas not cross examined, hence his evidence cannot be read. PW 2 Constable Nar Singh has also no where stated that any option as required Under Section 50 of the Act was given to the accused. PW 3 Jal Singh has stated that PW 11 Sharad Chaudhary did not use the word 'Magistrate'. Likewise, PW 4 Harbir Singh Head Constable has no where stated whether any option was given or not. That apart, two motbir witnesses, namely PW 7 Mustaq and PW 10 Bhanu Pratap have not supported the prosecution case and have been declared hostile.
30. Thus on a close scrutiny of the evidence referred to above, 1 am of the considered opinion that the accused appellant was not at ail made aware of his extremely valuable right to have his search conducted before a Magistrate or a Gazetted Officer. It appears to me that the Police Officer who conducted search of the accused thought it proper that he himself being a gazetted officer is competent to search the suspect and that would be sufficient to meet the requirements of the provisions of Section 50 of the NDPS Act. Even when a search is made before a Gazetted Officer, it is obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate as provided Under Section 50 of the NDPS Act, inasmuch as this right being an extremely valuable right which the legislature has clothed him with and has been incorporated in the Narcotic Act keeping in view the severity of the sentence.
31. In Ahmed v. State of Gujrat (5), a question similar to the present case cameup for consideration before the Apex Court and there Lordships, following the judgment in Baldev Singh's case (supra) rejected the argument advanced on behalf of the State respondent that the requirement of compliance of Section 50 will not arise, if searchis going to be made by an empowered officer, who happends to be a gazetted officerand held that when an empowered officer or a duly authorised officer, acting on priorinformation is about to search a person, it is imperative for him to inform the personconcerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted officer or a nearest Magistrate for making the search.
32. Similarly, in Badshah v. State (6), the Delhi High Court relying upon the recent judgment of the Apex Court in T. Hamza v. State of Kerala (supra) has observed that the accused has to be informed of his right to be searched in presence of a Gazetted Officer or a Magistrate, and there has to be full compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act and substantial or partial compliance would be violative of Section 50 of the NDPS Act. The observations of Delhi High Court fully applies to the facts and circumstances of the present case as in the present case also there was partial compliance of the provisions of Section 50 of the NDPS Act as has been observed herein above.
33. From the facts and circumstances of the present case, the evidence and material on record and in view of the case laws cited above, it stands fully established that there was non-compliance of the requirements of the provisions of Section 50 of the NDPS Act and accordingly it is held that failure to comply with the requirements of the same renders the recovery of illicit articles illegal and vitiate the conviction and sentence on the basis of possession of such illicit articles.
34. Thus on both counts (i) failure to comply with the provisions of Section 42 and (ii) non-compliance of the provisions of Section 50 of the NDPS Act, the accused appellant deserves acquittal by this Court.
35. For all the reasons stated above, I allow this appeal, set aside the conviction and sentence and acquit the accused of the offences charged. He is in Jail and he be released forthwith, if not required in any other case. The fine amount, if deposited, may be refunded to the accused appellant.