( 1 ) THIS appeal is filed by the State against the order of conviction recorded against the accused for the offence punishable under Section 8 (c) read with Section 20 (b) (i) of Narcotic Drugs and psychotropic Substance Act, 1985, (for brevity herein after referred to as "the Act") and sentencing him to suffer rigorous imprisonment for five years,

( 2 ) THE case of the prosecution, in brief, is that on 6-1-1995 the Excise inspector, Vizianagaram (PW2), Excise sub-Inspector, Gajapathinagaram (PW3) and the Excise Superintendent (PW4) were conducting route watch. When they reached rtc complex at Gajapathinagaram, the accused was coming holding a zip bag (MO3) and one card board (MO1) and upon seeing PWs 2, 3 and 4 the accusd/ appellant herein attempted to run away. PW3 and his staff surrounded the accused, held him and upon questioning by PW3 in Telugu, the accused gave reply in Hindi. Since pw2 was conversant with Hindi, he questioned the accused in Hindi and he gave his name and address. On suspicion pw3 opened MOs. 1 and 3 and found MOs. 2 and 4 respectively which are ganja. PW3 arrested the accused and seized MOs. 1 to 4 and took samples MOs. 5 and 6 from MOs. 2 and 4 respectively, PW2 scribed Ex. P1 (mediators report) for the arrest of the accused and for seizure of MOs. l to 4 and for taking samples MOs. 5 and 6. PW3 took the accused and MOs to the Police station and basing on Ex. P1 the crime was registered and the property seized was sent to the analyst for his report. The report of the analyst was that MOs. 5 and 6 are ganja belonging to the family of cannabinaceae.

( 3 ) IN support of its case the prosecution examined PWs. 1 to 4 and marked Exs. Pl to p4 and MOs. 1 to 6. Ex. Cl was marked by the Court with consent.

( 4 ) MR. Gudapati Venkateswara Rao, learned Counsel for the accused/appellant herein mainly contended that the procedure contemplated under Section 50 of the NDPS act, which is mandatory, was not strictly followed. Elaborating his submission on this point he argues that as contemplated in section 57 of the Act the superior officer was not informed about the arrest of the accused and the seizure of MOs. He further submits that when the search of the accused was made he was found in possession of a zip bag (MO3) and one card board box (MO1) containing MOs. 2 and 4, which are ganja substances. Therefore, when he was holding those articles the search on the person of the accused was not made as held by this Court in Puntshothama das v. State of A. P. , 1999 (2) ALT (Crl.) 400 (A. P), which judgment was delivered by me relying upon the judgment of the supreme Court in Namdi Francis Nwazor v. Union of India and another, 1997 CCR 27 (SC ). Therefore, since the contraband was though found in a zip bag and card board box in the possession of the accused it has to be treated as a search on the person of the accused and hence the statutory requirements of the Sections 50 and 57 of the Act have got to be strictly complied with. But in this case according to the learned Counsel for the accused the Excise inspector (PW2) asked the accused about the particulars but he did not inform the accused about his statutory right of being searched by a Gazetted Officer or a magistrate. His further contention is that though the superior officer i. e. , PW4 was present at the spot any instant information from PW4 cannot be treated as an information furnished to the superior officer as contemplated under Section 57 of the act. In other words his contention was that pw4 was a party to the route watch. Any information furnished to him by the superior officer shall not be regarded as information i. e. , the information supposed to be furnished to the superior.

( 5 ) ON the other hand the learned Public Prosecutor relies upon the judgment of the Constitutional Bench of the Supreme court in State of Punjab v. Baldev Singh, air 1999 SC 2378, and also the judgment rendered by the Supreme Court in Kaleme thumba v. State, of