Mandhata Singh, J. – This government appeal is preferred against the judgment and order dated 4th March, 2002 passed in N.C.B. Case No.6 of 1998 by Sri Dharnidhar Jha, Sessions Judge, Rohtas at Sasaram by which learned Sessions Judge has acquitted the respondents from the charge under Section 20(b) (i) read with Section 8 (C) of the Narcotic Drugs and Psychotropic Substances Act.

2. Prosecution case initiated on fard-bayan of one Manohar Singh Baba, Intelligence Officer, Narcotic Control Bureau, Varanasi, in brief, is that he (informant) received an information about selling of ‘Ganja’ by one Raju Prasad Sah (respondent no.2) and also concealing its huge quantity. He reported the matter to his higher officials and obtained an order regarding conducting of raid. Accordingly, he along with Binay Maharaj, Karnail Singh, Rama Raman Tripathi, K.P. Ojha and S. K. Tiwary came to Nasariganj on 9.12.1998 at about 9.00 A.M., here he met two persons namely Babudhan Prasad and Lal Babu Ram. Informant disclosed their identities and informed them about the information received by him and requested them to remain present at the time of search, which was accepted by the both. Informant along with officials accompanying him and witnesses came to the shop of Raju Prasad Sah where accused Gyani Prasad was found sitting. He (informant) disclosed his identity as well as of others accompanying him. He further stated about receiving of information about concealing of ‘Ganja’ in shop in huge quantity and his intention to search it. He further informed Gyani Prasad in writing that if he was so wishing, the search might be in presence of a gazetted officer or a Magistrate, to which accused Gyani Prasad refused and allowed PW-1 and his companion to search the shop. On search, 3-5 kilograms of Ganja was recovered, which was seized. Samples were taken from seized ‘Ganja’ in two different envelopes, remaining recovered ‘Ganja’ was sealed separately in a piece of cloth, weighing machine with some weights recovered and seized also.

3. A memo was prepared, its copy was handed over to Gyani Prasad Sah, who was arrested and a confession was also made on his behalf to the effect that co-accused Raju Prasad Sah was owner of the shop and he was working as only salesman on payment of monthly salary.

4. Only two witnesses are examined in the case. They are PW-1 Manohar Singh Baba and Sushil Kumar Tiwari. After scrutinizing the witnesses, trial is ended in acquittal of both the accused persons by passing the impugned judgment validity of which has been questioned through filing of this appeal.

5. Non-compliance of mandatory provision of Section 50 of the Narcotic Drugs & Psychotropic Substances Act and non-examination of seizure witnesses in compliance of Section 51 of the Narcotic Drugs & Psychotropic Substances Act and Section 100 of the Cr.P.C. along with seizure in absence of two independent and respectable inhabitants of the locality have been made ground for acquittal of accused respondents. They are only to be scrutinized if legally can be taken for acquittal.

6. PW-1 was competent to search and seizure is not in dispute. Section 50 of the Narcotic Drugs & Psychotropic Substances Act makes mandatory search in presence of a Gazetted officer or a Magistrate. Not only this, it is bounded duty of the official conducting the search to make over to the accused that such right was available to him. 1996 SCC (Criminal) 1 is referred by the trial Court to strengthen its non-compliance, but some mistake is committed on this point that this provision is made for search of the person of the accused not the house or shop as has been done in the case. It is made clear that shop of accused persons was searched. So, according to the prosecution Section 50 of the N.D.P.S. Act was not applicable. This matter was taken by the Apex Court in case of State of Punjab vs. Baldev Singh by a Constitutional Bench reported in 1999 (6) SCC 172, in which in clear words their Lordships have obse