( 1 ) THIS appeal is directed against the judgment dated 13/03/2001 and order dated 15/03/2001 of an additional Sessions Judge convicting the appellant-accused under section 21 of the Narcotic Drugs and Psychotropic substances Act, 1985 (for short the act ) and sentencing him to undergo RI for 10 years and pay a fine of Rs. 1 lac.

( 2 ) CASE of the prosecution, in brief, is that on 1 6/08/1999 around 2. 15 PM ASI Chander Pal Singh, PW-9 alongwith HCs Om Parkash, PW-7, Harpal Singh and const. Rajvir Singh were present in connection with patrolling at E. E. Block Bus Stand, Outer Ring Road and there pw-9 received secret information that a person by the name of Rameshwar having heroin, would go to Maksudpur village via Maksudpur chowk. PW-9 organised a raiding party consisting of said police officials with him. PW-4 Sher singh from public who agreed to Join raid, was also included in raiding party. Nakabandi was made near Maksudpur chowk. Appellant maksudpur chowk on foot at about 3. 05 PM and on pointing out of informer, he was stopped. PW-7 was thereafter deputed by PW-9 to inform PW-3 Rajinder Prasad, sho about the secret information and apprehending of appellant. PW-3 reached the spot at about 3. 30 PM. PW-9 gave notice under section 50 of the Act to the appellant but he declined to be searched either before a Magistrate or a gazetted officer. Appellant was holding a bag in the right hand. On opening, same was found containing a steel box. In the steel box, heroin wrapped in a polythene theli was found to be kept. On weighment, weight of recovered heroin came out to be 303 grams out of which 50 grams was separated as sample. Sample and remaining heroin were converted into two parcels and sealed with the seals of CPS and RPV. Form cfsl was filled in and specimen of both the seals were also affixed thereon. Both the parcels were seized vide memo ex-PW-13/2. PW-9 sent the rukka Ex. PW-9/2 and on the basis thereof FIR (carbon copy EX. PW-2/a) was registered. Both the parcels and CFSL form were handed over to PW-3 for being deposited in malkhana. Sample parcel was sent for analysis to FSL and as per report Ex. PX the sample gave positive test tor diacety Imorphine. After completing investigation, chargesheet was filed against the appellant.

( 3 ) IN the statement under section 313 Cr. P. C. , plea taken by appellant is of plain denial. He examined Uttam lal, DW-1 who stated that appellant was lifted from his house at 3. 30 or 4. 00 AM at the instance of Yash Pal with whom the father of appellant was having civil litigation.

( 4 ) TO bring home the charge under section 21, the prosecution examined 9 witnesses in all including Pws 3,4,7 and 9, alleged witnesses of recovery. Believing the statements of Pws and disbelieving the plea raised by appellant, he was convicted and sentenced in the manner stated above.

( 5 ) IT was firstly contended by Sh. Sanjeev Kumar for appellant that notice under section 50 Ex. Pw-9/1 served on the appellant could not be treated as communicating to him that he had a right, under law to be searched either before a magistrate or a GO. Relying on the decision in Namdi francis Nwazor vs. 1996 (4) Scale (SP) 1, it was urged that provision of section 50 is attracted in the present case. In Namdi Francis s case the petitioner who was leaving India on 23/06/1987 by Air india Flight No. AI-860 from Delhi to Lagos via Bombay, had booked one bag which had already been checked-in and was lodged in the aircraft and on examination the same was found to contain 153 cartons out of which one cartoon carried polythene packet having brown colour powder suspected to be heroin. Admittedly, notice under section 50 had not been served on the petitioner. One of the submissions advanced before the Apex court was that as there had been violation of section 50. While dismissing the appeal, in Para 4 of the decision it was observed ~ we must hasten to clarify that it a person is carrying a hand bag or like and the incr