THE PROVISIONS OF SECTION 50 OF THE ACT APPLY TO THE CASE OF BODY SEARCH OF THE ACCUSED. WHERE THE CONTRABAND IS RECOVERED FROM THE BAG IN HAND OF THE ACCUSED, SAID PROVISIONS DO NOT APPLY. THE CONFESSION OF THE APPELLANT RECORDED UNDER SECTION 67 OF THE ACT CANNOT BE USED AGAINST HIM IF IT IS RECORDED AFTER FIRST INFORMATION REPORT HAD BEEN LODGED AGAINST HIM.

1. - Appellant has submitted this appeal impugning the judgment dated January 10, 1995 of the learned Special Judge NDPS Cases cum Additional Sessions Judge No. 2 Kota (for short the trial court) whereby the appellant was convicted under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.1 lac in default to further undergo simple imprisonment for one year.

2. The case of prosecution is that on August 19, 1993 the Narcotic Prevention Party of Kota headed by Inspector Satyaveer Singh stopped and searched Bus No. RJ 14 P 3159 while the same was passing in front of Khanna Krishi Farm on Kota Bundi Road. The appellant was found occupying seat No. 42 in the bus holding a ragzine bag on his lap. He showed signs of nervousness which aroused suspicion and consequently the bag was searched by the Prevention Party. The search allegedly revealed presence of opium weighing 3.250 gms. Seizure memo was drawn, appellant was arrested and on completion of investigation the appellant was put up for trial. Charge under section 8/ i 8 of the Act was framed to which the appellant pleaded not guilty and claimed trial. The prosecution examined as many as nine witnesses. In his explanation under Section 313 Cr.RC. the appellant denied the allegations appearing in the prosecution witnesses. However no witness in defence was examined. The learned trial court after hearing arguments convicted and sentenced the appellants as indicated here in above.

3. Mr V.R. Bajwa, learned counsel appearing for the appellant made scathing attack on the sustainability of the prosecution against the appellant by stating that inasmuch as the provisions of the NDPS Act are so stringent in punishing ruthlessly the offenders in inflicting imprisonment up to a minimum period of ten years and a fine of Rs. 1 lakh, the Parliament made certain procedural safeguards to ensure the liberty of citizens accused of such offences by incorporation of certain mandatory provisions, non-compliance of which will have the effect of throwing lock, stock and barrel the case of the prosecution by rendering a verdict of acquittal. He amplified this submission that, in so far as the case on hand is concerned, the version set out by the prosecution is exfacie highly unnatural. Normally no passenger during journey in bus keeps his luggage in his lap. Such luggage/bag etc. is always placed either under the seat or on the over head shelf. The bus was full of passengers, not even one passenger has been produced by the prosecution to prove the seizure of opium from the possession of the appellant. The appellant was denied the valuable right of being searched in the presence of a Gazetted Officer or the Magistrate. The Narcotic Prevention Party took the false plea that the appellant had offered to be searched by the narcotic people. The mandatory provisions of section 50 and 57 of the Act have been flouted and the same has vitiated the trial. Reliance was placed on Bhanabhai Khalpa Bhai v. The Collector of Customs and Another (1994 (1) Crimes 940) , State of Punjab v. Jasbir Singh and others (1996) 1 Supreme Court Cases 288) and Murli Dhar v. State of Haryana (1990 (3) Recent Criminal Reports 657) .

4. Mr. K.N. Shrimal, learned counsel appearing on behalf of the UOI. repelled the submissions advanced by the learned counsel for the appellant and submitted that the invalidity of a proceeding or illegality of a search or seizure, does not vitiate the prosecution, unless such invalidity or illegality has resulted in causing prejudice to the person accused of the offence. Mr. Shrimal further contended that the confessional statement of the appellant recorded by the officer of the Narcotics Department is admissible in evidence as raiding party consisted of Gazetted Officer. Therefore search conducted in his presence constitutes due compliance with the provisions of section 50 of the