JUDGMENT :

Sandeep Mehta, J.

1. The appellant herein has been convicted and sentenced as below vide the judgment dated 13.08.1999 passed by learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No. 38/1998 as below:-

2. The instant represented appeal (No. 520/1999) and the Jail Appeal (No. 606/99) have both been preferred by the appellant Ladulal under Section 374 (2) Cr.P.C. for assailing the judgment dated 13.08.1999. Since both these appeals arise out of a common judgment, the same are being heard and decided together.

3. Brief facts relevant and essential for disposal of the instant appeal are narrated hereinbelow:-

As per the prosecution case, the appellant was apprehended by Shri Sumer Singh (PW. 5), SHO PS Asind, Bhilwara on 08.07.1998 while carrying suspected contraband opium weighing 250 grams. Before proceeding to undertake the personal search, the Seizure Officer Shri Sumer Singh (PW. 5) allegedly gave a notice (Ex. P/2) under Section 50 of the NDPS Act to the appellant, the substratum whereof reads as below:-

^^mijksDr ekSrchjku ds le{k vijk/kh Jh yknqyky iq= xksih xqtj mez 32 lky irk tkyjh;k ih-,l- vklhUn ftlds ikl vQhe gksus dh lEHkkouk gSA ftldks dgk x;k dh rsjs ikl vQhe gS rqEgkjh ryk'kh xftVsM vQlj ;k eftLVªsV lkgc ds lEeq[k ysuk gS ds ikl pyksA

Allegedly after receiving consent of the accused that he was desirous of being searched by the SHO himself, the Seizure Officer Sumer Singh proceeded to take personal search of the accused appellant and during the said process, suspected contraband opium was found in the right pocket of the appellant's shirt, which weighed at 250 grams. One sample of 50 grams was taken out therefrom. The sample as well as the remnant contraband were sealed in separate packets. After investigation, a charge-sheet came to be filed against the appellant for the offence under Section 8/18 of the NDPS Act in the Special Court, NDPS Act Cases, Bhilwara. After completion of the trial, the appellant has been convicted and sentenced as above. Hence, this appeal.

4. Shri Suresh Kumbhat, learned counsel representing the appellant has advanced two-fold submissions for assailing the appellant's conviction as recorded by the trial court. His first and foremost contention is that the Seizure Officer Shri Sumer Singh (PW. 5) did not comply with the mandatory requirement of Section 50 of the NDPS Act while conducting personal search of the appellant who was not apprised of the existence of his right to be searched before a Magistrate or a Gazetted Officer. Shri Kumbhat further submitted that even while deposing in the court, the Seizure Officer Shri Sumer Singh (PW. 5) did not state that he apprised the appellant of his right to be searched before a Gazetted Officer or a Magistrate. The second contention of Shri Kumbhat, learned counsel representing the appellant is that the packet of sample allegedly taken out from the recovered contraband and the remnant Muddamaal weighing 200 grams were not deposited in the Maalkhana, as reflected in the Maalkhana Register entry (Ex. P/19), which fact as per him goes to the root of the matter and vitiates the entire prosecution case. He thus, urges that the impugned judgment of conviction is bad in the eyes of law and prays that the impugned judgment should be set aside and the accused-appellant be acquitted of the charge. In support of his contention, Shri Kumbhat has relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Arif Khan @ Agha Khan vs State of Uttarakhand : AIR 2018 SC 2013.

5. Learned Public Prosecutor on the other hand has vehemently & fervently opposed the submissions advanced by Shri Kumbhat and urges that the appellant was apprehended while carryin