SHARMA, J. - (1.) INSTANT appeals impugn the judgment dated October 16, 2001 of the learned Special Judge, N. D. P. S. Cases, Pratapgarh whereby the appellants were convicted and sentenced as under:- (i) Lachhu @ Laxmi Narain under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act, 1985) N. D. P. S. Act, 1985 to suffer rigorous imprisonment for ten years and fine of Rs. 1,00,000/-; in default, to further suffer rigorous imprisonment of two years. (ii) Nathu Lal under Section 8/29 of the N. D. P. S. Act, 1985 to suffer rigorous imprisonment for ten years and fine of Rs. 1,00,000/-, in default, to further suffer rigorous imprisonment of two years.
(2.) THE prosecution story runs as under:- A complaint was filed by one N. L. Paned with the averments that on receiving secret information, a search party was constituted comprising of the officials of Narcotics Department, that got bus No. RJ-03 P-0177 haulted on March 30, 1999 near village Chiklad on Pratapgarh-Dhariyavad road. During the course of search, a passenger namely Lachhu @ Laxmi Narain was found sitting on seat No. 20 having a black coloured plastic bag (pipe type) on his lap. On being given written option under Section 50 of the N. D. P. S. Act Lachhu @ Laxmi Narain volunteered to be searched by Kishan Lal Inspector, Central Bureau of Narcotics. When the black coloured plastic bag was searched, opium weighing 4. 050 Kgs. was found in it. Statement of Lachhu @ Laxmi Narain under Section 67 of the N. D. P. S. Act came to be recorded. Necessary memo with regard to arrest, recovery, option etc. were drawn. Lachhu @ Laxmi Narain informed that he had purchased opium from Nathu Lal. A complaint, therefore, was filed against Lachhu @ Laxmi Narain and Nathu Lal on June 24, 1999, showing Nathu Lal as absconder. Charges under Section 8/18 of the N. D. P. S. Act against Lachhu @ Laxmi Narain on July 28, 1999 and after arrest of Nathu Lal, under Section 8/18 read with Section 8/29 of the N. D. P. S. Act were framed. Lachhu @ Laxmi Narain and Nathu Lal denied the charges and claimed to be tried. THE prosecution in support of its case examined as many as 10 witnesses. In their explanation under Section 313 Cr. P. C. , Lachhu @ Laxmi Narain and Nathu Lal claimed innocence. Two witness were examined in defence. On hearing the final submissions, learned trial Judge convicted and sentenced Lachhu @ Laxmi Narain and Nathu Lal as indicated herein above. I have pondered over the rival submissions and carefully scanned the material on record. Following two questions arise for my consideration:- (a) Whether statements recorded under Section 67 of the N. D. P. S. Act could be read against the appellants. (b) Whether the prosecution has flouted the mandatory provisions of Section 50 of the N. D. P. S. Act. STATEMENT RECORDED UNDER SECTION SECTION 67 OF THE N. D. P. S. ACT- Inspector Kishan Lal PW-7, recorded the statement of appellant Lachhu @ Laxmi Narain on March 30, 1999 vide Exhibit P- 11. Evidently, the fact of the arrest appeared in the statement shows that Lachhu @ Laxmi Narain was asked by Kishan Lal to give statement after making his arrest. Statement of appellant Nathu Lal was recorded on August 20, 1999 vide Exhibit P-15 by the Inspector N. L. Patod PW-9. Undeniably, complaint against Lachhu @ Laxmi Narain and Nathu Lal was filed on June 24, 1999 i. e. , prior to recording the statement. It is well settled that statement of the accused recorded under Section 67 of the N. D. P. S. Act can be used against him as is evident from Section 67 of the N. D. P. S. Act which provides as under:- " 67. Power to call for information etc.-Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government, during the course of any enquiry in connection with the contravention of any provision of this Act. (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliber any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. " Provisions of Section 67 of the Act are pari materia with the provisions contained in Section 108 of the Customs Act. Their Lordships of Supreme Court in Bhanabhai Khalpa Bhai vs. The Collector of Customs and Anr. (1), had occasion to deal with the provisions of Section 108 of the Customs Act. In the said case, the ratio of Veera Ibrahim vs. State of Maharashtra (2), was referred as under:- " In the case Veera Ibrahim vs. State of Maharashtra, it was examined, as to whether the statement of the accused in that case recorded by the Customs Officer under Section 108 of the Act before any complaint or first information had been lodged against him, can be used against such accused when he was charged for having committed an offence under Section 135 (1) (a) of the Act. "
(3.) IN view of ratio propounded in Veera Ibrahim (supra), and Bhanabhai Khalpa Bhai (supra), the statements of the appellants recorded under Section 67 of the N. D. P. S. Act can undoubtedly be used against them if they are recorded prior to institution of complaint and before taking them in custody. As already noticed, the statement of Nathu Lal was recorded much after the institution of the complaint, whereas, Lachhu @ Laxmi Narain was examined while he was in custody. IN these circumstances, the statements cannot be used against the appellants. SECTION 50 OF THE N. D. P. S. ACT- It is the case of the prosecution that Inspector Kishan Lal PW-7 before conducting the search of appellant Lachhu @ Laxmi Narain served him with written notice under Section 50 of the N. D. P. S. Act vide Exhibit P-6. A look at the Exhibit P-6 goes to show that Inspector Kishan Lal asked the appellant Lachhu @ Laxmi Narain that he was entitled to be searched by the Magistrate or Gazetted Officer but Lachhu @ Laxmi Narain volunteered to be searched by the Inspector Kishan Lal and made an endorsement to this effect on Exhibit P-6. It is, therefore, to be seen as to whether by searving written notice Exhibit P-6, Inspector Kishan Lal had complied with the provisions of Section 50 of the N. D. P. S. Act? Section 50 of the N. D. P. S. Act reads as under:- " S. 50. Condition under which search of person shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1 ). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the persons but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession in any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974 ). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. " A look at the aforequoted Section indicates that it has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegations of planting of fabrication by prosecuting authorities. It mandates that if a persons to be searched so requires, the officer who is about to search him under the provisions of Section 41 and 42 shall take such persons without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The Gazetted Officer or the Magistrate before whom any such person is brought, shall, if he sees no reasonable ground for search, forthwith discharge the person. Requirement of Section 50 may be summarised thus:- (i) It is mandatory for the officer conducting search and seizure to inform the suspect his right to be searched in presence of the Magistrate or Gazetted Officer. (ii) It is mandatory for the officer conducting search and seizure to follow the mandate of sub-section (3) and to inform the suspect that Gazetted Officer or the Magistrate, if sees no reasonable ground for search, shall discharge the person. ;