S. D. JHA, J, J. ( 1 ) APPELLANT Mohanlal Sb Swaroopji challenges his conviction under 5. 8/18 of Narcotic Drugs and Psychotropic Substances Act. 1985 and sentence of 10 years R. I. and fine of Rs. 1 lac, in default two years R. I. awarded by the 5th Additional Sessions Judge, Ujjain by judgment dated 26-4-1989. ( 2 ) THE appellant, here-in-after called, the accused was prosecuted by Government Railway Police, Ujjain. The prosecution story is that in the night between 13-14 Sept. 1987 accused was traveling on train No. 111 Dn. going to Bhopal from Badodara via Ujjain and was lying on the lower berth of two-tier-coach. Two police constables Kaluram Parmar (P. W. 2) and Ran Narayan (not examined by the prosecution) were on Guard duty in the train. The two constables on seeing red-green packets on the chest of the accused grew suspicious and questioned and searched the accused in presence of other co-passengers, Ramesh (P. W. 4) and Prakash (not examined by the prosecution ). On questioning the accused and searching him the two constables found that he was carrying opium. The two constables made the accused to get down from the train at Tarana Road Railway Station and then in goodes train, in the morning came back to Ujjain. At Ujjain they produced the accused before S. O. Lakhansingh (P. W. 6) Kaluram Parmar, constable lodged first-information report, Ex. P. 2 which was written down by Lakhan singh Chouhan He effected seizure of the opium from the accused and samples were taken stand sent for Chemical examination. Chemical examiners report Ex. P. I opined that each of the three samples sent to him on qualitative and quantitative analysis was foulld to be opium within the meaning of the Act. ( 3 ) ACCUSED on 5-5-1988 pleaded not guilty to charge under 5. 8/18 of N. D. P. S. Act, 1985. In his examination he denied that he was in the train. He also stated that witnesses had demanded Rs. 4,000/- from him and on his failure to pay them this amount, they had not made statements in his favour. He further stated that he was sleeping at the waiting room (MUSAPHIR KHANA) when the constables pointed out saying that he is the man who ran away from the train and he was apprehended and a false case lodged against him. He further stated that he was sleeping at the waiting room (MUSAPHIR KHANA) when the constables pointed out saying that he is the man who ran away from the train and he was apprehended and a false case lodged against him. He did not examine any witness in defence. The 5th Additional Sessions Judge found the accused guilty and convicted and sentenced him as already set out above. ( 4 ) AT the hearing of the appeal, Shri C. R. Joshi learned counsel representing accused/appellant submitted that the evidence led in the case had been mis-appreciated and that it did not bring home the charge against the accused. There had been non-compliance with Ss. 42,43,s0and 57 of the NDPS Act in as much as police constables were not empowered to search the accused or apprehend him. The accused was not informed of his right of being searched by the nearest gazetted officer of the Department or nearest magistrate. Full report of particulars of arrest and seizure to immediate official superior was not made within 48 hours next after arrest of the accused and seizure of opium. Shri C. R. Joshi submitted that all this made the whole trial illegal and conviction of the accused deserves to be set aside and the accused acquitted. In support of his submissions Shri C. R. Joshi relied on notification No. R-36-V-SR-85-4813 dated 11th November, 1985 issued by the State Government of Madhya Pradesh and judgment of this Court in Mohd. Nabi v. State of M. P. . ( 5 ) ON behalf of the State of Madhya Pradesh Shri S. M. Bapat learned Deputy Government Advocate generally defended the impugned judgment. ( 6 ) ADMITTEDLY and accused was searched by police constables Kaluram Parmar (P. W. 2) and Had Narayan (not examined by the prosecution ). Notification dated 11-11-1985 issued by the State. Government in exercise of powers of 5. 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in respect of Police Department expowers Assistant Sub-inspector and officers above the rank of the police Department under this Section. The two constables could not have, therefore, searched or arrested without warrant the accused nor could they have taken him to Ujjain GRP Police Station. ( 7 ) THE prosecution examined K. S. Murti, Asstt. Chemical Examiner, Govt. Opium Factory Neemuch Distt. The two constables could not have, therefore, searched or arrested without warrant the accused nor could they have taken him to Ujjain GRP Police Station. ( 7 ) THE prosecution examined K. S. Murti, Asstt. Chemical Examiner, Govt. Opium Factory Neemuch Distt. Mandsaur, (PW 1) Police Constable Kaluram Parmar (P. W. 2) Nanheveer Patel (PW 3), head Constable who made Rojnamcha entries, Ramesh S/o Gabbulal (P. W. 4) who was traveling in the train along with the accused; Rajendra (PW 5) in whose presence at the police station Lakhan Singh Chouhan (PW 6) seized contraband articles, and Lakhan Singh Chouhan (P. W. 6 ). The evidence of the witnesses in particular that of Lakhan singh Chouhan does not at all show that accused was informed of his right to be searched by gazetted officer of Department or nearest Magistrate. In Mohd. Nabis case (supra) a Single Judge of this Court after referring to precedent on the subject held: - On a careful consideration I am of the view that non-compliance with the aforesaid mandatory requirement of Section 50 of the Act constitutes an illgality which strikes at the very root of jurisdiction and per se vitiates the entire subsequent proceeding. Reference in this connection may usefully be made to the decision in Salamat Ali's case (Cr. appeal No. 296/89; decided on 25-9-90 ). ( 8 ) THE evidence adduced in the case also does not show that there was any compliance of S. 57 of the Act as to within 48 hour next of arrest or seizure making a full report of particulars of such arrest or seizure to the immediate official superiors. Lakhan Singh Chouhan does not speak a word about the same. This is further infirmity in the case. ( 9 ) IN view of the aforesaid reasons, in particular, non compliance with S. 50 of the Act, the conviction and sentence imposed against the accused/appellant would have to be set aside and the appeal allowed. ( 10 ) AS a result, the appeal is allowed and conviction and sentence imposed against the accused/appellant set aside. The accused/appellant is in jail, he shall be set at liberty forthwith, if not required in any other case. Appeal allowed. .