JUDGMENT (ORAL) Kamat, J. - Appellant a Kenyan National challenges the judgment and Order dated 23rd March 1993 whereby he was convicted under Section 20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Upon conviction he is sentenced to 10 years of rigorous imprisonment and fine of Rs. 1 lakh and in default of payment of fine to undergo further imprisonment of 6 months. 2. In the Sessions Case No. 3/91 appellant was charged for being in possession of 95 gms. of Charas of the value of Rs. 1,900/- in contravention of Section 8 of the N.D.P.S. Act upon discovery of the drug by the officers attached to Calangute Police Station on 30th November 1990 at about 4.00 p.m. near Verma Guest House at Calangute, Goa. 3. In support of the case that the appellant possessed 95 gms. of Charas, the prosecution have examined 3 witnesses out of whom Maria Caldeira (P.W. 1) is a Junior Scientific Officer attached to the Directorate of Health Service. She has been examined to prove the analytical report for having chemically analysed the sample of charas separated from and out of the quantity of 95 gms. pursuant to attachment panchanama executed by the Calangute Police. Not much reference is required to this witness for it clearly establishes that the sample analysed by her reveals that it is charas. 4. P.W. 2 is Gurudas Paliekar, who is the panch witness. According to him he was called to act as such by Calangute Police and he accompanied the police party headed by P.W. 3 P.S.I. Umesh Gaonkar and went near a banyan tree in the vicinity of Verma Guest House at Calangute. According to him he was informed that search was required of a person. He gives details of the apprehension of about 95 gms. of Charas from the person of the appellant. For that matter the witness says that when appellant was told that he is being searched for drugs, the appellant lowered his pant, took out of a blue plastic bag and produced a wrapper there from containing the charas, which was thereafter apprehended. A panchanama was duly made which he attested. 5. P.W. 3 is the Investigating Officer Umesh Gaonkar, who was in-charge of Calangute Police Station in November, 1990. A panchanama was duly made which he attested. 5. P.W. 3 is the Investigating Officer Umesh Gaonkar, who was in-charge of Calangute Police Station in November, 1990. He says that he received a telephone call from one Head Constable K.G. Dessai saying that two Negro persons are spotted and are suspected of carrying drugs. The witness says he, therefore, alerted himself and alongwith one A.S.I Kalangutkar and Police Constable proceeded towards Calangute beach. They stopped near Meena Lodge to look out for the suspected two persons. The witness says that he noticed one negro type person, detained him and questioned him. From the evidence obviously this reference is not to the present appellant. In the meantime, according to the witness, the appellant came towards that direction, who was stopped and questioned and that is how the recovery of 95 gms. of Charas was effected from the appellant. 6. This evidence found favor with the learned Sessions Judge who held the appellant guilty of possession of 95 gms. Of Charas in contravention of Section 8 of the Act and convicted him. A point was indeed raised before the learned Sessions Judge that Section 50 of the N.D.P.S. Act had not been complied with inasmuch as the appellant accused was never told that since he was being searched for drugs or psychotropic substances, he has a right to be got searched either before a gazetted Officer or before a Magistrate. The learned Sessions Judge, however, did not accept the submission under Section 50 of the N.D.P.S. Act and held that it was not obligatory on the part of the raiding party to inform the person sought to be searched that he could be taken for search before a gazetted Officer or a Magistrate. The learned Sessions Judge has obviously relied upon some judgments of this Court that though; it is mandatory to inform a person to be searched that he is being searched for drugs, Section 50 of the N.D.P.S. Act does not mandate that such person is required to be told that he has a right to be searched in the presence either of a gazetted Officer or a Magistrate. 7. This point has been raised in the present appeal as had been raised before the trial Court. 7. This point has been raised in the present appeal as had been raised before the trial Court. It must be mentioned in all fairness that some more grounds were urged and in that it was pointed out that at the time the appellant was searched another Kenyan student by name Richard Mondi was also apprehended and subsequently tried before the Sessions Court and having regard to the circumstances upon which the panchanamas had been drawn in these two cases, a great shadow and suspicion is cast on the prosecution case. 8. Mr. D'Souza learned counsel appearing for the appellant, says that there is a recent pronouncement of the Supreme Court that Section 50 is mandatory and not directory and if Section 50 is not strictly complied with the trial gets vitiated with the result accused is liable to be acquitted. There is lot of merit in what is pointed out by the learned counsel. The judgment in Stale of Punjab v. Balbir Singh1, delivered on 1st March 1994 whereby large number of appeals and SLPs are disposed of has interpreted large number of sections detained in the N.D.P.S. Act. One of the questions was whether Sections 100 and 165 of Cr. P.C. are attracted in the matter of search, arrest and seizure insofar as the provisions of the N.D.P.S. Act are concerned and while answering the same Supreme Court held that those provisions of Cr. P.C. are to be read as if they are part of N.D.P.S. Act in the matter of seizure, search and arrest. Presently we are not concerned with some sections which are interpreted and either held to be directory or mandatory. As the controversy in the present appeal turns only upon Section 50 of the N.D.P.S. Act, it is, therefore, necessary to see as to what has been held by the Supreme Court and how the same has been construed. 9. Section 50 of the N.D.P.S. Act reads as under; - "50. Conditions 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, Sec. 42 or Sec. 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 Sec. 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 person but otherwise shall direct that search be made. (4) No female shall be searched by any one excepting a female. Coming back to the judgment of State of Punjab v. Balbir Singh (supra), the Supreme Court considered Section 50 of the N.D.P.S. Act in paragraph 17 of the report. The Supreme Court observed that one important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the N.D.P.S. Act by the empowered or authorised officer while conducting the search, affects the prosecution case. In answering this question the Supreme Court observed thus: "In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a magistrate. To us, it appears that this is a valuable right given to the person the be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right." In paragraph 22 of the report, the Supreme Court observed thus: "When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or magistrate. Thus the provisions of Section 50 are mandatory." The Supreme Court summarized its conclusion in paragraph 27 and regard being had to the bone of contention in the present appeal, since we are concerned with a case that the search of the appellant and subsequent seizure and arrest were in an open place on prior information, the facts of the case come in conclusion No. 5. Conclusion No. 5 of paragraph 27 reads as under: "5) On prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided there under. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such personated for such a course or not would be a question of fact. 10. We have read the evidence of P.W. 2 Gurudas Paliekar, who is a panch witness, read the panchanama dated 30th November 1990 Exhibit P.W. 2/A and we have also gone through the evidence of P.W. 3 Umesh Gaonkar. There is no whisper that appellant was told in compliance with the mandate of Section 50 that he has a right to be searched either before a gazetted officer or a magistrate. The evidence indeed suggests that the appellant was told that he is being searched for drugs or psyschotropic substances but the appellant was never told that he has a right to be searched before one or the other authority as mentioned earlier. Since the mandate of Section 50 has not been complied with, in our view, the trial stands vitiated. The evidence indeed suggests that the appellant was told that he is being searched for drugs or psyschotropic substances but the appellant was never told that he has a right to be searched before one or the other authority as mentioned earlier. Since the mandate of Section 50 has not been complied with, in our view, the trial stands vitiated. Though we are convinced that recovery of 95 gms. of charas was made from the appellant, the appellant is acquitted solely on the ground that there is no compliance of Section 50 of the N.D.P.S. Act. 11. The result is, the appeal succeeds. Impugned Judgment and order dated 23rd March 1993 in Sessions Case No. 3191 is quashed and set aside and appellant directed to be set at liberty. Appeal allowed. 1. JT 1994 (2) S.C. 108.