JUDGMENT 1. - These two appeals arise out of the judgment dated 8-11-1993, passed by the Special Judge, N.D.P.S. Cases, Dholpur, by which the learned Special judge convicted the accused-appellant for the offence under Section 8/20(b) of the Narcotic Drugs and Psychotropic Substances Act, and sentenced him to undergo ten years, rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine further to undergo one year's rigorous imprisonment. S.B. Criminal (Jail) Appeal No. 497 of 1993 has been preferred by the appellant through jail, in which Miss Rajesh Kandwal, Advocate, has been appointed as the amicus curiae. S.B. Criminal Appeal No. 8 of 1994 has been filed by the accused-appellant through his counsel. As both these appeals arise out of the same judgment, therefore, these appeals are being decided by a common judgment. 2. On 14-10-1992, at about 10.00 a.m., P.W.l Prem Chand Nyola, Circle Officer, Dholpur, received a secret information from some Mukhbir that some person has come by a bus from Agra and is carrying Charas in a small white tin-box. On receiving this information, PW 1 Prem Chand Nyola proceeded towards Jaggan Chauraha, Dholpur, and, also, directed the In-charge of Police Station, Kotwali, Dholpur, on wireless to reach Jaggan Chauraha with the police party. PW 4 Kailash Chand Meena, S.H.O., along with the other police personnels, wept to Jaggan Chauraha and found the accused-appellant carrying a tin-box in his hand. The accused was stopped by Prem Chand Nyola. Prem Chand Nyola, in the presence of two Motbir witnesses, viz. PW 7 Krishna Kumar and PW 8 Vishan Swaroop, took search of the accused and of the tin-box carried by him. On search of the tin-box carried by the accused, it was found containing 5.500 kgs. of Charas. Two samples of 30 grams each were taken from the recovered Charas and the samples as well as the remaining Charas were sealed. Thereafter the police party came to Police Station, Kotwali, Dholpur, where the samples and the remaining Charas were deposited with PW 2 Asha Ram, H.C., who was the Incharge of the Malkhana of the Police Station and the F.I.R. was registered. From the Malkhana, the samples were taken by PW 5 Rajendra Singh for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, where the samples were deposited and on F.S.L. examination it was found as Charas. From the Malkhana, the samples were taken by PW 5 Rajendra Singh for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, where the samples were deposited and on F.S.L. examination it was found as Charas. The prosecution, in support of its case, examined eight witnesses. The learned Special Judge, after trial, held that the prosecution has proved the case against the accused beyond reasonable manner of doubt. The learned trial Court, therefore, convicted and sentenced the accused-appellant for the offence under Section 8/20(b) of the Narcotic Drugs and Psychotropic Substances Act, as stated above. It is against this judgment dated 8-11-93, that the accused-appellant has preferred these two appeals. 3. It is contended by the learned counsel for the appellant that in the present case the compliance of the provisions of Sections 42,50 and 57 of the Act has not been made. According to the learned counsel for the appellant, neither the report, which Mr. Prem Chand Nyola received from the Mukhbir, was recorded by him in the Roznamcha of the Police Station nor a copy of the same was sent to his immediate officer superior as is required under Section 42(2) of the N.D.P.S. Act. The investigation report was, also, not sent immediately as is required under Section 57 of the Act and the appellant was, also, not informed that if he so likes she could be searched in the presence of a gazetted officer or the nearest Magistrate. Non-mentioning of this fact in the memo that the accused was given an option, clearly shows that the compliance of Section 50 of the Act was not made. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the compliance of all the aforesaid provisions of the N.D.P.S. Act was made, by the investigating agency and there is no contravention of any of the provisions of the Act and, therefore, the judgment passed by the learned lower Court, convicting and sentencing the accused-appellant, does not require any interference. (4) I have considered the submissions made by the learned counsel for the parties. (4) I have considered the submissions made by the learned counsel for the parties. (5) Section 42(1) of the Act provides that any empowered officer, if he has reasons to believe from The personal knowledge or from the information given to him by any person and taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between Sunrise and Sunset, may enter into and search any such building, conveyance or place. Sub-section (2) of Section 42 provides that where an officer takes down any information in writing under Sub-section (1) or records his grounds of belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate officer superior. PW 1 Prem Chand Nyola, in this case, neither recorded the secret information received by him nor he sent the copy of the same to his immediate officer superior. As the search, in the present case, was not made from building, conveyance but was made from a public place, therefore, the provisions of Section 42 of the Act are not applicable and the present case is covered by the provisions of Section 43 of the Act. Section 43 of the Act does not envisage any of such conditions. As the provisions of Section 42 of the Act are not applicable in the present case, therefore, the contention, raised by the learned counsel for the appellant, is devoid of any force. 4. The next contention, raised by the learned counsel for the appellant is that the provisions of Section 50 of the Act have not been complied with. Section 50 of the Act provides that when any officer, duly authorised under Section 42 of the Act, is about to search any person under the provisions of Sections 41, 42 or 43 of the Act, he shall, if such person so likes, take such person, without any delay, to the nearest Magistrate or any gazetted officer mentioned under Section 42 of the Act. It has been held by the Supreme Court in the case of: The State of Punjab v. Balbir Singh, 1994 (3) SCC 299 : 1994 Cr.L.R.(S.C.) 241 that Section 50 of the Act affords a valuable right on the person to be searched in the presence of a Magistrate or a gazetted officer if he so requires and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until he can produce him before such gazetted officer or the Magistrate. It has further been held by the Supreme Court that the failure to provide that option to the accused vitiates his conviction. The Hon'ble Supreme Court, in the case of The State of Punjab v. Balbir Singh (supra), specifically held that the proviso to Section 50 of the Act is mandatory and the non-compliance thereof would, thus, vitiate the conviction.It was, therefore, obligatory on the part of the investigating officer Mr. Prem Chand Nyola to have informed the accused-appellant regarding his right as envisaged under Section 50(2) of the Act. This mandatory requirement of the Act has not been complied with by the investigating officer and before the search of the appellant was made, he was not given any option as to whether he desired to be searched in the presence of a gazetted officer or a Magistrate as envisaged by Section 50 of the Act. The non-compliance of this mandatory provision, thus, vitiates the conviction. 5. The next contention, raised by the learned counsel for the appellant is that the compliance of Section 57 of the Act has not been made and the appellant, therefore, deserves to be acquitted on this count alone. Section 57 of the N.D.P.S. Act provides that whenever any authorised person makes any arrest or seizure under the Act, he shall, within forty-eight hours of the arrest or the seizure, make the report of such arrest or seizure to his immediate officer superior. This contention of the learned counsel for the appellant is devoid of any force as the information, as required under Section 57 of the Act, was sent by the investigating officer to his immediate officer superior. This contention of the learned counsel for the appellant is devoid of any force as the information, as required under Section 57 of the Act, was sent by the investigating officer to his immediate officer superior. Moreover, the question regarding non- compliance of the provisions of Section 57 of the Act has been raised for the first time in the appeals and no foundation has been laid before the trial Court regarding the non-compliance of Section 57 of the Act. It has been held by the Hon'ble Supreme Court in the case of: The State of Punjab v. Balbir Singh (supra) that Section 57 of the Act is not mandatory and unless a prejudice is caused to the appellant by the non-compliance of this provision, the conviction and the trial is not vitiated. The appellant has failed to show any prejudice that has been caused to him. 6. Thus, as there is a complete non-compliance of the provisions of Section 50 of the Act in the present case, which is mandatory in nature, the conviction and the sentence, passed by the learned trial Court against the accused-appellant, deserve to be quashed and set aside. 7. In the result, the appeals, filed by the accused-appellant, are allowed. His conviction and sentence for the offence under Section 8/20(b) of the Narcotic Drugs and Psychotropic Substances Act, passed by the learned trial Court, are quashed and set aside and the accused-appellant is acquitted of this offence. He is in jail and be set-forth at liberty if he is not required in any other case.Appeal allowed. *******