A. S. TRIPATHI, J. ( 1 ) THIS appeal was filed from jail by the appellant, represented by Shri Mukesh Kulshreshtha, Advocate appointed as amicus curiae from the Legal Aid Board, against the judgment and order dated 5-9-1990 passed by the Sessions Judge of Guna convicting the appellant u/s 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act) and sentencing him to undergo ten years R. I. and to pay a fine of Rs. one lac and in default of payment of fine, to further undergo R. I. for one year. ( 2 ) FACTS of the case are that, appellant was alleged to have been carrying opium when he was apprehended at Guna Railway Station on 9-11-1989 at about 3. 55 a. m. from a particular train. On an information received from an informer, the police party led by A. S. I. concerned had searched the bogie concerned. The appellant was traveling along with his real brother. They were taken out from the compartment, search was made and it is alleged that 970 grams of opium was recovered from his possession from a raxine bag kept on his shoulder. Recovery Memo Ex. P/i was prepared by the A. S. I. himself in presence of the two witnesses Mokam Singh and Sitaram. It is mentioned in the recovery memo that when the appellant was apprehended it was found that he was carrying one bag on his shoulder and when searched was made by the ASI before the witnesses, it was found that inside the bag some substance was wrapped in a piece of Lungi, and when it was open at the railway platform, it was found to be opium by mere smell. When grains were separated, 970 grams of opium was found intact. After preparing the recovery memo, samples were prepared and properly sealed and were sent for chemical examination. Report of the chemical examiner was received confirming it be opium. The challan was submitted after investigation and. , appellant was charged u/s 8/18 of the NDPS Act. He pleaded not guilty and was tried. The trial Court examined P. W. 1 Sitaram the witness of recovery, P. W. 2 Mohakamsingh another witness of recovery who was an independent person of the nearby locality, P. W. 3, who was ASI posted at G. R. P. Guna. , appellant was charged u/s 8/18 of the NDPS Act. He pleaded not guilty and was tried. The trial Court examined P. W. 1 Sitaram the witness of recovery, P. W. 2 Mohakamsingh another witness of recovery who was an independent person of the nearby locality, P. W. 3, who was ASI posted at G. R. P. Guna. He is also a witness of recovery and claims to have recovered opium along with Co-Additional Sub Inspector of Police Amar Singh, P. W. 4. P. W. 5 Dr. Arun Kumar Guru is the expert who had done the examination of the sample and confirmed the substance to be opium. P. W. 6 Hoshiyar Singh had conducted the investigation and had handed over to P. W. 7 Punjab Singh Vaishya, who had submitted the charge sheet. The trial Court had examined these prosecution witnesses and assessed the evidence on record and held the appellant guilty u/s 8/18 of the N. D. P. S. Act and convicted and sentenced him as aforesaid. ( 3 ) I have heard Shri Mukesh Kulshreshta learned counsel for the appellant/accused, and Shri M. K. Jam Deputy Government Advocate for the respondent/state and examined the record. ( 4 ) RECOVERY itself is not disputed in so far as the same has been proved by the witnesses Sitaram, Mohkamsingh and recovering officers like Ashok Kumar Dubey and Amar Singh. However, the appellant had stated that he was traveling in the train along with his real brother and they were apprehended by the police at different stations and were then brought to Guna Railway Station, where they have been searched. Recovery of opium has not been admitted by the appellant. He simply admitted that his bag was taken away by the A. S. I. ( 5 ) ON the point of recovery, two independent witnesses have been produced who had confirmed the recovery by the police officer at the railway platform from a bag of the appellant containing certain material and ultimately it was found to be opium. He simply admitted that his bag was taken away by the A. S. I. ( 5 ) ON the point of recovery, two independent witnesses have been produced who had confirmed the recovery by the police officer at the railway platform from a bag of the appellant containing certain material and ultimately it was found to be opium. Therefore, so far as recovery was concerned, the opium was recovered from the possession of the appellant/accused, he had no valid licence for carrying opium with him and therefore, there can be no doubt about recovery and the prosecution witness as could not be disbelieved on this point, and the recovery of opium was rightly found to have been established by the trial court. ( 6 ) LEARNED counsel for the appellant raised a legal point during arguments, that the mandatory provisions of Section 50 of the N. D. P. S. Act have not been complied with and the entire trial had vitiated on that count. ( 7 ) IT was pointed out that the appellant who was apprehended on an information of an informer, from the railway station of Guna. A search was made at the railway platform in presence of number of persons. The appellant was not informed of his right to be searched either before a Magistrate or before a Gazette Police Officer. The search was actually made by the A. S. I. without informing the appellant of his rights. A bare perusal of the recovery memo Ex. P/i shows that the appellant was not at all informed that he had a right to be searched before a Magistrate or before a Gazette Police Officer. Even the searching officer did not take care to even inform the appellant that he can be produced before a gazette police officer who was available at that time in the GRP itself, as is disclosed in the testimony of P. W. 3 Ashok Kumar Dubey. Even the searching officer did not take care to even inform the appellant that he can be produced before a gazette police officer who was available at that time in the GRP itself, as is disclosed in the testimony of P. W. 3 Ashok Kumar Dubey. The search itself was made at the railway station on the bench as mentioned in the recovery memo Annexure P/i. From the recovery memo, it appears that the time of recovery and search, the appellant was not informed of his valuable rights as enjoined on him u/s 50 of the N. D. P. S. Act Moreso, when the recovery is made on the information given by an informer, it is all the more necessary u/s 42 read with Sec. 50 of the N. D. P. S. Act to take necessary precautions in this respect which has totally been ignored by the searching officer as well as by the recovering officer. Further, from the recovery memo it appears that the bag was containing some grains and some straw of some other food product and among huge bulk, on separation, the searching officer had deciphered 970 grams of opium and the same was found to have been in the neap. This also indicates that when a search was to be made in such a raid when narcotic substance was deciphered at the first instance, it is all the more necessary that precaution u/s 50 of the N. D. P. S. ought to have been taken at the earliest opportunity. ( 8 ) SINCE the searching officer failed to comply with the provisions of Section 50 of the N. D. P. S. Act either before the search or even after the search when heaps were separated and 970 grams of opium was recovered from the appellant from his bag which was carrying by him on his shoulder the trial is vitiated. In this way I find that as held by the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujrat, the mandatory provisions of Section 50 of the N. D. P. S. Act have not been followed by the searching officer and therefore, the entire trial had vitiated. In this way I find that as held by the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujrat, the mandatory provisions of Section 50 of the N. D. P. S. Act have not been followed by the searching officer and therefore, the entire trial had vitiated. ( 9 ) IT is also to be noted that after recovery was made no precautions were taken by the Investigating Officer to confirm the same from the independent witnesses that in their presence, actually opium was recovered. Two witnesses Sitaram and Mohakam Singh had stated that some huge heap was recovered and only by smell it was stated at the platform that it may be opium. This by itself is no confirmation by any of the independent witnesses that actually opium was recovered from the heap recovered from the appellant. ( 10 ) IN either way, since the trial had vitiated, the conviction of the appellant cannot be sustained under law. ( 11 ) IN the result, the appeal is allowed. The judgment and order of the trial Court is set aside. The appellant is acquitted of the charge u/s 8/18 of the N. D. P. S. Act. Appellant is in jail. He shall be released forthwith, if not wanted in any other case. Appeal allowed. .