TEJ SHANKAR, J. ( 1 ) ACCUSED-APPELLANTS Ratan Nagar and Roop Narayan Nagar were tried and convicted u/s. 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N. D. P. S. Act) to a term of 10 years R. I. and a fine of Rs. 100000/- and in default of payment of fine they were further sentenced to two years R. I. by Shri Shambhu Singh, the then Sessions Judge Guna on 19. 3. 1990. ( 2 ) THE facts in brief are that on 16. 5. 1989 at 24. 15 hours the Station Officer in charge P. W. 4, Sarvajeet Singh Chehal was informed that two persons were taking illegal opium at bus stand Guna. He entered the information in the general diary copy of which is Ex. P-3 and took with him A. S. I. , M. B. Tiwari, A. S. I. , R. R. Mishra, Deendayal, Constable, P. W. 1, Rambharose, P. W. 2 and others from the Force and proceeded for bus stand Guna. They saw two persons at the bus stand. On enquiry they gave their name as Ratan Nagar and Roop Narayan Nagar. Ratan Nagar had a suit case. When he was asked to open the suit case he took key bunch Article 2 from Roop Narayan and opened the suitcase, Article No. 1. It was found that under the clothes there was a bag Articles containing opium. In the suit case there were articles Nos. 4, 5 and 6. He seized the bag containing opium (Art. No. 3) along with other articles and prepared memo Ex. P-I before P. W. 2, Ram Bharose and P. W. 3, Suresh. He arrested both the accused persons at 10 A. M. vide memo Ex. P-2. He prepared a packet of 50 grams of opium for chemical examination and sealed. The accused persons were taken to police station and an entry in General Diary was made copy of which is Ex. P-4. At 2 P. M. an F. I. R. was lodged. On 22. 5. 1989 the opium was sent for chemical examination to Sagar. Report from Chemical Examiner (Ex. P-7) was received and it was found that the packet contained opium. After investigation charge-sheet was submitted. The accused denied the charge and alleged that both of them had gone to Guna for purchasing some articles. On 22. 5. 1989 the opium was sent for chemical examination to Sagar. Report from Chemical Examiner (Ex. P-7) was received and it was found that the packet contained opium. After investigation charge-sheet was submitted. The accused denied the charge and alleged that both of them had gone to Guna for purchasing some articles. They were sleeping at Satkar Lodge. At about 1 A. M. enquiry was made from them that they had come from Rajasthan and going to Fatehpur. Police personnel took search. From the pocket of Ratan Nagar Rs. 1,000/- and from the pocket of Roop Narayan Rs. 500/- were recovered. The police personnel demanded money to which they refused. They were, thereafter, lodged in police station. There was no recovery. The prosecution examined P. W. 1, Deendayal Sharma, P. W. 2, Rambharose, P. W. 3, Suresh, P. W. 4, Sarvajeet Singh Chehal and relied upon documents Ex. P-I to P-7 and articles No. 1 to 7 in support of their case. The accused persons also entered upon their defence and examined D. W. 1, Suneel Kumar, D. W. 2, Sujansingh and Narayansingh. The learned trial Court after considering the evidence on record and after hearing the parties accepted the prosecution story and convicted and sentenced the accused-appellants as aforesaid. Feeling aggrieved the present appeal has been filed. ( 3 ) THE learned counsel for the appellants argued that the appellants have been falsely implicated. The articles alleged to have been seized were seized according to the case of the prosecution on 16. 5. 1989 but they were sent for chemical examination on 1. 4. 1990. It has not been shown as to where the articles were kept and whether they were in tact or not. Unless it was shown the accused could not be convicted. In this connection he relied upon the case of Balsara1. Lastly it has been urged that there was no compliance of Section 50 of the N. D. P. S. Act which is mandatory and its non-compliance vitiates the trial. In support of this contention the learned counsel relied upon State of Punjab v. Balbir singh and Ali Mustaffa Abdul Rehman Moosa v. State of Kerala. Lastly it has been urged that there was no compliance of Section 50 of the N. D. P. S. Act which is mandatory and its non-compliance vitiates the trial. In support of this contention the learned counsel relied upon State of Punjab v. Balbir singh and Ali Mustaffa Abdul Rehman Moosa v. State of Kerala. ( 4 ) THE learned counsel for the State, on the other hand, contended that the prosecution has satisfactorily proved that the alleged recovery of opium was made from the appellants and the recovered article was opium has also been established. He has, however, not been able to show from the record there was compliance of section 50. He contended as there was no prejudice caused to the accused they cannot get any benefit. ( 5 ) INSPITE of the fact that the learned counsel for the appellants attacked the impugned judgment on various grounds it is sufficient to deal with the legal argument advanced before me by the learned counsel for the appellant relating to the provisions of section 50 as the contention of the learned counsel is fully supported by the two decisions of the Apex Court referred to above. In this view of the matter other submissions need not be, gone into. In order to dispose of this contention we have to look to the provisions of section 50 as well as to the evidence in this regard. Section 50 of the N. D. P. S. Act confers a valuable right on the persons to be searched in the presence of a gazetted officer or a Magistrate if they so require. It reads as follows:50. Conditions under which search of persons shall be conducted (I) When any officer duly authorised u/s. 42 is about to take 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 ). (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 anyone excepting a female. There was a controversy with regard to the interpretation of the words if the person to be searched so desires. This controversy has been set at rest in the aforesaid Balbir Singhs case. It was specifically held by the Apex Court The words if the person to be searched so desires are important. One of the submissions is whether the person who is about to be searched should be himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a gazetted officer or a Magistrate and thereafter the search should be conducted. 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 or 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 to be searched in the presence of a gazetted officer or a Magistrate if he so requires, since such a search would impact much more authenticity and creditworthiness 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. ( 6 ) THIS question also cropped up before the Apex Court in a latter case of Ali Mustaffa Abdul Rehman Moosa v. State of Kerala (supra) and the Honble Court agreed with the above view taken in Balbir Singhs case. ( 6 ) THIS question also cropped up before the Apex Court in a latter case of Ali Mustaffa Abdul Rehman Moosa v. State of Kerala (supra) and the Honble Court agreed with the above view taken in Balbir Singhs case. It was also urged Ali Mustaffas case that the view taken in Balbir Singhts case requires reconsideration but this contention was also not accepted and it was held that there were no compelling reasons for reconsideration of the judgment passed in Balbir Singhs case. Thus, in view of the law laid down in the aforesaid two authorities the settled law is that the provisions of section 50 of the N. D. P. S. Act are mandatory and failure to comply with these provisions vitiates the conviction. The view taken by the learned trial Court mentioned on this point in view of this law is wholly incorrect. Thus, on this legal ground the conviction and sentence passed by the learned trial Court cannot be sustained, if on facts it is found that the provisions were not complied with. ( 7 ) NOW coming to the question of fact as to whether there was compliance of section 50 or not we have to go through the statement of witnesses examined in the case. The most important witness is P. W. 4, Sarvajeet Singh Chehal who was the Nagar Nirikshak at that time and it was he who got information and arrested the accused. He deposed that he received an information from informant that two persons carrying opium in a suit-case at bus stand Guna. He then collected police personnel named by him in his statement and made an entry in the general diary and proceeded for spot. He found two boys at the bus stand. One gave his name as Ratan Nagar, who had a suitcase. He further stated that Roop Narayan Nagar was standing near Ratan Nagar. After taking keys from Roop Narayan the suit case was opened and opium was recovered from a bag of polithene. He prepared a packet of 50 grams from it as a sample. He got the opium weighed and found that it was 1 kg. He seized the suit-case and got prepared memo Ex. P-I and by A. S. I. Tripathi. After taking keys from Roop Narayan the suit case was opened and opium was recovered from a bag of polithene. He prepared a packet of 50 grams from it as a sample. He got the opium weighed and found that it was 1 kg. He seized the suit-case and got prepared memo Ex. P-I and by A. S. I. Tripathi. There is nothing in his statement to show that he eyer complied with the provisions or section 50 of the N. D. P. S. Act. The learned counsel for the State has also not been able to show from his statement that there was any compliance of the said provision. Thus, it is evidently clear that the proviso of section 50 were not complied with. He did not afford an opportunity to the accused persons as required under the law. The Apex Court in the aforesaid authorities have held that the provisions are mandatory and failure to comply with these provisions vitiates the conviction. The conviction and sentence without complying the provisions cannot be sustained. ( 8 ) THE other arguments advanced by the counsel for the appellants need not be gone into in view of the fact that there is no compliance of section 50 the N. D. P. S. Act as held above and the order of conviction and sentence cannot be sustained on this solitary ground. The appeal must, therefore, succeed. ( 9 ) THE appeal is allowed. The order of conviction and sentence passed by the learned trial court is set aside and the accused are acquitted of the charges for which they have been tried. They be released forthwith if not required in any other case. Appeal allowed .