TEJ SHANKAR, J. ( 1 ) THIS appeal has been preferred by the accused who has been convicted and sentenced u/s 8/18 of the Narcotics 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. 1 lac or in default of payment of fine 6 months R. I. ( 2 ) SHORTLY narrated the facts are that P. W. 5, Narendra Mohan Singh Chandel, received information on 21-4-1990 at 4-16 P. M. that a person was coming to Guna by 189 Up Kotah-Damoh train. He made an entry, vide ex. P-6, went to the Railway Station. He informed constable Dikshit and Ramshankar about the information received from the informant. He asked Ashok Dube to call Laxminarayan and Liyakat Ali. When the train reached plot form no. 1 he saw that from Coach no. 28281 a person came down who had wrapped himself from a bed sheet. He made enquiry and enquired as to whether he wanted to give search to him or some officer be call whereupon he agreed to give search. Search was taken and Panchnama Ex. P-4 was prepared which was got signed by him as well as by witnesses. Opium was recovered from him which was got weighed and Panchnama Ex. P-2 was prepared. He also prepared two sample packets of 50 gm. each. The remaining opium was kept in separate plastic bags and the cloth was sealed. On reaching the police station he made an entry at 5. 15 P. M. , Ex. P-7. The recovered article was deposited in the Malkhana. He gave intimation to the Judicial Magistrate Guna and sent the sample for chemical examination. After receipt of report charge-sheet was submitted. The accused was tried u/s 8/18 of the N. D. P. S. Act. After taking necessary evidence and hearing parties and considering the material on record the learned trial Court convicted and sentenced the accused as aforesaid. Hence this appeal. ( 3 ) LEARNED Counsel for the appellant contended that there is no compliance of s. 50 of the N. D. P. s. Act which is mandatory. His contention is that s. 50 makes a provision as to how search has to be taken. Hence this appeal. ( 3 ) LEARNED Counsel for the appellant contended that there is no compliance of s. 50 of the N. D. P. s. Act which is mandatory. His contention is that s. 50 makes a provision as to how search has to be taken. The Apex Court in State of Punjab v. Balbir Singh, held that the provisions are mandatory and their non-compliance affects the prosecution case and vitiates the trial. According to the case of the prosecution itself there is nothing on record to show that it was enquired from the accused appellant as to whether he desired to be searched before a Magistrate. The evidence adduced is to the affect that enquiry was made whether he wanted to be searched by a gazetted officer. There is nothing to show as to whether it was also enquired whether he wanted to be searched by a Magistrate. He placed reliance upon (Gopal Reddy v. State) Thus the trial is vitiated. ( 4 ) ON the other hand, the learned Counsel for the State Contended that there is sufficient compliance of s. 50 inasmuch as the evidence on record clearly goes to show that at the time of search enquiry was made as to whether he required to be searched by a gazetted officer and a Magistrate includes a gazetted officer. ( 5 ) THE only point to be determined is as to whether there has been a compliance of 5. 50 of the N. D. P. S. Act or not. According to the learned Counsel for the appellant the evidence on record clearly shows that the officer, who conducted search; made enquiry with respect to gazetted officer only. There is nothing on record to show that the appellant was also put a question as to whether he desired to be searched before a Magistrate or not. It is also an essential ingredient as held in the case of State of Punjab v. Balbir Singh. (supra) Nothing has been argued by the learned Counsel on merits. There is nothing on record to show that the appellant was also put a question as to whether he desired to be searched before a Magistrate or not. It is also an essential ingredient as held in the case of State of Punjab v. Balbir Singh. (supra) Nothing has been argued by the learned Counsel on merits. ( 6 ) THE provisions of s. 50 have been interpreted by the Apex Court in the aforesaid authority i. e. State of Punjab v. Balbirsingh and it has been held that: Section 50 confers a valuable tight on the person to 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 be the authorised officer informing him. Under the Act wide powers are conferred on the officers and deterrant sentences are provided for the offences under the Act. The Legislate while keeping in view the menace of illicit drug trafficking deemed it to provide for corresponding safeguards to check the misuse of powers thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, section 50 is enacted. 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 5a 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. 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. In the aforesaid provision the mandatory requirement is that the officer making a search as to inform that whether he wanted to be searched before a gazetted officer or a Magistrate and this is a mandatory requirement. In the aforesaid provision the mandatory requirement is that the officer making a search as to inform that whether he wanted to be searched before a gazetted officer or a Magistrate and this is a mandatory requirement. The contention of the learned Counsel for the State is that the evidence on record shows that the officer concerned had made an enquiry with respect to the fact as to whether he desired to be searched before a gazetted officer and he did not claim to be searched before a gazetted officer, rather he agreed to be searched by the officer concerned. A gazetted officer includes a Magistrate as such the mandatory requirement is fulfilled. In this connection it has to be mentioned that the law specifically requires that the concerned officer must inform the accused as to whether he desired to be produced before a gazetted officer or a Magistrate. It, therefore, clearly goes to show that the Legislature never intended to include T1magistrate within the meaning of gazetted officer. Had it been so, there was no necessity of making provision with respect to search before a gazetted officer or a Magistrate separately. It, therefore, means that the Legislature intended that an enquiry should be made with respect to the fact as to whether the accused desired to be searched before a gazetted officer or a Magistrate. In this view of the matter the contention that the gazetted officer includes within its ambit a Magistrate cannot be accepted. The Legislature never uses any word without any meaning. Every word which has been used has its meaning. ( 7 ) A perusal of the material on record shows that three documents were prepared by the officer concerned, namely, Ex. P-1 is Panchnama, the arrest memo. It does not show that the officer concerned made an enquiry as required under the law. It simply shows that search was taken of the accused. The other document is recovery memo, Ex. P-2. It also does not show anything in this regard. The most important document on which reliance has been placed by the prosecution is Ex. P-4. This is a memo of search. In this document it has been mentioned that an enquiry was made from the accused by the Station Officer i. e. the officer concerned as to whether he desired to be searched before him or a gazetted officer. The most important document on which reliance has been placed by the prosecution is Ex. P-4. This is a memo of search. In this document it has been mentioned that an enquiry was made from the accused by the Station Officer i. e. the officer concerned as to whether he desired to be searched before him or a gazetted officer. It does not mention that an enquiry was also made with respect to search before a Magistrate. In his statement as well the officer concerned i. e. Narendra Mohan Singh Chandel has not said that he made enquiry with respect to search before a Magistrate, he reiterated that enquiry was made with respect to search before a gazetted officer, vide para 13 of the statement. Thus, it is amply proved that no enquiry was made from the accused appellant as to whether he desired to be searched before a Magistrate or not. In view of the law laid down by the Apex Court in the aforesaid authority and what has been said above, it is clearly established that it was also mandatory requirement on the part of the officer concerned to have made an enquiry with respect to the fact as to whether the accused desired to be searched before a Magistrate or not. As it was not done, there was only partial compliance of the provision of the law. As said earlier, the whole of the provision of section 50 is mandatory and as such, as it was only partially complied with, the trial is vitiated. A similar view was taken by the Orissa High Court in Gopal Reddy v. State (supra ). In that case the accused was only asked whether he wanted to be taken before a Magistrate. No offer was given to be taken to a gazetted officer. The Court held that it was a partial compliance and did not meet medate prescribed by section 50. The trial was vitiated and conviction was held to be unsustainable. I, therefore, agree with the learned Counsel for the appellant that the accused appellant could not convicted as the compliance of Section 50 was not made. It is rather unfortunate that in the present case where the prosecution has alleged that recovery of sufficient quantity of opium was made even then it goes unpunished on account of the fault of the officer concerned. It is rather unfortunate that in the present case where the prosecution has alleged that recovery of sufficient quantity of opium was made even then it goes unpunished on account of the fault of the officer concerned. It may be observed here that the officer concerned was knowing that he had to make an enquiry as required by section 50 but he did not comply with the provisions of s. 50 as they stand; but partially complied with them. There is, therefore, no option but to allow the appeal and acquit the appellant. ( 8 ) THE appeal is accordingly allowed. The order of conviction and sentence is set aside and the accused appellant is acquitted of the charges for which he has been tried. The recovered article shall be confiscated as directed by the learned Court below. The accused/appellant is in custody. He be released forthwith if not required in any other case. Appeal allowed .