R. D. SHUKLA, J. ( 1 ) THE appeal is directed against judgment and order dated 20-12-93 of the I Addl. Sessions Judge, Neemuch passed in S. T. No. 35/91, whereby the accused-appellant has been convicted under Ss. 8/21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act' ) for being in illegal possession of smack on 28-1-91 in village Junapani at about 5. 30 p. m. and sentenced to R. I. for ten years and fine of Rs. one lakh, in default to further R. I. for two years. ( 2 ) PROSECUTION story in brief is that S. O. Hakumsingh Chouhan (P. W. 10) of P. S. Rampura got an information that the accused-appellant along with his father Jagannath is moving with smack for being sold. As such, he along with constables Arjunkumar (P. W. 3) and Brijbhan Singh proceeded towards the place. P. W. 1 Govindsingh was also taken in the party. The accused-appellant was pillion rider of a motor-cycle which was driven by his father Jagannath. The Police Officer after observing formalities asked that he wants to take search of accused Suresh. The search was taken and 8 packets of smack was found. The same was seized. A report of the matter was sent to the senior officer and the property was kept in Malkhana. Thereafter it was sent for chemical examination. P. W. 9 Sharad Bhatt after examination opined that the aforesaid 8 packets contained opium derivative i. e. diacetlye morphine. After completion of the investigation, the accused-appellant along with Jagannath who was carrying Suresh on the motor-cycle and Tabbu alias Umesh who was said to be the supplier of the smack were prosecuted. They denied the guilt and pleaded false implication. The present accused-appellant pleaded that the police did not take action of the report of theft made by him and, therefore, he made a complaint against the police officer and he has been implicated because of the said complaint. The learned trial Judge, acquitted accused-Jagannath and Tabbu alias Umesh but convicted and sentenced the accused-appellant as above, hence this appeal. ( 3 ) CONTENTION of the learned Counsel for the appellant is that mandatory provisions of Ss. 42, 50 and 57 of the Act have not been complied with and, therefore, possibility of planting of smack because of earlier dispute cannot be ruled out. ( 3 ) CONTENTION of the learned Counsel for the appellant is that mandatory provisions of Ss. 42, 50 and 57 of the Act have not been complied with and, therefore, possibility of planting of smack because of earlier dispute cannot be ruled out. His second contention is that independent witnesses have not been examined and the police officer has failed to give his own search at the time of alleged search and seizure made from the accused-appellant. As against it, learned Counsel for the State submitted that all the formalities have been complied with and the accused was found in possession of opium derivative i. e. diacetyle morphine and has, therefore, been rightly found guilty. ( 4 ) WE have been taken to the evidence on record. P. W. 1 Govindsingh is said to be an independent witness. He has stated that the police officer along with a head constable and a constable was standing on Junapani and Manoti Road. They asked him to watch the proceedings as they are likely to seize smack. He further stated that accused Suresh and his father Jagannath were present there. Thereafter the police officer prepared panchnama Ex. P/1 and took search of the accused-appellant and found 8 packets o1 smack in the pocket of the underwear of the accused-appellant. Thereafter, he prepared report Ex. P/2 and seized motor-cycle vide Ex. P/3. He further identified the packet seized on the basis of the signature on article A. Underwear of the accused-appellant has been marked as article B. He has also stated about the site map having been prepared. During cross-examination, this witness has admitted that the police officer never gave his own search to the accused. He has further stated in para 8 of his statement that the police officer only asked that he wants to take search of the accused and no other statement was made. ( 5 ) AS per requirement of S. 50 of the Act, it is mandatory for the police officer, who is taking search to take person before a Gazetted Officer or a Magistrate and further to inform him as towhether he wishes to be searched by a Gazetted Officer or a Magistrate or volunteers for search to be taken by himself. Though this witness has stated about signature on Ex. Though this witness has stated about signature on Ex. P/1 which appears to be a panchnama for the accused having been informed about his right to be searched in presence of a Magistrate or a Gazetted Officer, but in his statement, he rebuts this fact and states that the police officer only asked about the search of accused being taken. This goes to show that no sincere efforts for informing the accused about his right of search being made in presence of a Gazetted Officer or a Magistrate was made and only a panchnama showing formalities having been observed, has been prepared. ( 6 ) SECTION 50 of the Act deals with steps to be taken by the Police Officer making search and are mandatory. non-compliance of the same is fatal to the prosecution. Reference may be had to a case of Mohinder Kumar v. State of Panaji, Goa, AIR 1995 SC 1157 : (1995 Cri LJ 2074 ). If a person (accused) consents for search being taken by a police officer other than a Gazetted Officer or a Magistrate, then, as far as possible, his consent in writing should be taken. ( 7 ) LEARNED Counsel for the State has drawn attention of this Court to the statement of Constable Arjunkumar (P. W. 3) and Brijbhansingh (P. W. 5) who have stated that Police Inspector Hakumsingh informed the accused about his right of search being taken in presence of a Gazetted Officer or a Magistrate about which the reply of the accused was that he volunteers for search being taken by the police officer. Both these witnesses are the persons under the control of Hakumsingh S. I. They are, therefore, likely to speak as per the documents signed by them. ( 8 ) THE accused has produced document Ex. D2 partially corroborates his contention that he has lodged a report about theft with the police. Ex. D/2 is a copy of the F. I. R. lodged by the accused about theft having taken place in his house. It appears that an offence under Ss. 457 and 380, I. P. C. vide Crime No. 176/90 was registered, Police Officer Hakumsingh failed to state as to what happened to that case. Ex. D/2 is a copy of the F. I. R. lodged by the accused about theft having taken place in his house. It appears that an offence under Ss. 457 and 380, I. P. C. vide Crime No. 176/90 was registered, Police Officer Hakumsingh failed to state as to what happened to that case. Though the accused has failed to produce copy of the complaint made by him to the C. M. and other senior officers, but the document produced by the accused and non-explanation by the police officer shows that the police officer was inimically diposed against the accused. In such a situation, the evidence has to be scrutinised with great caution. This Court scrutinised the evidence and it found noncompliance of S. 50 of the Act. ( 9 ) IT is also surprising that a person who is educated, who has already lodged a complaint in which no action has been taken will normally not volunteer search being taken by that police officer. In normal course of conduct such educated person if he is informed, will definitely insist for search being taken in the presence of a Gazetted Officer or a Magistrate. The Police Officer Hakumsingh could very well take the accused under arrest to a Gazetted Officer or a Magistrate for search being taken, but instead of doing that. he simply prepared panchnama and took search himself. This makes his conduct suspicious. ( 10 ) IN such cases, the police officer is required to faithfully comply with the provisions of the Act. he simply prepared panchnama and took search himself. This makes his conduct suspicious. ( 10 ) IN such cases, the police officer is required to faithfully comply with the provisions of the Act. (i) If the person of the accused is to be searched, he should be taken to a Magistrate or a Gazetted Officer; (ii) Normally, if there is urgency, and the person volunteers for search being taken by the police officer, his consent in writing ought to be taken and then the police officer should collect independent witnesses for watching the proceedings; (iii) Before taking search of the person of the accused, it is also necessary that the police officer should give his own search as well, because packets of smack are so small that it is very easy to plant it; (iv) After search having been made, the wrapper used for sealing the material must contain signatures of all the witnesses; (v) When property is kept in Malkhana, Malkhana number should be noted and the person in-charge of Malkhana should note in the register as to the seal and names of witnesses whose signatures are present on the report. Thereafter record of taking out of the sample from the Malkhana should also be prepared; (vi) If possible, names of witnesses who have signed the wrapper and witnessed the seizure along with the sample seized be sent to the Chemical Examiner, who should on opening the sealed bundle, certify about presence of seal and signatures of witnesses on the wrapper; (vii) It is further necessary that the wrapper should be kept intact to be identified by the witnesses in Court and if these formalities are not observed, objection as to planting of material can always be raised. ( 11 ) THERE may be cases where these formalities may not be necessary as where the contraband articles seized are bulky. In that case, it can be assumed that the police officer must not have been carrying bulky narcotic articles. Similarly, in such cases it can be assumed that normally the police officer will not carry bulk of narcotic articles for planting. But in cases where only a few packets are seized from the person of the accused, it is necessary to take all precautions so that any doubt of possibility of planting or non-observance or non-compliance of mandatory provisions of the Act are ruled out. But in cases where only a few packets are seized from the person of the accused, it is necessary to take all precautions so that any doubt of possibility of planting or non-observance or non-compliance of mandatory provisions of the Act are ruled out. Since the police officer has failed to observe mandatory provisions of the Act, the accused-appellant is entitled to benefit thereof. ( 12 ) AS a result, the appeal succeeds and is allowed. The accused is acquitted of the offence charged. He is in jail. He be set at liberty forthwith if not required to be detained in any other case. Appeal allowed. .