JUDGMENT 1. - The short point on which the appeal is being decided does not require detailed discussion of facts and evidence. According to the prosecution on 8.3.1993, opium was recovered from the possession of the accused-appellant. Thus, he was charged for the offence Under section 8/17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act'). After recording the necessary evidence and hearing both the sides, the learned Special Judge, NDPS Act Cases, Jodhpur vide his order dated 6.11.1993 convicted the accused appellant for the said offence and sentenced him to a rigorous imprisonment for ten years and a fine of Rs. 1,00,000/-. In default of the fine, a further imprisonment for one year was directed. 2. Against this conviction and sentence this appeal has been preferred by the accused-appellant. 3. In this case the provisions of Section 50 of the NDPS Act, have hot been fully complied with. In the case of State of Punjab v. Balbir Singh, JT 1994(2) SC 108 and in the case of Ali Mustaffa Abdul Rahman Mossa v. State of Kerala, 1994 Cr.L.R. (S.C.) 717 and in the case of Sayyed Mohd. v. State of Gujarat, 1995 Cr.LJ. 2662 , it has been laid down by the Supreme Court that the provisions of Section 50 of the NDPS Act are mandatory and non-compliance whereof would vitiate the conviction. In Ali Mustaffa Abdul Rahman Mossa's case, the Apex Court has observed:- "In State of Punjab v. Balbir Singh (supra), it has been held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a Gazetted Officer or of a Magistrate. It was also held that Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction." In Sayyed Mohd. It was also held that Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction." In Sayyed Mohd. v. State of Gujarat , the Supreme Court has observed:- "It is to be noted that under the NDPS Act, punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs and the Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily." Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section. 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case (1994 AIR SC 1802) that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate." From the above observations, it is evident that it is imperative on the part of the officer conducting a search to inform the person to be searched of his right, if he so requires, to be searched before a Gazetted Officer or a Magistrate. 4. 4. It is compulsory that the accused should be given both the option i.e. whether he wanted the search in the presence of Gazetted Officer or in the presence of a Magistrate ? Whether both, the options are not given, the provisions of Section 50 of the NDPS Act, are not fully complied with ? 5. In the case in hand, the search was conducted by Satyaveer Singh, Dy. S.P. (PW 5). Satyaveer Singh (PW 5) has stated that before the search, he asked the accused-appellant as to whether he wanted his search in the presence of any other Gazetted Officer or by himself (PW 5) and when the accused-appellant gave his consent for search by Satyaveer Singh, himself, the search was effected by Satyaveer. From the statement on oath given by Satyaveer Singh (PW 5), it is evident that the alternate option to get him searched in the presence of a Gazetted Officer or Magistrate was not given to the accused-appellant. In the recovery memo (Ex. P.l /2), it has been mentioned that the Dy. S.P. Satyaveer Singh (PW 5) asked the accused before the search as to whether he wanted the search in the presence of a Magistrate or by himself (Satyaveer Singh). Then in the recovery memo, it has been mentioned that the accused-appellant was given an option for search in the presence of a Magistrate. But in his statement on oath before the trial Court, Satyaveer Singh, Dy. S.P. (PW 5) has not stated on oath that the option for search in the presence of Magistrate was given. Thus, there is inconsistency and conflicts in the evidence of Satyaveer (PW 5) given on oath before the trial Court and to recovery memo (Ex. P.l/2). In my opinion, wherein there are inconsistency or conflicts the statement on oath and a memo prepared during the investigation, the statement on oath would prevail and would be preferred. Thus, from the evidence of Satyaveer Singh (PW 5) given on oath, it is evident that the alternate option for search in the presence of a Magistrate was not given. In my opinion, wherein there are inconsistency or conflicts the statement on oath and a memo prepared during the investigation, the statement on oath would prevail and would be preferred. Thus, from the evidence of Satyaveer Singh (PW 5) given on oath, it is evident that the alternate option for search in the presence of a Magistrate was not given. It is, thus, not proved beyond all reasonable doubt that an alternate offer to get the accused-appellant searched in the presence of a Magistrate was given to the accused-appellant and as such the provisions of Section 50 of the NDPS Act have not been fully complied with and on this ground alone, the accused-appellant is entitled to acquittal and the conviction and sentence cannot be upheld and maintained on the doctrine of benefit of doubt. 6. In the result, this appeal is allowed. The conviction and sentence of the accused-appellant is set aside. He is acquitted of the offence Under section 8/17 of the NDPS Act. He shall be released forthwith if not required in any other case.Appeal Allowed. *******