JUDGMENT - Mrs. R.P. DESAI, J. :---The appellant was charged for the offences under sections 22 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985. By his judgment and order dated 19th May, 1994 the IIIrd Additional Sessions Judge, Nashik found the appellant guilty for the offence under section 22 of the said Act. The learned Sessions Judge sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-. In default, the appellant was to suffer rigorous imprisonment for three years. He was acquitted of the offence punishable under section 27 of the said Act. Being aggrieved by the said order of conviction and sentence, the appellant has preferred the instant appeal. 2.Shortly stated, the prosecution case is that the appellant-accused was working as Jail Guard in Central Prison, Nashik Road. On 2nd October, 1993 he entered the Central Prison, Nashik Road at 8.20 a.m. to attend to his daily duty. At this time, his search was taken by the Guards who were at the gate of the prison. The prosecution story further goes on to say that one Bhilaji Bapuji Wagh who was in-charge of the duty in connection with jail security of Nashik Road Central Jail, received confidential information that the accused was possessing contraband articles. He, therefore, reported the matter to Senior Jailor Shri Durge. Pursuant to it, the appellant-accused was called and taken to Zadti room. He was searched there. He was found to be in possession of three packets containing Ganja. The Jail authorities lodged F.I.R. at the Nashik Road Police Station, in connection with possession of Ganja by the accused. Pursuant to the said F.I.R., the police along with the panchas came to Zadti room. Personal search of the accused was conducted in the presence of panchas. Accused was found in possession of three packets containing Ganja. A panchanama to that effect was made. The police took the accused to the Police Station and lodged a complaint. In pursuance of the complaint, the police registered the offence at C.R. No. II 1015 of 1993 under sections 22 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985. After completition of the investigation, charge-sheet came to be filed in the Court. The police took the accused to the Police Station and lodged a complaint. In pursuance of the complaint, the police registered the offence at C.R. No. II 1015 of 1993 under sections 22 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985. After completition of the investigation, charge-sheet came to be filed in the Court. 3.To appreciate the submissions made on behalf of the appellant as well as on behalf of the State, it is necessary to quote the charge framed by the learned Sessions Judge against the accused. The material portion of the charge is as under :- "That you accused on 2-10-93 at about 8.20 p.m. in front of Main Gate, Central Prison, Nashik Road, were found in possession of dry Ganja amounting to Rs. 150/-, without any valid licence, and in contravention of the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, and thereby committed an offence p.u.s. 22 and 27 of the said Act, and within my cognizance." A bare reading of the material portion of the charge indicates that it was the specific case of the prosecution that on 2nd October 1993 at about 8.20 a.m. in front of Main Gate, Central Prison, Nashik Road, the accused was found in possession of dry Ganja amounting to Rs. 150/-. 4.In support of its case, the prosecution examined as many as seven witnesses. The prosecution first examined P.W. 1 Ganesh Kale who is a panch witness. He has deposed about the personal search of the accused and finding of Ganja on the person of the accused. He has deposed about drawing of the relevant panchanama Ex. 6. The prosecution has then examined one Shamlal Chagan Bhagure P.W. 2 who was working as Jailor at Central Jail, Nashik, who speaks about the personal search of the accused taken at the gate at 8.20 a.m. in the morning of 2nd October 1993 by Jail Naik Bargaje. He has also deposed about the personal search of the accused in Zadti room. He has stated that when the accused removed his banian, they saw three packets containing Ganja concealed at the back of his under-belt. P.W. 3 is Bhilaji Bapuji Wagh was entrusted with the job of collection of confidential information from the prisoners and reporting it to the Senior Jail Officers. He has stated that when the accused removed his banian, they saw three packets containing Ganja concealed at the back of his under-belt. P.W. 3 is Bhilaji Bapuji Wagh was entrusted with the job of collection of confidential information from the prisoners and reporting it to the Senior Jail Officers. He has stated that on 2nd October, 1993, he received secret information that accused had contraband articles on his person. He reported the said fact to Senior Jailor Shri Durge. The prosecution has then examined P.W. 4 Rafiq Maniyar who was at the relevant time working as Zadti Amaldar at Nashik Road Central Jail. He has stated that on 2nd October, 1993 Jailor Wagh told him that the accused had brought some contraband with him and this fact should be reported to superior officer Mr. Durge, that he went along with Mr. Wagh to Mr. Durge and the information was conveyed to Mr. Durge. He further stated that Mr. Durge asked him to call Kharat Subhedar. He accordingly called Kharat Subhedar. Mr. Durge then asked Kharat to bring the accused. Accordingly, the accused was brought to Mr. Durge. Thereafter, Rafiq Maniyar, Kharat and Bhagure took the accused to Zadti room as directed by Mr. Durge. In Zadti room, under instructions from Durge, Rafiq Maniyar asked accused to remove his clothes. Accused accordingly removed his shirt and pant. He showed the plastic packets to them. Thereafter, Mr. Durge reported the matter to Superintendent Davane and Davane in turn instructed Mr. Bhagure to inform the police. The prosecution has then examined Deoram Davane, Superintendent of Nashik Central Prison. Mr. Davane has stated that after coming to know from Senior Jailor Durge that the accused was possessing contraband articles, he personally went to Zadti room and enquired with the accused as to what he was possessing. Accused told him that he was possessing Ganja. Davane confirmed that he asked Bhagure to inform the police. Davane has also stated that as per the Jail Manual, personal search of Jail Guards is to be taken at the time of their entry. The prosecution has then examined Pradip Deshmukh, A.P. I. Nashik Road Police Station. P.W. 6 Deshmukh, amongst other things, has given details about the manner in which personal search of the accused was taken. Davane has also stated that as per the Jail Manual, personal search of Jail Guards is to be taken at the time of their entry. The prosecution has then examined Pradip Deshmukh, A.P. I. Nashik Road Police Station. P.W. 6 Deshmukh, amongst other things, has given details about the manner in which personal search of the accused was taken. P.W. 7 Chunilal Pardeshi is the last witness who has deposed about handing over of the seized packets to the Chemical Analyser at Aurangabad. 5.At the outset, one thing must be stated that whereas the prosecution has come out with a story that on 2-10-1993 at about 8.30 a.m. in front of main gate, Central Prison, Nashik, the accused was found in possession of Ganja, a fact which is also reflected in the charge framed by the learned Sessions Judge, the evidence adduced by the prosecution is not consistent with it. P.W. 2 Shamlal Bhagure, the Jailor, has clearly stated in his evidence that at 8.20 a.m. Jail Naik Bhargaje had taken personal search of the accused at the time of his entry in Central Jail, Nashik Road. It appears that at 8.20 a.m. no contraband was detected on the person of the accused. P.W. 3 Bhilaji Wagh has also accepted in his evidence that as per rule full personal search of all the Jail Constables is required to be taken at the gate. P.W. 4 Rafiq Maniyar who was working as Zadti Amaldar has stated that it was his duty to check and carry out personal search of each employee of the Jail when they enter the Jail premises and make entry accordingly in the register. He has stated that on 2nd October, 1993 he carried out personal search of each employee carefully, however, he had not carried out personal search of the accused. The personal search of the accused was carried out by Bhargaje. He further stated that Bhargaje was doing his duty properly and had taken the search very carefully. If what these witnesses state is true, then one fact must be accepted that at 8.20 a.m. in the morning, the accused was not found in possession of any contraband articles despite thorough search. P.W. 4 Rafiq Maniyar says that Bhargaje was very much on duty at the Central Jail. Nashik. The prosecution has not chosen to examine Bhargaje. If what these witnesses state is true, then one fact must be accepted that at 8.20 a.m. in the morning, the accused was not found in possession of any contraband articles despite thorough search. P.W. 4 Rafiq Maniyar says that Bhargaje was very much on duty at the Central Jail. Nashik. The prosecution has not chosen to examine Bhargaje. 6.The next stage of the prosecution story is the search of the accused in Zadti room. In this connection, the prosecution has examined Shamlal Bhagure, Jailor working at Central Jail, Nashik. Bhagure has stated that at about 10.30 a.m. Senior Jailor Durge asked him to call the accused. Accordingly he called the accused. Bhagure along with Senior Jailor Durge, one Subhedar and two Zadti Amaldar Rafiq and Bhargaje took the accused to Zadti room. Under instructions of Bhagure, P.C. Bhargaje asked the accused to remove his shirt. Accordingly, the accused removed his shirt and banian. They saw three packets kept at the back of the under-belt of the accused. As against this, P.W. 4 Rafiq Maniyar has stated that Durge asked him to call Subhedar Kharat. He called Kharat as per Durge's instructions. Durge then asked Kharat to bring the accused. Kharat brought the accused to him. Durge then asked Kharat and Bhagure to take the accused to Zadti room. Rafiq Maniyar has further stated that in Zadti room Durge asked him to remove the clothes of the accused. Accordingly, Rafiq Maniyar asked the accused to remove his clothes. As per the instructions of Rafiq Maniyar, accused removed his shirt and pant and he himself showed the said plastic packets to Durge, Kharat and Bhagure. When asked whether Bhargaje had taken the personal search of the accused in Zadti room, Rafiq Maniyar has clearly stated that Bhargaje did not even enter Zadti room and that he took the personal search of the accused. Jail Superintendent P.W. 5 Deoram Dhavane has also in his evidence stated that personal search of the accused was taken by Zadti Amaldar Maniyar. Thus there appears to be contradiction in the evidence of the prosecution witnesses on the material aspect as to who took the personal search of the accused in Zadti room. Jail Superintendent P.W. 5 Deoram Dhavane has also in his evidence stated that personal search of the accused was taken by Zadti Amaldar Maniyar. Thus there appears to be contradiction in the evidence of the prosecution witnesses on the material aspect as to who took the personal search of the accused in Zadti room. It appears, therefore, that while the prosecution has come out with a case that on 2nd October, 1993 at about 8.30 a.m. in front of the main gate the accused was found in possession of dry Ganja, the evidence adduced by the prosecution does not support this case and there are material contradictions in the evidence of the prosecution witnesses which shakes the very foundation of the prosecution story. 7.Mrs. V.L. Palav who appears for the appellant-accused has amongst other things, contended that the prosecution has failed to prove that there is compliance of provisions of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. She has stated that under section 50 it was necessary for the officer to ask the accused before carrying out his search whether he wished to be searched in the presence of a Gazetted Officer or in the presence of a Magistrate. Mrs. Palav urged that the evidence adduced by the prosecution does not show that the concerned Police Officer had asked the accused whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. Mrs. Palav stated that since the provisions of section 50 are mandatory, non compliance thereof will be fatal to the prosecution case. She heavily relied on the judgments of the Supreme Court in the case of (State of Punjab v. Balbir Singh)1, reported in A.I.R. 1994 S.C. 1872, in the case of (T.P. Razak @ Nagappan Razak v. State of Kerala)2, reported in 1996 S.C.C.(Cri) 57 and in the case of (Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat)3, reported in 1995(3) S.C.C. 610 . Mrs. Palav took us to the evidence of panch witness Ganesh Kale. Ganesh Kale has stated that A.P.I. Deshmukh asked the accused in his presence whether his personal search was to be taken in the presence of a Magistrate. Mrs. Palav contended that Ganesh Naik does not say that A.P.I. Deshmukh asked the accused whether he wanted to be searched in the presence of a Gazetted Officer. Ganesh Kale has stated that A.P.I. Deshmukh asked the accused in his presence whether his personal search was to be taken in the presence of a Magistrate. Mrs. Palav contended that Ganesh Naik does not say that A.P.I. Deshmukh asked the accused whether he wanted to be searched in the presence of a Gazetted Officer. She then took us the evidence of A.P.I. Deshmukh P.W. 6. A.P.I. Deshmukh has stated thus :- "I had asked him the contents in the pudies. He told that the contents of pudies are Ganja. I had asked the panchas to verify the contents of polythene packets. The contents were visible. They also verified the contents of it by breaking the corner of all the three polythene packets found that three polythene packets were containing Ganja. Then I weighed contents of all the three packets. Each packet was containing 22 gms. 20 gms. and 18 gms. I had sealed all the three pudies by putting wrapper. I had obtained the signature of panchas on all the three wrappers of Ganja and put my signature. The packets now shown to me are the same. They are articles 1, 2 and 3. Before weighing the pudies Ganja and sealing it, I had asked the accused whether he wants to take the personal search of him in presence of the Gazetted Officer. He said, no." It appears, therefore, that A.P.I. Deshmukh asked the accused whether he wants to take his personal search in the presence of a Gazetted Officer after Ganja was seized. A.P.I. Deshmukh also does not categorically state that he asked the accused whether he wanted to be searched in the presence of a Magistrate. It is clear, therefore, that A.P.I. Deshmukh has failed to follow the mandatory provisions of section 50 of the Act. Mr. Borulkar, the learned A.P.P., however, contended that in the panchanama and the complaint which are contemporaneous documents it is stated that the accused was in fact asked whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate, and therefore, there is compliance with the provisions of section 50 of the said Act. Mr. Borulkar, the learned A.P.P., however, contended that in the panchanama and the complaint which are contemporaneous documents it is stated that the accused was in fact asked whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate, and therefore, there is compliance with the provisions of section 50 of the said Act. He stated that, in the circumstances, omission on the part of the officer to mention whether he had asked the accused whether the accused wanted to be searched in the presence of a Magistrate or a Gazetted Officer would not be fatal to the prosecution case. We have, therefore, carefully perused the panchanama Ex. 6 as also the complaint to find out whether section 50 could be said to have been complied with at least on the basis of the said two documents. The said documents contain a general sweeping statement that the police asked the accused in the presence of panchas whether he was to be searched in the presence of a Gazetted Officer or a Magistrate. There is no specific reference to the concerned Police Officer Viz. A.P. I. Deshmukh. Similar statement is found also in the complaint. Therefore, it may not be possible to place total reliance on the said documents particularly when the Police Officers' evidence falls short of the requirement. Considering the evidence of panch witness Kale and A.P.I. Deshmukh it must be said that in the instant case the mandatory provisions of section 50 have not been complied with. Therefore, it may not be possible to place total reliance on the said documents particularly when the Police Officers' evidence falls short of the requirement. Considering the evidence of panch witness Kale and A.P.I. Deshmukh it must be said that in the instant case the mandatory provisions of section 50 have not been complied with. Relying on the decisions of the Supreme Court in the case of State of Punjab v. Balbir Singh, reported in A.I.R. 1994 S.C. 1972 and in the case of Saiyad Mohd, Saiyad Umar Saivad v. State of Gujarat reported in 1995(3) S.C.C. 610 and other decisions of the Supreme Court we have in our judgment given in (Criminal Appeal No. 53 of 1994 decided on 10th June, 1996)4, held as follows :- "(a) that the provisions of section 50 of the said Act are mandatory in nature and failure to comply with the said provisions would vitiate the trial, (b) that it is the duty of the empowered or the authorised officer to inform the accused who is about to be searched as to his right and option under section 50 of the said Act, to be searched in the presence of a Gazetted Officer or a Magistrate; (c) that if the accused exercises such an option and chooses one of the two, the ultimate choice would be always with the Officer incharge; (d) that whether section 50 of the said Act is complied with or not has to be established by the prosecution by leading cogent evidence and no presumption of any nature can be raised by the Court in the absence of such material that, it being an official Act, under section 114(e) of the Evidence Act it would be presumed that the official act was done properly and (e) that from the record itself it must appear whether the accused was made aware of his right under section 50 of the Act or not. In other words, the record must itself clearly show that such a compliance had in fact taken place." 8.In view of the above, it must be held that the prosecution has failed to prove that section 50 of the Act was complied with. Resultantly, the order of sentence and conviction will have to be set aside. In other words, the record must itself clearly show that such a compliance had in fact taken place." 8.In view of the above, it must be held that the prosecution has failed to prove that section 50 of the Act was complied with. Resultantly, the order of sentence and conviction will have to be set aside. It may be stated here that apart from non-compliance of the mandatory provisions of section 50 of the said Act even otherwise there are a number of lacunae in the prosecution case. We have already dealt with the material contradictions on the major aspect of the prosecution story as to exactly at what time the search of the accused was taken and as to who conducted the personal search of the accused in Zadti room. We are also not very happy with the manner in which the personal search of the accused was taken. It is significant to note that whereas it is contended by the prosecution that the weighing scale and sealing material was taken in the Jail for the purpose of search, there is no mention of the same in Ex. 15/1 to 4 which is the Jail register where the necessary entries in respect of persons and things coming inside and going outside the Jail on a particular date are made. It is significant to note that P.W. 4 Rafiq Maniyar in his evidence has stated that in the said register as per practice entries of all articles taken inside the prison are made. Maniyar has even stated that entries regarding newspapers, ladder, bakery articles etc. also used to be made in the said register. If that was so, there is no reason why the weighing scale and sealing material do not find place in the said register. Although from the said document it can be said that the presence of panchas is established, we are doubtful as to whether the search was in fact conducted in the manner in which the prosecution wants us to believe it was conducted because of the absence of mention of weighing scale and sealing material in the said register. Although from the said document it can be said that the presence of panchas is established, we are doubtful as to whether the search was in fact conducted in the manner in which the prosecution wants us to believe it was conducted because of the absence of mention of weighing scale and sealing material in the said register. We have already pointed out hereinabove that there is an infirmity in the charge framed by the learned Sessions Judge inasmuch as what is sought to be conveyed to the accused is that on 2nd October, 1993 at about 8.30 a.m. in front of main gate, Central Prison, Nashik, he was found in possession of dry Ganja. The evidence adduced by the prosecution shows that it is not 8.20 a.m. in the morning that the accused was found to possess dry Ganja and not at the main gate, but it is at about 11.00 a.m. in the morning in Zadti room he was found in possession of dry Ganja. Mrs. Palav contended that this defect in the charge has caused prejudice to the accused. As against this, Mr. Borulkar contended that under section 464 of the Code of Criminal Procedure, if the Court of Appeal is of the opinion that failure of justice has in fact been occasioned, it may in the case of an omission to frame a charge order that a charge be framed and that the trial be recommenced and it may in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. He also relied on section 222 of the Criminal Procedure Code. However, since we are of the view that there is a failure to comply with the mandatory provisions of section 50 of the said Act, in the facts of the instant case it will not be necessary to deal with the aforesaid submission made by Mr. Borulkar. There is yet another glaring defect in the impugned judgment and order of conviction which was fairly pointed out by Mr. Borulkar, the learned A.P.P. Mr. Borulkar pointed out that the learned Sessions Judge has found the accused guilty for the offence under section 22 of the Narcotic Drugs and Psychotropic Substances Act. Mr. Borulkar. There is yet another glaring defect in the impugned judgment and order of conviction which was fairly pointed out by Mr. Borulkar, the learned A.P.P. Mr. Borulkar pointed out that the learned Sessions Judge has found the accused guilty for the offence under section 22 of the Narcotic Drugs and Psychotropic Substances Act. Mr. Borulkar contended that it was the case of the prosecution that the accused was found in possession of Ganja and in this view of the matter the learned Sessions Judge could not have sentenced the accused to suffer rigorous imprisonment for ten years as under section 20 of the said Act the accused could have been convicted with rigorous imprisonment for a term which may extend to five years and could also be liable to pay a fine which could extend to Rs. 50,000/-. It was, therefore, improper on the part of the learned Sessions Judge to sentence the accused for rigorous imprisonment for ten years. The learned Sessions Judge seems to have lost sight of section 20 of the said Act. 9.In the result, the appeal succeeds. The appellant-accused be released forthwith unless otherwise required. Appeal allowed. *****