JUDGMENT 1. - By the judgment dated 31.10.94, the Special Judge, Narcotic Drugs And Psychotropic Substances Act Cases, Sri Ganganagar, convicted the accused-appellant for the offence under Section 8/18, Narcotic Drugs And Psychotropic Substances Act, hereinafter referred to as 'the Act' and sentenced him to rigorous imprisonment for ten years and a fine of Rs. one lac. Against the said conviction and sentence, this appeal has been preferred. 2. I have heard the arguments of both the sides. 3. According to the prosecution, on a secret information that the appellant was having opium, the police search party headed by S.H.O. Madan Singh apprehended him and on search, six hundred grams of opium was recovered from his possession. After trial, he was convicted and sentenced as aforesaid. 4. The point that goes to the root of the matter is that as to whether the provisions of Section 50 of the Act have been fully complied with or not? Section 50 requires that before effecting the search, the officer conducting the search has to inform the person to be searched of his right, if he so requires, to be searched before a Gazetted Officer or a Magistrate. 5. In the case of State of Punjab v. Balbir Singh, JT 1994(2) SC 108 , and in the case of Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994 Cr.L.R. (SC) 717 , and in the case of Sayyed Mohd. v. State of Gujarat, 1995 CrLJ 2262 , it has been laid down by the Supreme Court that the provisions of Section 50 of the Act are mandatory and non-compliance whereof would vitiate the conviction. In Ali Mustaffa Abdul Rahman Moosa'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 150 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. " 6. In Sayyed Mohd. It was also held that Section 150 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. " 6. In Sayyed Mohd. v. State of Gujarat (supra), the Supreme Court's observations are : "It is to be noted that under the Narcotic Drugs And Psychotropic Substances Act punishment for contravention of its provisions can extended to rigorous imprisonment for a term which shall not be less than ten years but which may exlerid to twenty years and also to fine which shall not be less than one lac out which at may extend to Rs. 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 Narcotic Drugs And Psychotropic Substances Act shifts the onus of proving his innocence upon the accused; it states that in trials under the Narcotic Drugs And Psychotropic Substances 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 Narcotic Drugs And Psychotropic Substances Act, namely the shifting of the onus to the accused and the severe punishment to which he become 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 Narcotic Drugs And Psychotropic Substances Act, the accused is to be con ducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case (supra) 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. " 7. We endorse the finding in Balbir Singh's case (supra) 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. " 7. From the above observations, it is evident that it is imperative on the pail 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. 8. It is compulsory that the accused should be given both the options i.e. whether he wanted the search in the presence of a Gazetted Officer or in the presence of a Magistrate? Where both the options are not given, the provisions of Section 50 of the Act are not fully complied with. 9. In the case in hand, P.W. 5 Madan Singh is the S.H.O., who, on a prior information given by mukhbir about the appellant carrying opium, constituted a police search party under him, which intercepted the appellant. P.W-5 has stated that before search, he asked the appellant as to whether he wanted the search in the presence of a Magistrate and that the appellant replied in negative. He (P.W. 5), then, searched him (appellant) and the opium was recovered from his possession. The recovery memo Ex. P.1 also shows that before search, only one option i.e. whether he wanted the search in the presence of a Magistrate, was given to the appellant. Thus, from the evidence of PW-5 and Fx. P 1, it is quite evident that both the options i.e. whether he, (appellant) wanted the search in the presence of a Gazetted Officer or in the presence of a Magistrate, were not given to him. He was given only one option of search in the presence of a Magistrate. 10. The learned Public Prosecutor has argued that the officer conducting the search i.e. P.W-5 was the Circle Inspector and, as such, he was Gazetted Officer and, therefore, the option of search before a Gazetted Officer was not necessary to be given. 11. He was given only one option of search in the presence of a Magistrate. 10. The learned Public Prosecutor has argued that the officer conducting the search i.e. P.W-5 was the Circle Inspector and, as such, he was Gazetted Officer and, therefore, the option of search before a Gazetted Officer was not necessary to be given. 11. There is nothing on record to show that P.W-5 was the Circle Inspector when the search was taken and that the Circle Inspector was the Gazetted Officer but even if for the argument's sake, it is taken that P.W. 5, the officer conducting the search, was the Gazetted Officer, the question would, then, arise as to whether the Gazetted Officer of the search party can perform the task as required by Section 50 of the Act. 12. Section 50(3) of the Act provides that the Gazetted Officer or the Magistrate before whom the person to be searched is brought, shall, (a) if he sees reasonable grounds for the search, direct that the search be made or (b) when he sees no reasonable ground for the search, forthwith discharge the person to be searched. The Gazetted Officer of the search party would obviously normally not exercise the second option because after relying on the information of mukhbir, he has required that person to be searched. A member of the raiding party, even if he is a Gazetted Officer cannot himself do the dual task of being a party to the search and arrive at a satisfaction that search is warranted or not. Therefore, the Gazetted Officer performing the function under Section 50 of the Act has to be different from the one, who is a member of the raiding party or who is the officer conducting the search. It is the duty of the Gazetted Officer intending to take search on suspicion, to inform the accused that he has a right to be taken to a Gazetted Officer or a Magistrate for search. He cannot be exempted from giving the option with regard to the search before a Gazetted Officer other than himself. 13. It is the duty of the Gazetted Officer intending to take search on suspicion, to inform the accused that he has a right to be taken to a Gazetted Officer or a Magistrate for search. He cannot be exempted from giving the option with regard to the search before a Gazetted Officer other than himself. 13. In the case of Prabhu Lal v. State of Rajasthan, 1995 Cr.L.R. (Raj.) 813 , this court has held that Section 50 of the Act requires that search should be made in the presence of a Magistrate or a Gazetted Officer and the search should not be by the Magistrate or Gazetted Officer himself before whom the accused is brought and that when the search has been made by the Dy. S.P. himself instead of directing that the search may be made by the S.H.O., the provisions of Section 50 of the Act have not been fully complied with because Section 50 provides that the Gazetted Officer or the Magistrate shall, if he sees no reasonable ground for search, forthwith discharge him otherwise he shall direct that the search be made in his presence. Therefore, even if the officer conducting the search (P.W-5) was a Gazetted Officer and the accused appellant was given only one option of taking before the Magistrate and the other option of search before the Gazetted Officer was not given, the provisions of Section 50 of the Act cannot be said to have been fully complied with. Partial non-compliance of Section 50 of the Act vitiates the conviction. 14. From the above discussion, it is evident that the provisions of Section 50 of the Act have not been fully complied with and on this count alone, the conviction is not sustainable. 15. In the result, the appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the offence under Section 8/18 of the Act. He shall be set at liberty forthwith, if not required in any other case.Appeal allowed. *******