JUDGMENT : P.C. Naik, J. - The appellant was charged for an offence punishable u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') for being in possession of five packets of heroin weighing 2.500 ml. On being convicted and sentenced, he has filed this appeal. 2. On 1-7-1991, PW 3 the Sub-Inspector of Excise received information regarding peddling of narcotic substances and while on patrol duty at Narasinghballava Patna on Puri-Konark Road, he detained the accused on suspicion that he was peddling narcotic substances. At that time PW 1 an A. S. I. of Excise Department was also on patrol duty along with PW 3. Both of them gave personal search to the witnesses and thereafter asked the accused that if he so desired, he could be searched in the presence of a Gazetted Officer. The accused declined. Thereafter, he searched the accused and in the process five small packets (pudras) of powdery substance were recovered. On weighment it was found that each sealed packet contained 500 miligrams. From the odour PW 3 could know that the substance was brown sugar. A seizure list was prepared on the spot, con-tents whereof were read over and explained to the accused who thereafter affixed his signature thereon. The accused and the seized articles, which were kept in a sealed cover, were produced before the Sub-Divisional Judicial Magistrate, Purr, on 2-7-1991. The SDJM opened the seal, drew out sample of 500 miligrams from the total seized articles of 2.5 grams, kept it in a separate cover and sealed the same. The balance 2 grams were also sealed by the SDJM and kept in the Court Malkhana under chalan Ext. 3. On the same day, the matter was reported to the Deputy Commissioner of Excise. A sample of the seized articles was sent to the D. T. L. by the SDJM, Puri as per Ext.4. The report Ext. 5 of the Deputy Drugs Controller and Chemical Examiner, Orissa, dated 23-9-1991 shows that the powder sent for analysis was brownish grey in colour and it was brown sugar (Diamor-phine). Accordingly, a P. R. was submitted before the SDJM, Puri. 3. The report Ext. 5 of the Deputy Drugs Controller and Chemical Examiner, Orissa, dated 23-9-1991 shows that the powder sent for analysis was brownish grey in colour and it was brown sugar (Diamor-phine). Accordingly, a P. R. was submitted before the SDJM, Puri. 3. To prove its case, prosecution examined three witnesses, namely, PW 1 the A. S. I. of Excise who deposed regarding the recovery and seizure of the contraband articles from the possession of the accused, PW 2 an independent witness who turned hostile and PW 3 the Sub-Inspector of Excise who stated about receiving the information basing whereupon he detained and searched the accused. The seized articles were produced before the Court and were marked M. Os. I to V. Ext. 1 the seizure list, Ext. 2 the paper slip affixed to the seized article, Ext. 3 the property challan, Ext. 4 the forwarding report to the Chemical Examiner and Ext. 5 the report of the Chemical Examiner are the documents proved on behalf of the prosecution. 4. The case of defence is one of denial. 5. The learned First Additional Sessions Judge, Puri disbelieved the defence and accepted the prosecution case. Accordingly, the accused was held guilty of an offence punishable u/s 21 of the Act and was sentenced to undergo the minimum sentence prescribed, i. e. rigorous imprisonment for ten years and to pay a fine of Rs. 1,00, COO/-, in default, to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence, as aforesaid, the appellant has filed this appeal. 6. Relying on the decisions of this Court reported in (1994) 7 OCR 820. Gopal Reddy v. State, and (1995) 8 OCR 399, Netrananda Pradhan v. State of Orissa, the learned counsel for the appellant/accused submits that as there was non-compliance with the mandatory provisions contained in Section 50 of the Act, the order of conviction and sentence cannot be sustained. On the other hand, the learned Additional Standing Counsel states that as an offer to be searched by a Gazetted Officer was made to the accused which was declined by him the search of the person of the accused by PW 3 cannot be said to be illegal and hence no prejudice can be said to have been caused to the accused. He further submits that the evidence on record is convincing and sufficient to uphold the order of conviction. 7. He further submits that the evidence on record is convincing and sufficient to uphold the order of conviction. 7. With regard to compliance of Section 50 of the Act, PW 3 the Sub-Inspector of Excise, who had detained and searched the person of the accused, in his deposition says thus : "......I gave my personal search to the witnesses and the accused there. I also took personal search of the witnesses. Then J asked the accused if he is desirous of being searched in presence of a Gazetted Officer to which ha declined." PW 1, who had accompanied PW 3, states thus : "......He also asked the accused if he wants to be searched in presence of a Gazetted Officer to which he replied in negative." This, according to the learned counsel for the appellant, is non-compliance with the mandatory provision contained in Section 50 of the Act which provides that an offer is to be made to the accused to be searched by a Gazetted Officer or a Magistrate. He accordingly submits that this is sufficient to nullify the conviction. In the case reported in (1994) 7 OCR (SC), 1994(I) OLR327 State of Punjab v. Balbir Singh and Ors., the apex Court has held that the provisions contained in Section 50 of the Act to be mandatory. The Court has observed : "......In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to Inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to 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-worththanless 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 by the authorised officer informing him. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right." Relying on this decision, in Gopal Reddy's case (supra), a learned single Judge of this Court has observed : "......Both the alternatives have to be indicated to the person who is to be searched. Indication of one of the alternative choices does not conform to the mandatory requirements and is, therefore, in violation of Section 50......" Accordingly, in that case, the order of conviction was set aside, A partial offer, i. e. to be searched by a Gazetted Officer and non-mention of the fact that he could be searched by a Magistrate has also been held to be non-compliance with the mandatory provisions of Section 50 of the Act by another learned single Judge of this Court in Netrananda Pradhan's case (supra). 8. Reference may also be made to the decision of the apex Court in the case of Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala wherein it is held that it is the duty of the Police Officer to give option to the person as to whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged by Section 50 of the Act. The apex Court has further observed that the failure to provide that option to the accused vitiates his conviction. 9. In view of the decisions referred to above, it has to be held that there was non-compliance with the mandatory provisions contained in Section 50 of the Act which has vitiated the action. Accordingly, the Criminal Appeal is allowed, the order of conviction and sentence passed by the First Additional Sessions Judge, Puri, against the accused in S. T. Case No. 5/385 of 1992-91 is set aside, the accused/appellant is acquitted of the charge and he be set at liberty forthwith if his detention is not required in connection with any other case. Final Result : Allowed