JUDGMENT S.P. Kulkarni, J- This appeal is preferred against the judgment of conviction and sentence recorded by the 5th Additional Sessions Judge. Nagpur in holding both the appellant Nos. 1 and 2 guilty under Section 21 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act. 1985 and each of them was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 Lac in default each one was directed to undergo rigorous imprisonment for a period of one year. 2. The few facts which attracted the search and discovery of brown sugar allegedly possessed by the two appellants were that on 16-5-1992 Police Sub Inspector Mohd. Faheem Choudhari attached to the Crime Branch. Nagpur received an information at about 9.25 a.m. at Golibar Chowk of the Nagpur City that in front of Risaldar Akhada near the electric transformer on Timki to Mominpura Road of the city two persons were indulging into sale of brown sugar. Giving intimation about the information received by him, he conveyed the same to the Assistant Commissioner of Police Shri Paraskar on phone, who eventually directed P.S.I. Choudhari to conduct the raid. Thereafter a writing was prepared by the P.S.I. as regards the information received by him and the said writing was further intimated to the above said Assistant Commissioner of Police. 3. On the background of this. P.S.I. Choudhari then called as usual the panch as informed them about the task which he wanted to perform in raiding the two appellants in connection with possession of brown sugar and also took the police staff. Along with the raiding party. Police Inspector Mahure attached to the Timkl Police Chowky was also taken to the spot. The rest of the allegations were about they raiding the spot they observing the two appellants in front of Risaldar Akhada then the raiding party accosting the accused persons and then introducing themselves together with the panch as to the appellants. The appellants were further informed about the prior information received by the Police against them as regards possession of brown sugar and their intention to take the personal searches of the appellants. The appellants were further informed about the prior information received by the Police against them as regards possession of brown sugar and their intention to take the personal searches of the appellants. It is pertinent to note even from the allegations as they were made and as it could be further stated by us during the course of this judgment even on the strength of the evidence that was collected by the raiding party that having informed the accused about the search they informed the two appellants that Police Inspector Shri Mahure who was himself the Gazetted Officer was also present with them and thereafter the usual course of action took place viz. of accosting the accused taking their search. seizure of brown sugar from each of them to the extent of 800 and 700 Miligrams respectively in small packets which were discovered and seized. It is not necessary for us to refer to the further details as regards the procedure followed during the investigation as regards drawing of seizure memo separation of brown sugar, Samples, sealing of the samples etc. 4. The appellants were put on the trial for the contravention of the above said provisions on the strength of the basic allegations that in contravention of law they were found in possession of 800 Miligrams and 700 Miligrams respectively the quantity of brown sugar. There was also reference to the small packets, which they had prepared and kept with them. During the trial the prosecution examined five witnesses in support of its case; The learned trial Judge accepted the evidence of the panch and the P.S.I. Choudhari who conducted the raid and came to a conclusion that the offences charged against the appellants stood proved. 5. While challenging the said convictions and sentences before us, the learned Advocate appearing for the appellants raised a moot question regarding compliance of Section 50 of the N.D.P.S. Act. According to the learned Advocate the raid in question was pursuant to a 'prior information' received by the Police and that as required by Section 50 of the said Act, none of the two appellants were given an option under Section 50 as to whether the search and seizure against them should be conducted by the raiding officer himself or in the presence of Gazetted Officer or a nearest Magistrate as required by Section 50 of that Act. The learned Advocate for the appellants. Therefore, contended that it is a settled position of law that Section 50 of the N. D. P. S. Act is a mandatory provision and strict compliance of the same has to be observed. According to him, as taken for granted presence of P.I. Mahure is no compliance of Section 50 of the N.D.P.S. Act inasmuch as the accused was not asked as to whether he would like to be searched in the presence of nearest Gazetted Officer or a Magistrate. 6. Since the submissions advanced before us centered round this question, which appears to us to be a mixed question of law and facts we also heard the learned Additional Public Prosecutor representing the State who contended that P.I. Mahure was already one of those Gazetted Officers who were mentioned in Section 42 of the N.D.P.S. Act. He was eligible to satisfy the requirement of Section 50 and since he was already accompanying the raiding party the provisions of Section 50 of the N.D.P.S. Act should be considered in the facts and circumstances of this case as duly complied. According to him even if the accused were to be specifically asked about. What Section 50 of the N.D.P.S. Act prescribes there could be two answers either that the search should be conducted by the raiding officer or that it should be conducted in the presence of a Gazetted Officer or a Magistrate. The learned Additional Public Prosecutor therefore contended that the Gazetted Officer who was qualified under Section 50 of the N.D.P.S. Act was already present. If the appellants were to make a choice for a Gazetted Officer since the raid itself was conducted in the presence of Gazetted Officer. Section 50 of the N.D.P.S. Act should not be considered to have been violated. He further urged on the basis of some of the settled decisions of the Supreme Court that so far as the Gazetted Officer or a Magistrate are concerned it is the choice of the prosecuting agency and not of the suspects to say as to in whose presence out of these public servants suspects should be searched. According to the learned Additional Public Prosecutor. According to the learned Additional Public Prosecutor. Therefore, Section 50 of the N.D.P.S. Act in the facts and circumstances of this case should be considered to have been duly complied and the sole contention advanced on behalf of the appellants that Section 50 of the N.D.P.S. Act was violated should be rejected. 7. Before adverting to the facts. we would like to mention the settled position of law as is available as regards Section 50 of the N.D.P.S. Act. In the case of State of Punjab v Balbtr Singh1. it was pronounced that Section 50 was a mandatory provision. It was obligatory on the part of the empowered or authorised officer to inform the suspects that if so required, he would be produced before the nearest Gazetted Officer or a Magistrate and the intended search would be conducted in the presence of such Officer or Magistrate. What was further observed in that case was that it was 'imperative' on the part of the Officer to 'inform' the person, of the above right, and if he failed to do so, it amounted to violation of the requirement of Section 50 of the N.D.P.S. Act. Now it cannot be debated that when a person is searched under the N.D.P.S. Act, he must have been duly aware of his right before the search commences and that. It could be done only if the Authorised Officer informed him of the said right undeniably possessed by a suspect. It is not necessary for us to over-emphasise the importance of the obligation on the part of the prosecuting agency to comply with the provisions in its true spirit and a corresponding right created in favour of the person accused under the N.D.P.S. Act as regards his 'right of information'. In respect of this though the position as regards evidence available under illegal search can never be considered to be inadmissible but nonetheless the Court has to apply its mind and to come to an. objective satisfaction that in spite of an illegal search as to the possession and discovery of any contraband article, if the Court records its satisfaction, discovery and seizure can still be considered to be a proved fact and a conviction can be based thereon. objective satisfaction that in spite of an illegal search as to the possession and discovery of any contraband article, if the Court records its satisfaction, discovery and seizure can still be considered to be a proved fact and a conviction can be based thereon. However, inspite of our repeated query it could not be answered whether prosecuting agency is absolved of its imperative obligation to give an option to the accused under the N.D.P.S. Act as contemplated by Section 50. In other words, it does not appear to us to be a matter of mere implication but there has to be a specific stage, a consciousness in the prosecuting agency as regards its obligation, that obligation has to be discharged by it in specifically asking the accused and if the accused 'so requires' with an understanding that the right of information which he possesses was being offered to be exercised by him. We do not feel that by merely keeping a Gazetted Officer present at the time of raid; the provisions of Section 50 of the N.D.P.S. Act should be deemed to have been complied, even if factually, no option is specifically given to the accused, to duly inform him of his right and to duly ascertain if exercise of right is required by him. Giving of such option cannot be said to have been by implication, complied with. We are afraid, both on the factual position as presented before us and also from the settled position of law, to take a view that even if no such option is given, the prosecution could be said to have been exempted of its imperative obligation to ask the accused about his choice by keeping a Gazetted Police Officer present irrespective of the requirement. Such a view on the plain reading of Section 50 of the N.D.P.S. Act and in the light of the various cases decided by the Supreme Court is not possible to be taken by us. 8. On facts two circumstances appear to be very blameworthy. The first is that in its zeal in complying with the provisions of Section 50, the prosecuting agency seems to have taken P.I. Mahure, who happens to be the Gazetted Officer, with them. Secondly inspite of carefully going through the evidence of panch PW3 Hemraj and the evidence of the Authorised Officer like PW 5 Mohd. The first is that in its zeal in complying with the provisions of Section 50, the prosecuting agency seems to have taken P.I. Mahure, who happens to be the Gazetted Officer, with them. Secondly inspite of carefully going through the evidence of panch PW3 Hemraj and the evidence of the Authorised Officer like PW 5 Mohd. Faheem Choudhary, there is nothing to indicate that the option as contemplated by Section 50 of the N.D.P.S. Act to which we have referred above was as a fact given. We therefore are very clear in taking a view that by merely keeping the Gazetted Police Officer present at the time of the raid and then further conducting the raid without informing the accused about his right of information. Section 50 could be deemed to have been complied with. Both these witnesses have clearly stated in their evidence that after reaching the spot the accused were informed about the information received by the Police their intention to raid and search the accused and at that time the raiding party introduced itself in which P.I. Mahure was also introduced as a Police Officer holding a gazetted post. Therefore on facts it must be made very clear that there is no evidence of any of the prosecution witnesses that any of the appellants were made aware about their right of choice under Section 50 of the D.P.S. Act and any of the appellants specifically after having become aware about it exercised such option and then P.I. Mahure being himself present. the compliance of Section 50 of the N.D.P.S. Act could be said to have been duly done. We find. on facts that P.I. Mahure has not been examined by the prosecution although he was carefully taken at the time of the raid. The same amount of care which should have been in fact taken when the entire proceeding was to culminate into a fair trial P.I. Mahure was not examined. We therefore do not have the advantage to ascertain as to the manner in which the P.I. Mahure was taken to the spot as to the so-called factual compliance of Section 50 of the N.D.P.S. Act in his presence and. therefore in the absence of any such responsible evidence coming from P.I. Mahure. We therefore do not have the advantage to ascertain as to the manner in which the P.I. Mahure was taken to the spot as to the so-called factual compliance of Section 50 of the N.D.P.S. Act in his presence and. therefore in the absence of any such responsible evidence coming from P.I. Mahure. it further becomes I difficult for us to launch upon uncalled for discovery as to whether by implication a choice is deemed to have been given to the appellant and thus the provisions of Section 50 of the N.D,P,S act could be said to have been duly complied. We find on the strength of the evidence and the allegations, reaching any such conclusion quite unsafe not proper. 9. In view of the settled position of law to which we have referred in brief as above and, the factual scrutiny which presents an infrerence before us that an option as contemplated under Section 50 of the N.D.P.S. Act was not given to any of the appellants. The statutory obligation to inform the appellants of their right u/s 50 of the Act was not discharged. Whether the appellants were desirous of requiring the option to be exercised by them after they were thus made aware has not been done. There is a gross breach of a statutory and important provision under Section 50 of the Act. In our view this failure to observe Section 50 of the Act amounting to its violation on this count is sufficient to upset the impugned convictions and sentence. It is not necessary to either discuss the rest of the evidence or to examine the other findings of the trial Court but to come to a conclusion that convictions in this case cannot be sustained on the above discussed ground. 10. In the result the appeal will have to be allowed and the conviction and sentence as recorded against the appellants will have to be set aside and instead we direct that both the appellants shall stand acquitted of the offences charged against them under Section 21 read with 29 of the N.D.P.S. Act. Since they are in jail we further direct that they shall be set at liberty forthwith if not required in any other case. Appeal allowed. 1. (1994) 3 S.C.C.299.