Judgment 1. This appeal is directed against the judgment of conviction and sentence passed by 2nd Additional Sessions Judge, Sitamarhi, on 6.5.1992 in Sessions Trial No. 303/90 by which he convicted this appellant under Sections 20 and 23 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as N.D.P.S. Act) and sentenced him to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1,000,00/-, in default, to undergo rigorous imprisonment for a further period of 3 years, under each count with the direction that both the sentences shall run concurrently. 2. The prosecution case, as mentioned in written report (Ext. 9) is that on 5.8.1990, P.W. 1 Shashank Bhushan, Custom Inspector along with P.W. 3 Ram Sundar Pardesi, a custom constable, P.W. 4, Buland Akhtar, Havildar, P.W. 6, Ram Yad Singh, another custom constable and one M. Alam were making routine checking of the passengers at Sitamarhi Railway Station. Further case of the prosecution is that when 90 Dn. Passenger train arrived at Sitamarhi Rly. Station from Narkatiaganj side, in course of checking they entered in a two-tier sleeper coach in which this appellant was travelling and when he was asked to open the suit-case, which he was carrying, firstly he was reluctant to open it and then later when he opened the suit-case only few clothes were found in it. The checking party suspected that a false chamber was fixed with screw in the bottom of the suit-case and thereafter he was detained and a detention memo was issued to the Assistant Station Master, Sitamarhi Railway Station. Prosecution case is that the chamber of the suit-case was opened with the help of screw driver and 2.5 Kg. of Charas of 3rd country origin was recovered from that suit-case which was seized in presence of Jagdish Sah (P.W. 2) and Manoj Kumar Singh (P.W. 9). A Panchnama was also prepared and statement of accused was also taken in which he confessed his guilt that he had been engaged as a carrier by one Munna of Village Lauria to carry and deliver the seized Charas to one Raju of Kasai Tola, Gorakhpur. The accused was brought to Custom Office and was produced before the Superintendent of Customs, Muzaffarpur for interrogation, as the Superintendent of Custom, Sitamarhi was on leave. The accused was brought to Custom Office and was produced before the Superintendent of Customs, Muzaffarpur for interrogation, as the Superintendent of Custom, Sitamarhi was on leave. He was interrogated by Shri S. N. Roy (P.W. 5), Superintendent of Custom, Muzaffarpur and then he was taken back to Sitamarhi where he was detained in the Customs Office. The case of the Prosecution is that at about 4.30 a.m. on 6.8.1990 this appellant was allowed to go to latrine with hand-cuff in his one hand but by breaking the window of the latrine this appellant escaped away regarding which a written report was submitted to Sitamarhi Police Station on the basis of which Sitamarhi PS. Case No. 222/1990 was registered. On 18.8.1990 this appellant was re-arrested from his village and was brought to Customs Office, Bettiah where his written confessional statement was recorded in presence of the Superintendent of Customs, Bettiah and other independent witnesses. On 19.8.1990 he was brought to Muzaffarpur Customs Office and from there he was taken to Sitamarhi under escort and was again in-"terrogated by K. P. Sinha (P.W. 10) regarding his escape from custody. 3. A complaint petition was filed on 8.10.1990, the Chief Judicial Magistrate took cognizance and charges under Sections 20 and 23 of N.D.P.S. Act were framed against the appellant, and after trial he was convicted and sentenced as aforesaid. 4. The defence as gathered from suggestions put to P.Ws. and the statement of the appellant-accused appears to be that he has been falsely implicated in this case and that confessions were obtained under coercion and threat. 5. In support of its case the prosecution examined 10 witnesses, out of whom P.W. 4, Buland Akhtar, P.W. 6, Ram Yad Singh and P.W. 9, Manoj Kumar Singh were tendered from cross-examination. P.W. 2, Jagdish Sah is a seizure list witness. He proved the signatures, Exts. 9 to 9/4. P.W. 1, Shashank Bhushan is the Customs Inspector who stated that from the hidden chamber of the suit case belonging to this appellant, 2.5 Kg. Charas was recovered. This was reported by seizure list witness P.W. 2. Another seizure list witness Manoj Kumar Singh (P.W. 9) was tendered for prosecution. P.W. 3, Ram Sundar Pardesi, the Customs Constable also supported the prosecution case regarding recovery of Charas from the suit-case of this appellant. Charas was recovered. This was reported by seizure list witness P.W. 2. Another seizure list witness Manoj Kumar Singh (P.W. 9) was tendered for prosecution. P.W. 3, Ram Sundar Pardesi, the Customs Constable also supported the prosecution case regarding recovery of Charas from the suit-case of this appellant. P.W. 5 is Som Nath Roy, Superintendent of Customs, who interrogated this appellant and stated that this appellant confessed that he was carrier taking that Charas to Gorakhpur for delivery to one Raj, as per direction of Munna, who had engaged him for that purpose. P.W. 7, Ganesh Paswan is on the point of re-arrest of this appellant from his village. P.W. 8, Rafiuddin Siddiki is the then Superintendent of Customs, Bettiah, who stated that after re-arrest this appellant was brought to Bettiah, Customs Office where he confessed his guilt. P.W. 10 is Kamakhya Pd. Singh, the Superintendent of Customs of Sitamarhi, who interrogated this appellant after his re-arrest. The recovered Charas was sent to the Government Opium and Alkaloid Works, Gazipur for examination report by forwarding memo at Ext. 6. The required report of the chemical examination is Ext. 7. It is reported that the sample sent for examination was Charas within the meaning of N.D.P.S. Act, 1985. 6. Learned Counsel for the appellant raised a point that mandatory Rrovision, as contained in Section 50 of I.D.P.S., Act, was not complied with by the raiding party and that the appellant was not given any option for being searched in presence of any senior officer. He placed reliance on a decision in Saiyed Mohd. Saiyad Umar Saiyed v. State of Gujarat, 1995 AIR SCW 1852 in which it was held thus: "Having regard to the object for which the provisions of Section 50 have been introduced into the N.D.P.S., Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or Magistrate, there is no room for drawing a presumption under Section 114, IIlustration (a) of the Indian Evidence Act, 1872... Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that the was entitled to demand that the search of carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection as the law gave him and must find that the possession of illicit articles under the N.D.P.S., Act was not established." 7. From perusal of Ext. 10, the written report or from the evidence of any of the witnesses including complaint Shashank Bhushan (P.W. 1), Customs Inspector it does not appear that the appellant was informed about his right to be searched in presence of the senior officer. Learned Counsel for the State fairly conceded that conviction of the appellant in absence of compliance of mandatory provisions under Section 50 of N.D.P.S., Act cannot be maintained, as held in the case reported in AIR 1995 SC 1157 , Mohinder Kumar v. State of Goa. 8. In the result, we find and hold that for non-compliance of mandatory provisions, as contained in Section 50 of N.D.P.S., Act, the conviction of this appellant cannot be maintained. It is accordingly set aside and this appeal is allowed. The appellant, who is in custody, should be released forthwith, if not wanted in any other case.