JUDGMENT R.K. Batta, J. - The appellant was tried for possession of 418 grams of charas without having any legal documents under Section 20(b)(ii) of the N.D.P.S. Act, 1985 (hereinafter called the said Act). The appellant had pleaded not guilty and the prosecution had examined five witnesses in support of the charge. The said five witnesses are P.W. 1 Mahesh Kaissare, Jr. Scientific Officer in the Office of Food and Drugs Administration who had analysed the charas sample which was forwarded to him; P.W. 2 Nitin Kesarkar in whose presence the charas in question was recovered from the person of the appellant; P.W. 3 Manohar Joshi, Scientific Assistant in the Crime Branch, C.ID. Panaji in whose safe custody the charas sample was kept and who forwarded the same to the Office of Food and Drugs for analysis; P.W. 4 Naresh Mhamal who was one of the members of the raiding party and P.W. 5 Shirish Thorat who conducted the search and investigated the case. 2. The Special Judge accepted the evidence of the prosecution witnesses and convicted the appellant for possession of 418 grams of charas under Section 20(b)(ii) of the said Act. The appellant was sentenced to suffer Rigorous Imprisonment for ten years and pay a fine of Rs. 1 lakh, in default, to suffer R.I. for two years. The appellant was in custody in connection with this case from 14.12.1994 and, as such, the period of detention from the said date was set off in terms of Section 428, Cr.P.C. This conviction and sentence is challenged by the appellant in this appeal. 3. Learned Advocate Shri J.P. D'Souza, appearing on behalf of the appellant, advanced before us arguments with reference to the law points involved namely, non-compliance of provisions of Section 43(b) and Section 50 of the said Act and also challenged the prosecution case on merits as well. 4. The submissions advanced by learned Advocate for the appellant are that the prosecution has failed to place sufficient evidence on record as to whether the officer conducting search had reasons to believe for conducting such search under Section 43(b) of the said Act. 4. The submissions advanced by learned Advocate for the appellant are that the prosecution has failed to place sufficient evidence on record as to whether the officer conducting search had reasons to believe for conducting such search under Section 43(b) of the said Act. In support of his submission he took JS through the panchanama, evidence of pancha P.W. 2, evidence of P.W. 4 Naresh Mhamal and evidence of the officer conducting search P.W. 5 Shirish Thorat and then submitted that nowhere there is any material to suggest that there were reasonable grounds for believing that the appellant was possessing charas. According to him, merely because the appellant was talking to foreigners and subsequently was found to be nervous, would not justify a conclusion that the officer conducting search had reasons to believe that the appellant had in his possession charas. It was also pointed out by him that none of the witnesses have placed any material on record from which it could be concluded that the appellant was nervous since the state of nervousness can be deduced only from the material on record to justify such conclusion. 5. On this aspect, learned Public Prosecutor Shri Bharne has urged before us that the fact that the appellant was talking to two foreigners at Anjuna beach and on seeing the police party he became nervous would justify reasonable belief of the officer conducting search regarding possession of drugs by the appellant. 6. It is admitted position that the police party had gone for patrolling to Anjuna beach on a day when flea market was being held there. It is also admitted that the police party was not in Uniform. Therefore, in flea market if someone talks to the foreigners, one cannot jump to the conclusion that the talk must be in connection with contraband drugs because in the flea market many articles are sold and people visit the market for sale and purchase of the goods. Secondly, the police party was not in Uniform. When the members of the raiding party who were not in Uniform, approached the appellant, there is no plausible reason as to why in such circumstances the appellant should show any signs of nervousness. Secondly, the police party was not in Uniform. When the members of the raiding party who were not in Uniform, approached the appellant, there is no plausible reason as to why in such circumstances the appellant should show any signs of nervousness. The statement of the witnesses that the appellant was nervous is a conclusion which is derived by them on the basis of some reactions which might have been noticed by them in the appellant. However, no material has been placed on record from which it can be determined as to what were the factors on the basis of which the witnesses had drawn the conclusion that the appellant was nervous. Admittedly, the appellant did not run on seeing the police party approaching him and this was obviously because the police party was not in Uniform. Moreover, solely on the basis of the fact that the appellant was talking to two foreigners and that he was nervous. it cannot be said that there were reasonable grounds to believe that the appellant was in possession of drugs so as to justify the search. In the panchanama as well as in the evidence of all the witnesses examined by the prosecution there is absolutely no reference anywhere as to whether the officer conducting search had reasons to believe that the appellant had committed an offence punishable under Chapter IV of the said Act. Everywhere the expression used is 'suspicion' and 'doubt'. Suspicion is not synonymous with reason to believe, though suspicion may be one of die factors which may contribute alongwith other factors to strengthen the conclusion for reasons to believe. A person can be said to have "reason to believe" a thing, if he has sufficient cause to believe that thing and not otherwise. In Dr. Pratap Singh and others v. Director of Enforcement and others1, the Apex Court has observed that the expression "reason to believe" is not synonymous with subjective satisfaction of the officer. The belief must be held in good faith and it cannot be a mere pretence. Whether there was such reason to believe and whether officer empowered acted in bona fide manner depends upon facts and circumstances of the case and will have a bearing in appreciation of the evidence. The belief must be held in good faith and it cannot be a mere pretence. Whether there was such reason to believe and whether officer empowered acted in bona fide manner depends upon facts and circumstances of the case and will have a bearing in appreciation of the evidence. It has to be borne in mind that in Section 49 of the said Act, the Legislature has used the words "reason to suspect" and not "reason to believe". Therefore, the use of different expression in the two sections (Sec. 42 and Sec. 49) assumes significance and conveys the intention of the legislature in the context. The facts and circumstances of this case do not justify that the officer conducting search, had "reason to believe" that the appellant had committed an offence punishable under Chapter IV. 7. The next challenge which has been advanced by learned Advocate for the appellant is that there has been non-compliance of Section 50 of the said Act. According to him, this section gives valuable right to the accused and the use of the exact words in informing the accused about his right have an important bearing in the matter. It is contended that there is nothing on record to show that the accused was informed that he was to be searched for drugs and for want of the same, the search is vitiated. In support of this contention, reliance has been placed on Sureshkumar Khandelval v. State2. However, we are not able to agree with learned Advocate for the appellant on this aspect that the accused was not informed that he was to be searched for possession of drugs. Pancha P. W. 2 has in fact categorically stated that the accused was told that there was doubt that he possessed drugs. 8. It is further urged by learned Advocate for the appellant that the accused in this case was not informed that he had a right to be searched before Gazetted Officer or Magistrate and that the evidence of pancha clearly shows that the accused had never declined the offer of search before the Gazetted Officer. 8. It is further urged by learned Advocate for the appellant that the accused in this case was not informed that he had a right to be searched before Gazetted Officer or Magistrate and that the evidence of pancha clearly shows that the accused had never declined the offer of search before the Gazetted Officer. In this connection it was also pointed out that the evidence of pancha P,W. 2 does not support the prosecution case that the accused was informed that he had a right to be searched in the presence of Gazetted Officer or Magistrate and that the answers given by the accused clearly show that he had not declined such search being conducted in the presence of Gazetted Officer or Magistrate. On the basis of this evidence of pancha and after placing reliance on the judgment of the Apex Court in State of Punjab v. Balbir Singh3 it is urged that the mandate of Section 50 has not been complied with as a result of which the entire search and seizure is illegal and the trial is vitiated. 9. In this connection, learned Public Prosecutor has urged before us that the evidence on record has to be read as a whole; that the evidence of pancha P.W. 2 cannot be read in isolation but the same has to be read alongwith the evidence of P.S.I. Mhamal the other member of the raiding party as well as P.S.I. Thorat P.W. 5 who conducted the search. The Apex Court in State of Punjab v. Balbir Singh (supra) has made the following observations in this respect "Section 50 lays down that any officer duly authorised under Section 42, who is about to search any person under the provisions of Sections 41, 42 and 43 shall, if such person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and if such requisition is made by the person to be searched, the concerned authorised officer can detain him until he can produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. After such production, the Gazetted Officer or the Magistrate, if sees no reasonable ground for search, may discharge the person. But otherwise he shall direct that search be made. To avoid humiliation to females it is also provided that no female shall be searched by anyone except a female. The words "if the person to be searched so desires" are important 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 creditworthiness 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. 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. When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory." The Apex Court has further held: “……It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact." The sum and substance of the law laid down by the Apex Court is that Section 50 of the said Act gives valuable right to the accused for being searched in the presence of Gazetted Officer or M3gistrate and the accused must be informed that he can be taken for search before a Gazetted Officer or a Magistrate. In a later judgment by the Apex Court which is reported in Raghbir Singh v. State of Haryana4, it has been made clear that the option given to the accused under Section 50 is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or Magistrate. This means that the option which is required to be given by the officer conducting search under Section 50 of the said Act is only relating to the choice as to whether the accused would like to be searched by the officer making the search or he would like to be searched in the presence of nearest available Gazetted Officer, or nearest available Magistrate. Once the accused l1Jakes an option then the choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused as has been pointed out by the Apex Court in the said judgment. These observations were made while concurring with a similar view which was taken in the case of Manohar Lal v. State of Rajasthan5, wherein it was laid down: "..... It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused." 10. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused." 10. In the light of the law laid down by the Apex Court we would now like to determine whether there has been compliance of the mandatory provisions of law contained in Section 50 of the said Act. The star witness of the prosecution in this respect is pancha P.W. 2 who had stated in his examination-in-chief that P.S.I. Thorat had told the accused that search can be taken in the presence of a Gazetted Officer. He has further deposed that the accused told the raiding party that he did not know any Gazetted Officer since he is an outsider and that his search can be taken by the Police. However, in the course of cross-examination he stated that he had heard P.S.I. Thorat using words 'adhikari' or some thing like that in Hindi language which he did not understand and he asked P.S.I. Thorat about it and P.S.I. Thorat told him that the meaning of Hindi expression 'adhikari' was equivalent to Gazetted Officer and Magistrate. He admitted that he had not heard the Hindi words 'adhikari' or something like that before in his life. This evidence of pancha P.W. 2, therefore, shows that he was not even sure as to what was the exact expression used in Hindi that is to say, 'adhikari' or something like that in Hindi language. It is an admitted position that the dialogue with the accused was in Hindi. 11. In the search panchanama (Exh. P.W. 2/A) the only reference is to the Gazetted Officer and there is no reference to the Magistrate for the purpose of compliance of Section 50 of the said Act. P.W. 4 Naresh Mhamal P.S.I. who had written the dictation at the request of P.S.I. Thorat and has stated that even though P.s.1 Thorat had dictated that the accused was informed of his right to be searched before the Gazetted Officer or a Magistrate, he had missed to write the words "or a Magistrate" and that on the same day he had realised of the said omission and told P.S.I. Thorat orally about it. P.S.I. Thorat has a different version to state in this respect. P.S.I. Thorat has a different version to state in this respect. He states that he came to know for the first time that the words "or a Magistrate" was missing in the panchanama after two to three weeks. There is thus considerable doubt as to whether the appellant was ever informed of his right to be searched before a Magistrate. In this respect, we would like to refer to the ruling of the Apex Court in Raghbir Singh v. State of Haryana (supra) wherein the accused was given an option of being searched by the police officer or before a Gazetted Officer. The accused therein had opted to be searched before a Gazetted Officer and he was searched in the presence of Gazetted Officer when opium was found in the bag carried by the accused. The accused was convicted therein by the trial Court and the conviction was confirmed by the High Court. Before the Apex Court it was argued on behalf of the accused/appellant that the accused must be given option of being searched either before a Gazetted Officer or before a Magistrate and if the accused is not told that he can be searched before a Gazetted Officer or before a Magistrate, the mandate of Section 50 cannot be said to have been followed. Relying upon the view taken by the Apex Court in Manohar Lal v. State of Rajasthan (supra), it was held that the option given under Section 50 of the N.D.P.S. Act to the accused is only to course whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or nearest available Magistrate. It was further pointed out that the choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused and, as such, there is no further option of being searched in the presence of a Gazetted Officer or of being searched in the presence of a Magistrate. 12. In view of the above position of law laid down by the Apex Court, the omission of the words "or a Magistrate" in the panchanama by itself would not, therefore, affect the prosecution case. .13. 12. In view of the above position of law laid down by the Apex Court, the omission of the words "or a Magistrate" in the panchanama by itself would not, therefore, affect the prosecution case. .13. Nevertheless pancha P.W. 2, though in his examination-in-chief had stated that the accused was told that search can be taken in the presence of a gazetted officer, yet in Cross-examination he deposed that P.S.I. Thorat was using word 'adhikari' or something like that in Hindi language which he did not understand and P.S.I. Thorat had told him that the meaning of 'adhikari' or something like that was Gazetted Officer or Magistrate. The word 'adhikari' in Hindi means only officer and it does not mean either Gazetted Officer or Magistrate. Thus the evidence of pancha, taken as a whole, does not even support the prosecution case that the accused was informed of his right of being searched even before a Gazetted Officer. Moreover, according to P.W. 2 the accused told P.S.I. Thorat that he does not know any Gazetted Officer since he is an outsider and that his search can be taken by the police. Pancha, P.W. 2, admitted that it was not stated in the panchanama that the accused told that the police may search him and that he does not know anybody here. If that is so, either way, it does not help the prosecution. If the accused had stated that the police may search him as he did not know anybody, the I.O. could have certainly told and explained to the accused that it was not necessary for him to know anybody or Gazetted Officer or a Magistrate and that he could still be taken before a Gazetted Officer or Magistrate for search. We, therefore, find that there is no clear evidence on record to come to the conclusion; firstly on the aspect that the accused was informed of his right of being searched before a Gazetted Officer or a Magistrate and secondly that the accused had categorically declined to avail of the said right. This being the position, it cannot be said that there has been compliance of the mandatory provisions of Section 50 of N.D.P.S. Act. This being the position, it cannot be said that there has been compliance of the mandatory provisions of Section 50 of N.D.P.S. Act. Once we come to the conclusion that there is no compliance of mandatory provisions of Section 50 of N.D.P.S. Act, the seizure and trial is vitiated in view of the law laid down by the Apex Court in this behalf to which brief reference may be made at this stage. In this connection, we would like to refer to the law laid down by the Apex Court in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala6, wherein it was submitted on behalf of the State that even if the search and seizure of contraband is held to be illegal and contrary to the provisions of Section 50 of the said Act, it would still not affect the conviction because the seized articles could be used as evidence of unlawful possession of contraband. In support of this submission, reliance had been placed by the State on the judgment of the Apex Court in Pooran Mal v. The Director of Inspection (Investigation) New Delhi and others7, The Apex Court found that submission was misconceived and the reliance placed on the judgment in Pooran Mal v. The Director of Inspection (supra) was misplaced. The Apex Court pointed out that the judgment of Pooran Mal's case (supra) only lays down that the evidence collected as a result of illegal search or seizure could be used as evidence in proceedings against that party under the Income Tax Act and that judgment cannot be interpreted to lay down that the contraband seized as a result of illegal search or seizure can be used to fasten the liability of unlawful possession of the contraband on the person from whom contraband has allegedly been seized in an illegal manner. The Apex Court emphasised that "Unlawful possession" of the contraband is a sina qua non for conviction under the N.D.P.S. Act and that factor has to be established by the prosecution beyond reasonable doubt. It was, however, pointed out that indeed the contra band is evidence but in the absence of proof, of possession of the same, the accused cannot be held guilty under the N.D.P.S. Act. It was, however, pointed out that indeed the contra band is evidence but in the absence of proof, of possession of the same, the accused cannot be held guilty under the N.D.P.S. Act. Besides this, in Pooran Mal's case (supra) the provisions of Code of Criminal Procedure relating to searches and seizures were made applicable in terms of Section 132(3) of the Income Tax Act, 1961. Insofar as seizure in the case under consideration is concerned, the mandatory provisions of Section 50 of the said Act are applicable. There is settled distinction insofar as consequences of non-compliance of procedural safeguards contained in Sections 100 and 165, Cr. P. C. on the one hand and the procedural safeguards under Section 50 of the said Act. It was pointed out by the Apex Court in Balbir Singh's case (supra) that if a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P. C. fails to strictly comply with the provisions of Sections 100 and 165, Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. How ever, when the police officer having reason to believe that an offence punishable under Chapter IV of N.D.P.S. Act has been committed, carries out search in which the mandatory provision of Section 50 of N.D.P.S Act is not followed, it would not only affect the prosecution case, but the same would vitiate the trial. Whereas if there is no strict compliance of Sections 100 and 165, Cr.P.C., then such search would only amount to irregularity and would not vitiate the seizure or the trial. The Apex Court in T.P. Razak v. State of Kerala8, has reiterated that if there is non-compliance of the mandatory provisions of Section 50 of N.D.P.S. Act, no reliance can be placed on the alleged search on the person of the accused and the alleged recovery of contraband drugs from his possession as a result of which conviction and sentence based upon such recovery has to be set aside. 14. Even on merits, there are material discrepancies in the recovery of charas and the place where recovery was effected and in the light of violation of mandatory provisions of law, we are not inclined to place reliance on recovery. 15. 14. Even on merits, there are material discrepancies in the recovery of charas and the place where recovery was effected and in the light of violation of mandatory provisions of law, we are not inclined to place reliance on recovery. 15. In view of the aforesaid reasons, we are of the opinion that the prosecution case is bound to fail and the appeal accordingly succeeds. The appeal is allowed. The conviction and sentence passed by the Special Judge, Mapusa, vide judgment dated 6th April, 1996 in Special Criminal Case No. 4/95 is set aside. The appellant is ordered to be set at liberty in case he is not required in any other case. Cash of Rs. 720/- which was recovered from the appellant shall be returned to him. Other muddemal property shall stand confiscated and forfeited as ordered by the Special Judge in the said judgment. Appeal allowed. 1. A.I.R. 1985 S.C. 989. 2. 1989(2) G.L.T. 1. 3. JT 994(2) S.C. 108, 4. 1996(2) SCC 201 . 5. JT 1996(1) SC 480. 6. JT 1994 (6) SC 326. 7. 1974(1) SCC 345 . 8. 1995 Supp. (4) SCC 256.