K. D. SHAHI, J. Appellant Naresh Kumar, son of Dub resident of Gali No. 11, Mohalla Mangal Singh Kot, Ludhiana (Punjab), has preferred this appeal against his conviction and sentence under Section 20 read with Section 8-C of N. D. PS. Act convicting and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac and, in default of payment of fine, to undergo further two years R. 1. Both the sentences were to run concurrently. 2. The brief facts of the case are: that on 20-12-1988 at Platform of N. E. Railway Station, Charbagh, Lucknow search of lug gage of suspected passengers of Train No. 505 Dn. was organised by the Customs Preventive party, Lucknow. During the course of search for the luggage offender Naresh Kumar was intercepted and on search for his bag made before the wit nesses ten kgs. of Nepali Charas was recovered from his possession. It is said that the confession of accused Naresh Kumar, was recorded and he had confessed that it had been purchased by him from Nepal. 3. Sri R. R. Tripathi, Customs Inspec tor had filed the complaint. He was also one of the member of the raiding party. It is said that the sample of the recovered charas was sent for chemical examination on 16-1-1989 and it was found to be Charas. The accused was charged for the offences punishable under Section 20 read with Section 8-C of N. D. RS. Act and also for the charge under Section 33 of the aforesaid Act. Charges were read over and explained to accused Naresh Kumar in Hindi. He pleaded not guilty and claimed to be tried. 4. In proof of his case the prosecution examined P. W. 1 R. K. Tripathi, Inspector Customs Department who had narrated the prosecution story and had stated that at the Platform and N. E. Railway Station, Charbagh, Lucknow accused Naresh Kumar was intercepted and on search of his Jhola 10 kg. Nepali Charas worth Rs. 80,000/- was recovered. He further stated that he enquired from Naresh Kumar whether he wished to be search in presence of some other Officer or he be search by P. W. 1 R. K. Tripathi himself. The exact words are: "maine poochha tha ki tumhari talashi ruai loo ya kisi anya Adhikari ke samne dena chahte ho. " 5. 80,000/- was recovered. He further stated that he enquired from Naresh Kumar whether he wished to be search in presence of some other Officer or he be search by P. W. 1 R. K. Tripathi himself. The exact words are: "maine poochha tha ki tumhari talashi ruai loo ya kisi anya Adhikari ke samne dena chahte ho. " 5. This witness also proved the seizure memo and the complaint. R. K. Tripathi, on being re-examined, has also proved that he had sent the sample for chemical examination on 16-1-1989. P. W. 2 Daya Ram is an employee of the Customs Department and he was also one of the member of the raiding party. He had also stated about the interception and recovery of the Charas. Regarding search Daya Ram also stated that the accused was asked: "talashi mujhko doge ya afsaran ke samne. Muljim talasi ham logan se kaha. " 6. No other independent witness of the public was examined in this case. I a his statement accused admitted that he had come from 507 Dn. train from Gorakhpur to Lucknow and was on way to Punjab. Nothing was recovered from him. Instead his money, Rs. 5,600/-, was snatched and when he asked for return of the same he was falsely implicated in this case. 7. After hearing learned Counsel for the parties, learned Sessions Judge found the case proved and as such convicted and sentenced the appellant as stated above against which order the present appeal has been filed. 8. I have heard learned Counsel for the parties and have gone through the record. The accused is in custody from 22-12-1988 and has already suffered major portion of the period of sentence and the appeal remains only of academic interest. Learned Counsel for the appellant has argued that in this case the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as Act) have been flagrantly violated. It was urged that the sample was sent for chemical examination after 27 days and this delay, also creates suspicion. It was again argued that no other witness had been examined in this case. The merit of the appeal mainly rest on non-compliance of the provisions of Section 50 of the Act. It was urged that the sample was sent for chemical examination after 27 days and this delay, also creates suspicion. It was again argued that no other witness had been examined in this case. The merit of the appeal mainly rest on non-compliance of the provisions of Section 50 of the Act. Under the provisions of Section 50 of the Act it is an imperative requirement on the part of the Officer intending the search to inform the person to be searched, of his right to be searched in the presence of a Gazetted Officer or Magistrate. If a particular culprit desires that his search should be taken in presence of Gazetted Of ficer/magistrate then the arrangements have to be made by the raiding party for the conduct of the search before such authority. Provisions of Section 50 of the Act cannot but be regarded as mandatory and violation thereof per se would be fatal to the prosecution case. It has further been proved that the provisions of the Code of Criminal Procedure will apply to the search and seizure under this Act as well. 9. In this particular case in the state ments, as given by the two witnesses, they have nowhere stated that an option was given to the appellant to be searched before a Magistrate. The only option given was whether he liked to be searched by the Customs Inspector-R. K. Tripathi or by some officer. The provision of law requires an option to ask for search before a Gazetted Officer or the Magistrate. There is nothing in the statements of the wit nesses that any option was given to the accused to be searched before the Gazetted Officer or the Magistrate. In the complaint also there is not even a whisper that anything was asked from the accused regarding his option. The search memo. Ex. Ka-1, is also totally silent regarding the option given to the accused. Thus, the record shows that no option was given to the accused and the statements of the wit nesses show that an option was given to be searched either by the raiding party or by any officer. No option was given to be, searched by any Gazetted Officer or the Magistrate. Every Officer is not a Gazetted Officer and when the legislature has writ ten any word it has been written with specific meaning. No option was given to be, searched by any Gazetted Officer or the Magistrate. Every Officer is not a Gazetted Officer and when the legislature has writ ten any word it has been written with specific meaning. The word Gazetted is not superfluous. Thus, no option at all can be said to have been given in this particular case. 10. It was argued by the learned Counsel for the State that where search is made all of sudden and no Gazetted Of ficer or Magistrate, is available there then it is not necessary to give such an option. Option is necessarily to be given. If the Gazetted Officer or the Magistrate is not available the prosecution has to account for it. But it is to be remembered that the search in this particular case was made at Platform of N. E. Railway Station, Charbagh, Lucknow and there a Railway Magistrate is also deputed and Railway quarters have been provided to them either at the Railway Station or in the nearby vicinity. It is not the case of the prosecution that no Magistrate or Gazetted Officer could have been avail able at that particular time. Even if at that particular time Gazetted Officer or the Magistrate could not have been available then also prosecution should have proceeded with the compliance of the provisions of Section 50 of the Act from the stage wherefrom it was possible. It has been held in the ruling State of Punjab v. Jasbir Singh, 1996 (1) EFR 224; 1996 JIC 262 (SC), that oral statement of the Police Officer may not be believable. Compliance of Section 50 could have appeared had there been anything in writing by the ac cused that he had got no objection to have the search being conducted by the raiding party instead of the Magistrate or Gazetted Officer. In the ruling reported in State of Punjab v. Labh Singh, 1996 (33) ACC 645 (SC); 1996 JIC 1010 (SC), also it has been held that in the absence of any writing from the accused to the effect that he was informed of, but he waived that right, it cannot be believed that any such option was given, but no universal formula can be laid down in this regard. In the ruling reported in T. P Razak v. State of Kerala, 1996 (2) EFR 80, it has been held by Honble Supreme Court that compliance of Section 50 is mandatory in nature. Search of the accused without complying its requirements vitiates the entire search. Mere evidence of the Sub-Inspector that he had informed the accused about his right to have the search made before the Magistrate or the Gazetted Officer, not supported by any averment in the F. I. R. or in the seizure memo, cannot be accepted as reliable evidence. It has already been dis cussed above that the seizure memo or the complaint is totally silent in this case regarding such an option having been ad vanced to the appellant. In the ruling reported in Monindra Kumar v. State of Panaji, Goa, 1995 (2) EFR 342; 1995 JIC 1025 (SC), also it has been held that the provisions of Section 50 arc mandatory and are applicable even in chance recovery of contraband. In this particular case police raided a house accidentally and came to know that the accused was in possession of Charas but failed to comply the requirement of Sections 42 and 50. On the basis of the ruling of Balbir Singh it was held that in such cases also investigation has to be carried out from which it is pos sible in accordance with the provisions of Section of the Act. 11. It was also argued that contraband article was sent after 27 days to the Laboratory for examination which is fatal. In the ruling reported in 1995 CAR (81) a pistol was seized on 15-2-1995. It was sent for examination on 27-1-1995. It was held that this 12 days delay creates doubt and the evidence is liable to be discarded. It was argued by the State Counsel that this is a case of pistol and filed cartridges. May it be as argued, but the principles are the same. If a pistol and fired cartridges can be changed, tampered or become unfit for comparison then why not this Nepali Charas. 12. It was argued by the State Counsel that this is a case of pistol and filed cartridges. May it be as argued, but the principles are the same. If a pistol and fired cartridges can be changed, tampered or become unfit for comparison then why not this Nepali Charas. 12. It is true that there is a confessional statement of the accused but looking into the glaring non- compliance of the man datory requirement of law the case cannot be said to have been proved particularly when only two officials of the Customs Depart ment have been examined whereas a number of witnesses were available at the Railway platform. Thus, the case cannot be said to have been proved beyond any shadow of doubt against the appellant. 13. I have gone through the judgment recorded by the learned Sessions Judge. He has given an incorrect finding that the accused was asked whether he desired to be searched before the Gazetted Officer or the Magistrate. There is nothing in the statement of any witness or the documents produced by the prosecution in this par ticular case. Even in the confessional state ment alleged to have been recorded, al though subsequently retracted and is said not to have been given, there is nothing to indicate that the accused was offered any option to be searched in the presence of the Gazetted Officer or the Magistrate. 14. In the circumstances, as narrated above, the appeal deserves to be allowed and conviction and sentence of the appel lant is liable to be set aside. 15. The appeal thus succeeds and is hereby allowed. Conviction and sentence of the appellant is hereby set aside. He is acquitted of the charges under Sections 20 and 23 read with Section 8-C which he faced separately. He is directed to be released forthwith, if no longer required in connection with any other ease. The amount of fine, if deposited, shall be refunded to him forthwith. Appeal allowed. .