JUDGMENT 1. - Instant jail appeal has been preferred by the accused appellant (for short the accused) impugning the judgment dated June 13, 1997 of the learned Additional Sessions Judge No.1, Kota whereby the accused was convicted and sentenced under Section 8/21 of the N.D.RS. Act 1985 to undergo 10 years Rigorous Imprisonment and a fine of Rupees One Lakh, in default to further undergo two and half years Rigorous Imprisonment. 2. The case of prosecution, in short, is that on March 18, 1995 the accused was arrested in a criminal case under N.D.RS. Act by Police Station, G.R.R, Kota and was remanded to judicial custody. At the time of entering into Central Jail, Kota when he was searched by gate keeper Shanker Lal, two pouches of smack were recovered from the shoes of the accused. Shanker Lal deposited smack with the Deputy Jailor Manohar Singh and made a written complaint with the Jail Superintendent who forwarded the complaint to the S.H.O. Nayapura, Kota. A case under Section 8/21 of N.D.PS. Act was registered against the accused and investigation commended. An application was moved by the I.O. before the learned Court of Additional Sessions Judge, No.1, Kota seeking police remand of the accused. Learned Additional Sessions Judge, vide order dated March 20, 1995 remanded the accused in police custody and issued direction to the Superintendent, Central Jail, Kota to handover the accused to S.H.O., Police Station, Nayapura, Kota. The accused thereafter, was taken in police custody and his arrest was shown on March 20, 1995. Smack weighing 208 Gms. and shoes were seized through seizure memo. Two samples, each containing one gram of smack were drawn and sealed. The samples were sent to F.S.L., Jaipur. Report of F.S.L. confirmed that each of the packet gave positive test for the presence of Diacetyl Morphine (Heroin). On completion of investigation challan under Section 8/21 N.D.RS. Act was filed. The accused was charged under Section 8/21 of the Act to which he pleaded not guilty. On evaluation of evidence the learned trial court convicted and sentenced the accused as indicated here-in-above. 3. I have heard Miss Rajesh Kandwal, learned Amicus Curiae and Mr. Poddar, learned PP for the State and scrutinised the record. 4. Section 50 of the N.D.RS. Act specifies condition under which search of person arrested shall be conducted. On evaluation of evidence the learned trial court convicted and sentenced the accused as indicated here-in-above. 3. I have heard Miss Rajesh Kandwal, learned Amicus Curiae and Mr. Poddar, learned PP for the State and scrutinised the record. 4. Section 50 of the N.D.RS. Act specifies condition under which search of person arrested shall be conducted. The powers to detain, search and arrest any person have been conferred by Section 41(2), 42 and 43 of the Act. However, these powers can be exercised by those officers alone who have been empowered by general or special order of the concerned Government. An arrest and search by an officer, not so authorised is illegal. Section 50 of the Act enjoins upon the officer, who is about to search any person under the provisions of Sections 41 to 43, if such person, so requires, to take such .persons without unnecessary delay to the nearest Gazetted Officer or the Magistrate, who shall direct that search be made but if he seeks no reasonable grounds for search, shall discharge the person. This provision is intended to Act, as a safeguard against vexatious search and unfair dealings and to protect and safeguard the interest of an innocent person. Statutory provisions have been made in the N.D.RS. Act keeping in view the heavy punishment which is liable to be imposed in case a person is found guilty of particular offence. So, it is rather incumbent on the police parties to see that salutary provisions contained in Sections 42 of 55 to the Act are complied with. 5. In the case on hand, not even a single provision of the N.D.RS. Act has been complied with. Admittedly, when the accused was searched by a gate keeper Shanker Lal, he was in police custody and was about to enter in to jail. It is difficult to believe that a person in the custody of police was possessing smack in his shoes as before his arrest he was already searched by the Police Station, G.R.R, Kota, thereafter his arrest memo was prepared and he was taken to the Magistrate from where he was remanded to judicial custody. 6. Alleged recovered smack was handed over to Deputy Jailor Manohar Singh. A perusal of seizure memo of the Smack (Ex.P2) reveals that Dilip Singh. Acting Jailor on March 18, 1995 produced the smack in the Police Station. 6. Alleged recovered smack was handed over to Deputy Jailor Manohar Singh. A perusal of seizure memo of the Smack (Ex.P2) reveals that Dilip Singh. Acting Jailor on March 18, 1995 produced the smack in the Police Station. Nayapura, Kota, whereas the accused was arrested in the case on March 20, 1995, when he was taken in police remand from the Jail. It is, therefore, evident that Smack was seized by the police before registering a case against the accused. The salutary provisions of the N.D.RS. Act have not been followed. Shanker Lal, the gate keeper was not authorised to conduct search. Even before search no option, as required under section 50 of the Act was given to the accused. Though prosecution examined as many as nine witnesses, but even if I admit their testimony at face value, charge under. Section 8/21 of the N.D.RS. Act is not established. Arrest and search of the accused is illegal and the prosecution did not to protect and safeguard the interest of an innocent person. Even Shanker Lal, the gate keeper did not search the accused in presence of any witness. Testimony of Shanker Lal who was a gate keeper, Head Constable, does not inspire confidence. 7. From the totality of the facts and circumstances of this case, a doubt creeps in the mind of the Court with regard to complicity of the accused in commission of the offence alleged against him. That being so, he deserves the benefit of doubt and thus, even earn his acquittal. 8. Resultantly, I allow the appeal and set-aside the judgment dated June 13, 1997 of the learned Additional Sessions Judge No.1, Kota. I acquit the accused from the charge under Section 8/21 of the N.D.RS. Act. He be set at liberty if not required in any other case. Record of the case be sent back forthwith. *******