Judgment SHIV KUMAR SHARMA, J. ( 1 ) THESE two appeals have been filed by the accused appellant (for-short the accused) impugning the judgment dated December 14,1995 of the learned Additional Sessions Judge No. 1. Kota. Where by the accused was convicted and sentenced under Sections 18/21 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (for short the Act) to undergo ten years rigorous imprisonment and a fine of Rupees. One Likh, in default to further undergo two years rigorous imprisonment. ( 2 ) ACCORDING to prosecution. SHO. Ramganjmandi Shri Chavand Singh (PW 6) on receiving information on June 2nd 1994 that the accused was selling smack near Mazar of Kherabad Baby reached there with a raid party. Chavand Singh informed the accused that he was to conduct her personal search and asked if she was desirous of having her personal search conducted in the presence of a Gazetted Officer or a Magistrate. Accused told that she would have the search conducted by SHO Chavand Singh. Thereafter, Head Constable Smt. Geeta Pancholi searched her and found 15 pouches of smack inside her blouse. Net smack weighed one gram and five hundred milligrams. Two samples of five hundred milligrams and remainder were sealed. Seizure memo (Exp. 3) was drawn and accused was arrested. FIR (Exp. 12) was registered and samples were sent to FSL Jaipor Report of FSL (Exp. 15) was received which confirmed that the sample contained in each of the packets gave positive test for the presence of Diacety Morphine (Heroine ). Charge-sheet was filed and the accused was charged under Sections 8/21 of the Act. The accused denied charges and claimed trial. Prosecution examined Man of Sharma (PW 1), Hair Prakash (PW 2 ). Poran Mal (PW 3), Mohand Lal (PW 4 ). Smt. Geeta Pancholi (PW 5 ). Chavand Singh (PW 6) and Bheru Lal (PW 7 ). The accused in her statement under Section 313 Cr. P. C. denied the allegations and pleaded false implication. She did not, lead any evidence. Taking into consideration the material placed before him the learned Trial Court convicted the accused as indicated above. ( 3 ) I have given my thoughtful consideration to the rival contentions and carefully perused the records. The accused in her statement under Section 313 Cr. P. C. denied the allegations and pleaded false implication. She did not, lead any evidence. Taking into consideration the material placed before him the learned Trial Court convicted the accused as indicated above. ( 3 ) I have given my thoughtful consideration to the rival contentions and carefully perused the records. ( 4 ) ALL the witnesses examined by the prosecution gave evidence before the trial court on the lines of the prosecution case, but following facts are necessary to be looked into. (a) Both Chavand Singh and Smt. Geeta Pancholi, who conducted search of the accused, were not gazetted officers. (b) SHO Chavand Singh before conduction search vide letter Exp. 8, directed Ram Ratan. Constable No. 494, Police Station, Ram Gang Mandi for procuring independent witnesses, but Ram Ratan put a remark over Exp: 8 that nobody was ready to become witness despite his pursuation and efforts. (c) Ram Ratan, Constable was not examined by the prosecution. (d) Chavand Singh, SHO vide memo Exp. II, informed the accused about his intention to search her and gave option to accused if she wanted to be searched by a Magistrate or a Gazetted officer. On this memo the signatures of the accused are seen. However the SHO did not prepare the memo of alleged consent given by the accused that she would have the search conducted by the SHO Chavand Singh. (e) In the statement under Section 313 Cr. P. C. the accused denied the allegation and pleaded that she was sleeping in the house and was suffering from fever. The police entered in home and arrested her. (f) SHO Chavand Singh in his cross examination admitted that from the date of his posting in Police Station, Ramganj Mandi, he knew the accused and her husband, who was a known criminal. ( 5 ) STATUTORY duty cast on the investigating officer under Section 50 of the Act, is not to be lightly avoided by the investigating agency, by stating that the investigating officer informed the accused of her right but the accused declined the offer and stated that the investigating officer himself can search her. If that is going to be the case of the investigating agency, then they should let in cogent and acceptable evidence of independent witnesses. If that is going to be the case of the investigating agency, then they should let in cogent and acceptable evidence of independent witnesses. This is because a very valuable and statutory right of the accused is sought to be taken away by the alleged consent. ( 6 ) IN State of Punjab v. Om Prakash the Division Bench of Punjab and Haryana High Court propounded that where the accused is alleged to have subscribed his thumb impression to the memo, by and under which that accused is alleged to have given his consent for being searched by the investigating officer himself and where it is not attested by independent witnesses, the same cannot be acted upon or taken to be evidence of the accused having agreed to be searched by the investigating officer himself. This is especially so whent it is seen that the accused is illiterate. ( 7 ) IN the case on hand, as already stated the investigating officer Chavand Singh (PW 6) did not prepare the memo of alleged consent of the accused for being searched by the investigating officer himself. The memo (Exp. 11) does not reveal that the accused gave consent for the search to be conducted by SHO Chavand Singh. The accused is an illiterate lady who hardly can sign with difficulty as is evidenced from her signatures over Exp. 11. Even the memo (Exp. 11) was not attested by independent witnesses. Ram Ratan, Constable was not examined by the prosecution who could have explained as to under what circumstances the independent witnesses could not be procured. The accused in her statement under Section 313 Cr. P. C. denied having been searched by Smt. Geeta Pancholi or investigating officer and pleaded that she was arrested from her house. ( 8 ) IN Amrik Singh v. State of Haryana, it was indicated by the Division Bench of Punjab and Haryana High Court that: To give meaning or content to the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a Police Officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a Gazetted officer or Magistrate, but he chose to decline this offer. ( 9 ) IN the instant case, the mandatory provisions of Section 50 of the Act have not been effectively complied with. The prosecution cannot be heard to say that the illiterate lady reposed confidence in the investigating agency and agreed to be searched by the investigating officer. In the absence of independent witnesses the testimony of Chavand Singh and Smt. Geeta Pancholi does not inspire confidence. Learned trial court has committed illegality in convicting the accused, on the ground that provisions of Section 50 of the Act have been routed, the prosecution has to fail. ( 10 ) RESULTANTLY, the appeals are allowed, and impugned judgment and conviction of the accused under Sections 8/12 of the Act stand set-aside. The accused be set at liberty, if she is not required in any other case. Record be sent back forthwith. Appeal allowed.