C. K. PRASAD, J. ( 1 ) APPELLANT, being aggrieved by his conviction for offences under sections 8 (c) and 20 (b) (i) of the Narcotics Drugs and Psychotropic Substance Act and sentence of R. I. for three months and fine of Rs. 200/-, in default to suffer R. I. for 7 days by the Second Additional Sessions Judge, Raigarh in S. T. No. 60/95 by judgment dated 8-8-1995, has preferred this appeal. ( 2 ) ACCORDING to the prosecution the officer-in-charge of the Police Station PW 4 Balbir Singh received a secret information that the appellant had stored contraband Garya for sale and receiving the aforesaid information, search of the house of the appellant was made and in that search 3. 300 Kgs. Of Gary was recovered. The officer-incharge after investigating the case submitted charge sheet against the appellant and he was put on trial for offence under Section 8 (c) read with Section 20 (b) (i) of the N. D. P. S. Act Appellant denied to have committed any offence and his plea was that he has been falsely implicated in the case. ( 3 ) IN support of its case the prosecution has altogether examined four witnesses. PW. 1 Jaganraj Singh is a Head Constable who has proved the various Roznamchas pertaining to secret information, recovery of Garya from appellant as also information to the higher officers of the police administration. PW. 2 Fulchand and PW 3 Pratipal are the witnesses to the seizure and although they have signed the seizure memo but have stated in their evidence that the seizures were not effected in their presence and they have been declared hostile by the prosecution. P. W. 4 Balbir singh ist the officer-in-charge of the Police Station. He has stated in his evidence that after receiving the secret information he had gone to the house of the appellant and stated his intention to search the house. He has further stated in his evidence that after the appellant gave the consent, search of the house was made and Garya in separate covers were recorded. ( 4 ) SHRI Tripathi learned Counsel for the appellant raises a very short question. He submits that PW. 4 Balbir Singh before conducting search did not give the appellant the option to be search in presence of any Gazetted Officer of the Magistrate. ( 4 ) SHRI Tripathi learned Counsel for the appellant raises a very short question. He submits that PW. 4 Balbir Singh before conducting search did not give the appellant the option to be search in presence of any Gazetted Officer of the Magistrate. Shri, Naidu, however appearing for the respondents, submits that such an opportunity was given P. W. 6 Balbir Singh in his examination- in-chief has although stated that appellant gave consent for search and in token thereof signed the document (Ex. P-8), but he has not stated in his examination-in-chief that the appellant was ever given an opportunity to be searched in presence of the Magistrate or any Gazetted Officer. In paragraph 9 of the cross-examination, this witness has, stated that those lines which pertain to the purported option to the appellant was written by the constable. He has further stated in his cross- examination that other portion of the said document has been written by him. I an unable to understand as to why PW 4 Balbir Singh who has written the entire document, has left the important part to be written by the constable. This witness has further not stated in his examination-in chief that the appellant, in fact was given an opportunity to be searched in presence of the Magistrate or a Gazetted Officer. In such circumstances I am of the opinion that the prosecution has not been able to prove that the appellant was given an option to be searched in presence of the Magistrate or a Gazetted Officer. This being so, the conviction of the appellant cannot be maintained. ( 5 ) IN the result the appeal is allowed and the conviction of the appellant is set aside. Appeal allowed. .