JUDGMENT 1. -This Jail appeal has come up before me for final disposal after Smt. Chandi the accused appellant has already undergone a period of eight years and three months in confinement. She was arrested on November 4, 1989 by Police Station Bani Park Jaipur for having illegally possessed opium weighing 6 kgs. and 850 gms. and 2 kgs. and 250 gms. in two small polythene bags. She faced trial in Sessions case No. 21/90 and was convicted and sentenced by learned Additional Sessions Judge No.6 Jaipur City under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) vide judgment dated April 30, 1991 to undergo ten years Rigorous imprisonment and a fine of Rs. 1 lakh, in default to further undergo 2 years simple imprisonment. Against this judgment, that the accused appellant has preferred instant Jail appeal. 2. I have given my anxious consideration to the rival contentions and carefully perused the record. 3. In order to consider whether provisions contained in section 50 of the Act have been complied by the prosecution, it is necessary to refer the statements of independent prosecution witnesses. PW. 4 Gur Dev Singh an independent witness, stated that the accused was asked by the In charge Police as to whether she wanted to be searched before any officer, the accused volunteered to be searched by lady constable then and there. PW.6 Jag Dev Singh Head Constable, also stated that the accused was asked whether she wanted to be searched before a Gazetted officer but she volunteered to be searched then and there. PW.1 Sunil Kumari, lady constable stated that the accused was asked as to whether she wanted to be searched before Magistrate, she told that she was ready to be searched by the lady constable and thereafter Sunil Kumari searched her and found opium. 4. It is thus evident that according to PW.4 Gur Dev Singh, who is an independent witness the only offer made to the accused appellant before her search was that she, if she so wished could be produced before an 'officer' for her search. Another witness PW.6 Jag Dev Singh, Head constable also corroborated the statement of PW.4 Gur Dev Singh with the improvement that she was asked if she so wished, she could be produced before a Gazetted Officer. Another witness PW.6 Jag Dev Singh, Head constable also corroborated the statement of PW.4 Gur Dev Singh with the improvement that she was asked if she so wished, she could be produced before a Gazetted Officer. Whereas the most important witness PW.1 Sunil Kumari stated that the only offer made to the accused appellant before her search was that she if she so wished, could be produced before the Magistrate. 5. Section 50 of the Act specifies conditions under which search of person shall be conducted. The provisions of section 50 of the Act enjoins upon the officer who is about to search any person, if such person so refused to take him or her without unnecessary delay to the nearest Gazetted Officer or to the Magistrate. Mere offer to get the person searched in the presence of the Gazetted Officer is a partial offer limiting the choice. Similarly mere offer to get the person searched in the presence of the Magistrate is also a partial offer. It was incumbent upon the officer concerned to give both the options to the accused appellant i.e. whether she wants to be searched in the presence of the Magistrate or a Gazetted Officer. Where both the options are not given, the provisions of section 50 of the Act can not be said to be complied with. Thus in the face of the statements of the prosecution witnesses, which are self contradictory, it does not stand proved beyond reasonable doubt that the provisions of section 50 of the Act were complied with in letter and spirit. 6. In United State of America, the accused has a right "not to answer and keep silent while being interrogated by the police." In respect of this right the Court in Miranda v. Arizona (1966 (Vol. 384) U.S. 436) it was observed thus : "At the out set, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it the threshold requirement for an intelligent decision as to its exercise. For those unaware of the privilege, the warning is needed simply to make them aware of it the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures..The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege but also of the consequences of forging it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system that he is not in the presence of persons acting solely in his interest." 7. Their Lordships of the Supreme Court in State of Punjab v. Balbir Singh (JT 1994 (2) SC 108) referred the ratio of Miranda's case (supra) and propounded thus - "When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard confined 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 so search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate. Thus the provisions of section 50 are mandatory." 8. Therefore, if partial offer is given to the accused, it amounts to non compliance of section 50 of the Act. 9. There is yet another infirmity in the prosecution case. According to Ex. P/1 the recovery memo of the opium and the deposition of prosecution witnesses, two samples of 50 gms. each of net opium were taken from the recovered opium and were kept in two polythene packets which were marked S-1 and R-1. Those packets were sent to FSL for examination. But the details of description of articles in the FSL report Ex. R11 read as under: "Each of the packet marked R-1 and S-1 contained brownish black semi-solid substance with characteristic smell weighing approx. 40 gms. Those packets were sent to FSL for examination. But the details of description of articles in the FSL report Ex. R11 read as under: "Each of the packet marked R-1 and S-1 contained brownish black semi-solid substance with characteristic smell weighing approx. 40 gms. alongwith the respective polythene bages in each case." Thus it is evident that two samples of 50 gms. each of the net opium were kept by the prosecution in the polythene packet, while the samples received by the FSL were 40 gms each alongwith the polythene bag. The prosecution could not explain the discrepancy and it goes to indicate that the report of the FSL (Ex.P11) does not relate to the sample which was recovered from the possession of the accused appellant. My view finds support from Rawata Ram v. State (1996 (Cr.L.R. (Raj.) 258) and Gopal v. State (1988 RCC 417) . 10. In view of what I have stated above, I find that the prosecution cqse suffers from serious infirmities and the conviction of the accused appellant recorded by the learned trial judge cannot be maintained. It is unfortunate that the instant jail appeal could not be disposed of early. 11. Resultantly, the appeal succeeds and is hereby allowed. The impugned judgment of the learned trial judge is set aside and the accused appellant Smt. Chandi shall stand acquitted of the offence under section 8/18 of the Act. The appellant shall be released forthwith if not required in any other case.Appeal allowed. *******