JUDGMENT 1. - The appellant was the accused on the file of learned Sessions Judge Ajmer bearing Sessions Case No.11/94. He was found guilty under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) Under section 374, Criminal Procedure Code against order dated 3.9.96 of Shri K.L. Vyas, Sessions Judge, Ajmer. convicted thereunder and sentenced to 10 years rigorous imprisonment and fine of Rs. 1,00,000/- (in default of payment of fine to further undergo one year R.I.) 2. Aggrieved by the conviction and sentence the present action had been resorted to. 3. Brief resume of the facts is that on the fateful day of September 10, 1994 at around 2.00 p.m. the accused appellant (for short the accused) was arrested under Section 8/20 of the Act for the act of illegally possessing 40 gms. of charas. Charge sheet was filed and charge under section 8/20 of the Act was framed against the accused who denied the charge and claimed trial. The prosecution examined as many as five witnesses. In the statement under section 313 Criminal Procedure Code the accused stated that nothing was recovered from him and the papers were forged by the police. The learned trial court after hearing the arguments convicted the accused as mentioned hereinabove. 4. I have heard learned counsel Shri Resham Bhargava, appearing for the accused as well as the learned Public Prosecutor Mr. S.M. Poddar and carefully perused the record. 5. Babu Lal (PW.1) Head Constable stated that the accused was asked by the SHO Sukh Ram as to whether he was interested having been searched by a Gazetted officer or by S.H.O. Mangla Ram (PW.2) was an independent witness. He did not support the prosecution case and was declared hostile. Sukh Ram (PW.4) S.H.O. stated that the accused was given option to be searched either before the Gazetted officer or before the Magistrate but he volunteered to be searched by the S.H.O. Notice under section 50 of the Act was exhibited as Ex.P.7. In the cross-examination the witness admitted that Ex. P.7 was drawn in the presence of two independent witnesses but their signatures were not obtained. 6. In the cross-examination the witness admitted that Ex. P.7 was drawn in the presence of two independent witnesses but their signatures were not obtained. 6. Statutory duty case under section 50 of the Act is not to be lightly avoided by the investigating agency that the investigating officer informed the accused of his right but the accused declined the offer and stated that the investigating officer himself can search him. 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. In State of Punjab v. Om Prakash, 1997 Cr.L.J. 4611 the Division Bench of Punjab and Haryana High Court indicated that where the accused is alleged to have subscribed his consent for being searched by the investigating officer himself and where the memo drawn by the Investigating Officer 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. 7. In the case on hand search memo (Ex.P.7) was not attested by independent witnesses. Babu Lal (PW.1) only stated that partial option for being searched by the Gazetted officer was given to the accused, which cannot be said as complaince of section 50 of the Act. Independent witness Mangala Ram (PW.2) did not support the prosecution case. Another independent witness Laxman Singh was not produced. Under these circumstances the evidence of search memo cannot be acted upon. In the absence of independent witness the testimony of Sukh Ram (PW.4) does not inspire confidence. Thus the mandatory provisions of section 50 of the Act have not been effectively complied with and learned trial court committed illegality in convicting the accused on the ground that provisions of section 50 of the Act have been flouted, the prosecution has to fail. 8. Resultantly, the appeal is allowed and the impugned judgment and conviction of the accused under section 8/20 of the Act, shall stand set aside. The accused be set at liberty, if he is not required in any other case. Record be sent back.Appeal allowed. *******