V. K. AGRAWAL, J. ( 1 ) THE accused/appellant stands convicted under S. 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act' for short) and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 3,000/- in default of which to undergo imprisonment for six months, by judgment dated 11-7-1996 in Special Case No. 113/1994 by Sessions Judge, Bilaspur. ( 2 ) THE case of the prosecution, stated in brief, is that on 19-7-1994 Police Constable Shyamlal Rathore (P. W. 8) was posted at Police Station Champa and had gone on duty for service of summons at village Kumhari. On the next day, i. e. on 20-7-1994, while he was returning to Champa, he received an information that a person was carrying Ganja. He saw the accused/appellant coming on a scooter at Saragaon Rly. Crossing. He stopped the scooter and on search of the scooter, a bag was recovered in which Ganja was kept. The accused/appellant was taken by Police Constable Shyamlal (P. W. 8) to Police Station Champa and was produced before S. H. O. Rajesh Khare (P. W. 7 ). ( 3 ) S. H. O. Rajesh Khare (P. W. 7), after intimating the accused/appellant by notice (Ex. P/8-A), whether the search of his person should be made in the presence of a Gazetted Officer and on accused expressing his consent to be searched by Rajesh Khare, the latter conducted his search. Ganja was found in possession of the appellant, which was seized from him. Seizure Memo (Ex. P/6) was prepared. The scooter in which the accused/appellant was carrying 'ganja' was seized on the next day, i. e. , on 21-7-1994, as per seizure memo (Ex. P/7 ). The seized Ganja was sent for chemical examination to Forensic Science Laboratory, Raipur. The same was confirmed to be 'ganja', as per report (Ex. P/10 ). After concluding investigation, charge-sheet was filed against the accused/appellant. ( 4 ) THE accused/appellant adjured guilt to the charge. His defence appears to be that while he was going to Champa on his scooter, he was apprehended and forcibly taken to the Police Station. He has been falsely implicated. ( 5 ) THE learned trial Court found that after complying the mandatory provisions of 'the Act' on search of the accused/appellant, 'ganja' was seized from him. His defence appears to be that while he was going to Champa on his scooter, he was apprehended and forcibly taken to the Police Station. He has been falsely implicated. ( 5 ) THE learned trial Court found that after complying the mandatory provisions of 'the Act' on search of the accused/appellant, 'ganja' was seized from him. Accordingly, he was convicted and sentenced, as mentioned above. ( 6 ) THE learned counsel for the accused/appellant has urged that even according to the prosecution case, the accused/appellant was apprehended at Rly. Crossing at Saragaon Road. However, no search or seizure from him at that place was made. It is urged by the learned counsel for appellant that he was brought to the police station, Champa where seizure was made from him, without complying with the mandatory provision of Section 50 of 'the Act'. The notice (Ex. P/8-A) was not given to him before search of the accused/appellant and that the accused/appellant was made to put his endorsement on the said notice (Ex. P/8-A) after the proceedings of search and seizure were concluded. ( 7 ) HOWEVER, the learned counsel for the respondent/state has supported the impugned-judgment of conviction as well as the sentence imposed on the accused/appellant and it had been contended that the search of the appellant was conducted after complying with the mandatory requirement of 'the Act' and he was found in possession of seized 'ganja'. ( 8 ) SHYAMLAL Rathore (P. W. 8) states that he was at the relevant time posted as Police Constable at Police Station Champa. He also states that on 20-7-1994 he received information whereafter, he apprehended the accused/appellant, while he was coming on a scooter. He had brought him to police station with the assistance of two persons along with the bag in which 'ganja' was kept. ( 9 ) S. H. O. , Rajesh Khare (P. W. 7) states that after intimating the accused/appellant, as per Ex. P/8-A, he had taken his search and seized the 'ganja' from the accused/appellant. (The notice though actually marked as Ex. P/8-A is referred as Ex. P/8 in the statement of Rajesh Khare ). From the perusal of Ex. ( 9 ) S. H. O. , Rajesh Khare (P. W. 7) states that after intimating the accused/appellant, as per Ex. P/8-A, he had taken his search and seized the 'ganja' from the accused/appellant. (The notice though actually marked as Ex. P/8-A is referred as Ex. P/8 in the statement of Rajesh Khare ). From the perusal of Ex. P/8-A,it appears that the accused was asked as to by which of the officers the accused/appellant wants to get the seizure made, and in bracket, the officers mentioned are S. H. O. , D. S. P. and Magistrate. It may be noticed that there is no intimation to the accused/appellant that if he so required, he can be taken to the nearest Gazetted Officer or a Magistrate. It also does not appear from the statement of S. H. O. , Rajesh Khare (P. W. 7) that after the accused/appellant was produced before him by constable Shyamlal Rathore (P. W. 8), he intimated him that appellant could get search or seizure made from a Gazetted Officer. Thus, the statement of Rajesh Khare (P. W. 7) does not disclose that the appellant was duly intimated of his right that if he wished, he could, before search of his person is made, be taken to the nearest Magistrate or Gazetted Officer, in compliance of Section 50 of 'the Act'. 9-A. It has been laid down in State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : (1994 Cri LJ 3702) that the provisions of Section 50 of 'the Act' are mandatory. It has also been laid down therein that the person proposing to take the search of the accused is duty bound to inform him of his right to be taken without unnecessary delay to the nearest Gazetted Officer of any Department mentioned in S. 42 of 'the Act' or to the nearest Magistrate. Therefore, mandatory requirement of law as above is to be observed before search is taken of the accused/appellant. Similar proposition of law has been laid down in Alimustaffa v. State of Kerala, AIR 1995 SC 244 and also in Mohinder Kumar v. The State of Panaji, Goa, AIR 1995 SC 1157 : (1995 Cri LJ 2074 ). 9-B. Therefore, it was obligatory on the part of the S. H. O. to comply with letter and spirit of the provisions of Section 50 of 'the Act'. 9-B. Therefore, it was obligatory on the part of the S. H. O. to comply with letter and spirit of the provisions of Section 50 of 'the Act'. In this case, as already noticed, the accused/appellant was not apprised of his right to be taken to the nearest Gazetted Officer or the Magistrate before his search was conducted. In fact, the statement of Rajesh Khare (P. W. 7) does not indicate that any search at all was taken. It appears from his statement that a presumption was drawn that the accused/appellant was in possession of the contraband 'ganja' and the seizure memo thereof was prepared, without undertaking any search. The action as above may have been taken by Rajesh Khare (P. W. 7) due to information given to him by Constable Shyamlal Rathore (P. W. 8 ). However, in the absence of due compliance of Section 50 of 'the Act', the seizure as above vitiated the proceedings and cannot form basis of conviction. ( 10 ) IT may further be noticed that Shyamlal Rathore (P. W. 8) has not brought the accused in the same condition as he was found. The statement of Police Constable Shyamlal Rathore (P. W. 8) appears to be that he himself made the search and apprehended the accused/appellant. Shyamlal Rathore (P. W. 8) thereafter brought the accused/appellant to the Police Station along with two persons as has been stated by him. Above proceedings by Police Constable Shyamlal Rathore (P. W. 8) do not appear to be legal and proper. If he suspected that accused/appellant Sushil Kumar was in possession of 'ganja', he should have brought him along with the scooter to the Police Station, instead of taking search of the accused/appellant, as is discussed from his own statement. Needless to say, Police Constable Shyamlal Rathore (P. W. 8) did not have the authority to make any search or to apprehend the accused/appellant. ( 11 ) IT may further be noticed that the scooter of the accused/appellant was left at the house of the accused/appellant and was seized after being called therefrom. The statement of Police Constable Shyamlal Rathore (P. W. 8) does not explain as to how the scooter reached the house of the accused/appellant, while the accused himself was apprehended at Railway Crossing at Saragaon Road. The statement of Police Constable Shyamlal Rathore (P. W. 8) does not explain as to how the scooter reached the house of the accused/appellant, while the accused himself was apprehended at Railway Crossing at Saragaon Road. Thus, there are unexplained circumstances in the prosecution case and, therefore, the case of the prosecution is rendered doubtful. Moreover, independent witnesses have not supported the prosecution case. ( 12 ) THEREFORE, the recovery having not been made from the accused/appellant at the spot where he is alleged to have been found in possession of the contraband 'ganja' and mandatory requirement of Section 50 of 'the Act' having not been complied with, the search and seizure as above cannot be relied upon. In the circumstances, the conviction and sentence of the accused/appellant under Section 20 (b) (i) of 'the Act' are not justified. ( 13 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence of the accused/appellant are set aside. He is acquitted of the charge. The bail bond and the surety bond furnished by him shall stand discharged. Appeal allowed. .