JUDGMENT 1. -On 14.3.1996 at about 3.00 p.m. PW 10 Setharam, the then Station House Officer Police Station Beware (Distt. Ajmer), allegedly received secret information to the effect that Mishrilal-appellant was keeping opium in his possession, without having licence, at his shop situate at bus stand Kharwa, a village at about 15 Km. far from Police Station Beawar. PW 10 Setha Ram reduced the information in writing (vide Exhibit P/9), and sent his constable Surendra Singh to call-for independent witnesses from the locality as. also PW 4 Mewa Ram Tehsildar. He passed the secret information to Assistant Superintendent of Police. Beawar, the officer immediate superior to him also and after having taken PW 7 Narpat Singh, Prithvi Singh and PW 4 Meva Ram Tehsildar, as independent witnesses, with him left for the village Kharwal, Setha Ram SHO reached the shop of the appellant at about 3.35-3.40 p.m. and found the appellant there. It is alleged that the SHO gave a notice to the appellant to the effect that he (SHO) intended to search his person, as he was keeping opium without possessing licence, and also enquired of him whether he would like to be searched in. the presence of a gazetted officer. On appellant's agreeing to be searched in the presence of the gazetted officer, who the Tehsildar Mewa Ram was the SHO searched the person of the appellant and the Addl. S.P. also reached there by that time. The appellant was found keeping 1.50 gram of opium, wrapped in Polithin packet, in the pocket of his shirt. The opium was duly seized and sealed by the SHO in presence of the Tehsildar and other witnesses and the appellant was arrested. It is not in dispute that the substance, in respect of which a report from Chemical Analylist was called for from the Assistant Director Forensic Science Laboratory, Jaipur, was opium. At the trial of the appellant, the learned trial Judge found the above facts proved against the appellant and held him guilty of the offence under section 8/18 of the NDPS Act, 1985. He accordingly, convicted him, therefor, and sentenced him to suffer R.I. for 10 years and also payment of fine of Rs. 1 Lakh or in default of payment of fine to further undergo R.I. for 21/2 years vide his judgment and order dated 16.1.1997 made in Sessions Case No. 15/96. He accordingly, convicted him, therefor, and sentenced him to suffer R.I. for 10 years and also payment of fine of Rs. 1 Lakh or in default of payment of fine to further undergo R.I. for 21/2 years vide his judgment and order dated 16.1.1997 made in Sessions Case No. 15/96. Hence this appeal by the appellant under section 374 Cr.P.C. 2. Mr. A.K. Gupta, the learned counsel for the appellant took me through the entire evidence obtaining on the record of the trial Court and submitted that:- (i) compliance of the mandatory provisions of Sections 42(1) & (2) & Section 50 was not proved. (ii) the seizure of opium from the possession of the appellant at his shop at the bus stand was not proved, and (iii) the testimony of the prosecution witnesses was not at all reliable. 3. In support of his contentions Mr. Gupta relied upon certain decision of this Court as well as of the Apex Court. 4. In support of the judgment and order under appeal Shri Pratap Singh, learned Public Prosecutor submitted that the appellant was searched in presence of Tehsildar Beawar Shri Mewa Ram and other independent witnesses and, therefore, their testimony should not be rejected. The learned Public Prosecutor further submitted that Shri Setharam had substantially complied with the mandate contained in Section 42(1) & (2) and Section 50 of the Act and, therefore, the appellant cannot be allowed to take any advantage of any irregularity in conducting the search, if there be any. The learned Public Prosecutor further submitted that the theory advanced by the prosecution was quite probable and fitted in facts and circumstances of the case, and therefore, the conviction and sentence recorded against the appellant by the Court below should not be disturbed. 5. I have given my thoughtful consideration to the arguments advanced before me by the learned counsel for both sides and have examined the record of the lower Court. 6. In so far as the compliance of the provision contained in Section 41(1) & (2) of the Act in the present case is concerned, the evidence led by Shri Setharam SHO is to the effect that he had reduced the secret information in Exhibit P/9 and had informed the Asstt. Superintendent of Police, Beawar on telephone and then had proceeded for to village Kharwar. The contention of Mr. Superintendent of Police, Beawar on telephone and then had proceeded for to village Kharwar. The contention of Mr. Gupta is that since such a fact was not mentioned in the relevant memos, passing of such information to the officer immediate superior to the SHO on telephone does not satisfy the mandatory requirement of Section 41(1) & (2) in as much as that such information is required not only to be reduced in writing but a copy of such writing is also to be forwarded to the officer immediate superior to the SHO concerned. In this behalf Mr. Gupta has referred to the case of State of Punjab v. Balbir Singh, AIR 1994 SC 1872 . 7. In the case of State of Punjab v. Balbir Singh (supra) the Apex Court had considered the point, as raised by Mr. Gupta before this Court, and made the following observation : "The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context, have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements affects the prosecution case and, therefore, vitiates the trial." 8. The Apex Court further observed : "Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith sent a copy thereof to his immediate officer superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent it is mandatory." 9. In the instant case it is the undisputed position that Shri Setha Ram SHO. though stated to have reduced the information into writing (Exhibit P/9), yet he did not send a copy of such report to the Officer immediate superior to him. Obviously the provision contained in Section 42(2) were not complied with. 10. In the instant case it is the undisputed position that Shri Setha Ram SHO. though stated to have reduced the information into writing (Exhibit P/9), yet he did not send a copy of such report to the Officer immediate superior to him. Obviously the provision contained in Section 42(2) were not complied with. 10. Coming now to the compliance of the provision contained in Section 50 the facts brought on record of the case are that the Police party headed by Setha Ram SHO had reached the shop of the appellant at about 3.35 or 3.40 p.m. Shri Setha Ram SHO had stated and it is also stated in the seizure memo Exhibit P/4, that the proceedings of search and seizure had commenced at 3.35 p.m. But the notice alleged to have been given by Setha Ram SHO to the appellant (Exhibit P/3), was prepared at 3.40 p.m. The time as mentioned in the two documents clearly suggests that before giving any notice under section 50 of the Act, the empowered officer had proceeded to prepare the record of the search and seizure proceedings. Such state of affairs itself creates doubt as to whether the Empowered Officer had really complied with the provision of Section 50 or not. 11. That part, in the notice Exhibit P/3 it is mentioned that the appellant was asked as to whether he would like to be searched in presence of gazetted officer to which he allegedly replied in the affirmative. Mr. Gupta, on the basis of the authority of this Court in the case of Nagendra Singh v. State of Raj., 1996 (2) RCD 120 (Raj.) submitted that the appellant was required to be given both the options whether he wanted the search of his person in the presence of a Gazetted Officer or in the presence of a Magistrate. Mr. Gupta submitted that whereas it is the duty of the empowered officer to offer the option to the accused. It is the right of the accused to exercise his option in the manner, he thinks fit. Mr. Gupta submitted that by giving an option to be searched in the presence of a Gazetted Officer only, if such evidence can be believed, Setha Ram SHO had curtailed the valuable right of the appellant to opt between two authorities in whose presence he could be legally searched. 12. Though, Setha Ram. Mr. Gupta submitted that by giving an option to be searched in the presence of a Gazetted Officer only, if such evidence can be believed, Setha Ram SHO had curtailed the valuable right of the appellant to opt between two authorities in whose presence he could be legally searched. 12. Though, Setha Ram. the empowered officer, has stated in his statement that he had given both the options to the appellant yet such statement of the witness can not be accepted for the obvious reason that it does not stand corroborated by his own version given in Exhibit P/4. It is thus clear that the appellant was not given both the options that is of being searched either in the presence of a Gazetted Officer or in the presence of a Magistrate. Informing the accused about his right under section 50 of the Act is mandatory requirement. Again, this mandatory requirement was not satisfied in the present case. 13. In the case of State of U.P. v. Prithvi Chand, (1996) 2 SCC 37 it was held by the Apex Court that irregularities in conducting the search and seizure proceedings, which irregularities do not materially prejudice the accused in his defence, may not vitiate the trial. However, in the present case we find that not only once, but twice Setha Ram SHO is found to have not complied the mandatory provisions of Sections 42(1)(2) & 50 of the Act. Such repeated violation or non-compliance of the mandatory provisions can not be lightly ignored as other serious infirmities are also observed in the present case. 14. The only independent witness PW 7 Narpat Singh has turned hostile and the other independent witness was not examined at the trial. The prosecution evidence on the point of place of seizure is also not clear. Whereas PW Rajendra Singh, L.C. stated that the appellant was not at all searched at his shop. PW 4 Meva Ram Tehsildar, insisted that the appellant was neither called from his house nor was taken to his house and his person was searched at the shop itself. The statements of these two witnesses are not Co-existent. 15. Whereas PW Rajendra Singh, L.C. stated that the appellant was not at all searched at his shop. PW 4 Meva Ram Tehsildar, insisted that the appellant was neither called from his house nor was taken to his house and his person was searched at the shop itself. The statements of these two witnesses are not Co-existent. 15. Reading the prosecution evidence as a whole along with the failure on the part of Setha SHO to comply with the mandatory provisions contained in Section 41(1) & (2) and Section 50, I fell inclined to take the view that the valuable right of the appellant under section 50 was taken away from him and thus material prejudice was caused to him in his defence. It would, therefore, be unsafe to rely upon the prosecution evidence. The conviction of the appellant in the presence of non-compliance of mandatory provisions of Sections 41(1) & (2) and 50 of the Act and also in the presence of unsatisfactory prosecution evidence led at the trial of the appellant can not be sustained without admitting reasonable element of doubt therein. It is, therefore, held that the prosecution had failed to bring the guilt home to the appellant beyond reasonable doubt. 16. In the result, the judgment and order under appeal are hereby set aside, the appellant Mishri Lal acquitted of the offence under section 8/18 of the Act. The appellant is in jail. He shall be set to his liberty, if not wanted in any other case. 17. The amount of fine, if realised from the appellant, shall be returned to him. The amount seized as a result of his search, shall also stand released in favour of the appellant. 18. The appeal is allowed.Appeal allowed. *******