Judgment :- The accused in S.C. 73/1996 on the file of the Sessions Court, Kozhikode, is the appellant. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lakh, on default of payment of fine to undergo rigorous imprisonment for a further period of 3 years for an offence under section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short the Act). Aggrieved by the above conviction and sentence, the accused preferred this appeal. 2. The case against the appellant was that she was found to be in possession of 18.5 grams of brown sugar kept in 97 small polythene packets by about 7.15 p.m. on 22-1-1996 at the footpath near the beach road junction near the Bangladesh Colony and thereby committed under section 21 of the Act. When the charge was read and explained to the appellant, she pleaded not guilty. On the prosecution side P.Ws. 1 to 6 were examined and Exts. P-1 to P-8 were marked. M.Os. 1 to 3 were identified. When questioned under section 313, Cr.P.C. she denied the correctness of the incriminating evidence against her and contended that the case was falsely foisted against her at the instance of P.W. 6, the Circle Inspector of Police, against whom she had preferred Ext. D-1 complaint before the higher officials regarding the partisan approach made by him in respect of a complaint made by her against some other persons. Exts. D-1 and D-2 were marked on her side. 3. The learned counsel for the appellant and the Public Prosecution were heard. 4. The Sub-Inspector of Police, Nadakkavu Police Station, who detected the offence was examined as P.W. 1. His case, when examined before Court, was that on 22-1-1996 by about 6.45 p.m. he received reliable information that a lady was engaged in the sale of brown sugar in Bangladesh Colony. Immediately he contacted P.W. 3, the Sub-Inspector of Vanitha Police Station, and he along with P.W. 3 and the police party proceeded to the Bangladesh colony and when they reached near the Beach road junction, they found the appellant walking along the footpath towards east and seeing the police party, she tried to escape and hence P.W. 1 intercepted and stopped her. P.W. 1 informed the appellant that she is suspected to be in possession of brown sugar and that she had a right to demand the search of her body being conducted in the presence of a Magistrate or a gazetted officer. P.W. 1 further stated that the appellant waived her right to be searched in the presence of a Magistrate or a gazetted officer and conceded to be searched by the lady police officer. It was his further that P.W. 3, the lady Sub-Inspector of Police, obtained a packet from the possession of the appellant which contained 97 small packets of brown sugar, and the above packets were duly numbered and the contraband brown sugar along with the packets weighed 18.5 grams. All the above 97 packets were packed and covered with brown paper, got it sealed and the signature of the witnesses and the accused were obtained on the packets. There-after the appellant was arrested and the contraband was seized as per Ext. P-1 seizure mahazar, and P.W. 1 took the appellant to the police station along with the contraband articles and registered crime No. 17/1996 under section 21 of the Act. The contraband articles were kept in his custody and on the next day the appellant was produced before Court along with the contraband articles and she was remanded to judicial custody. P.W. 2, a police constable, and P.W. 3, the Vanitha Sub-Inspector who accompanied P.W. 1, also had given a similar version regarding the incident. 5. The main argument advanced by the learned counsel for the appellant was that P.W. 1 had not complied with the mandatory provisions of Sections 42 and 50 of the Act. It was argued that the information received by P.W. 1 was not recorded and conveyed to the superior officer and that there was no documentary evidence to show that the appellant was informed of her right to demand the search being made in the presence of a gazetted officer or a Magistrate. It was further argued that the version of P.Ws. 1 to 3 that the appellant was informed of her right to demand the search being conducted in the presence of a gazetted officer or a Magistrate and the alleged waiver of such right by the appellant were subsequent improvements made at the time of giving evidence for the first time cannot be relied on. 1 to 3 that the appellant was informed of her right to demand the search being conducted in the presence of a gazetted officer or a Magistrate and the alleged waiver of such right by the appellant were subsequent improvements made at the time of giving evidence for the first time cannot be relied on. He was placing reliance on Ext. P-1 seizure mahazar, the earliest document, which did not disclose any of these matters. Ext. P-1 mahazar would show that the 97 packets of brown sugar having a weight of 18.5 grams recovered from the possession of the appellant at 7.15 p.m. on 22-1-1996 was seized in the presence of the witnesses by the S.I. of Police, Nadakkavu. Two witnesses and the S.I. (P.W. 3) signed in it. Ext. P-1 did not disclose that P.W. 1 proceeded to the scene after receiving information regarding the sale of brown sugar at Bangladesh Colony and that he had procured the service of the Vanitha Sub-Inspector (P.W. 3). It did not disclose where P.W. 1 and party met the appellant and how they procured the presence of the attesters. It did not disclose that P.W. 1 had informed the appellant of her right to demand the search being conducted in the presence of a Magistrate or a gazetted officer and that the appellant had waived her right to demand the search being conducted in the presence of a gazetted officer or a Magistrate. Ext. P-1 did not disclose the procedure adopted by P.W. 1 in weighing, packing and sealing the contraband. Ext. P-1 did not even bear the signature of either P.W. 2 or P.W. 3 and as such the argument of the learned counsel for the appellant gets more force that P.Ws. 2 and 3 had not accompanied P.W. 1 at the time of the arrest and seizure of the contraband. In fact Ext. P-1 did not disclose how P.W. 1 and others happened to reach the scene and thereafter what transpired there. 6. P.W. 4 Peter is an independent witness. His version was that while he was proceeding for purchase of medicine, he found two police jeeps at Beach road junction. The S.I. called him and the appellant was found with the police. The Vanitha S.I. collected a packet from the appellant and handed it over to P.W. 1 and the packet contained 97 small packets. His version was that while he was proceeding for purchase of medicine, he found two police jeeps at Beach road junction. The S.I. called him and the appellant was found with the police. The Vanitha S.I. collected a packet from the appellant and handed it over to P.W. 1 and the packet contained 97 small packets. That was packed and he signed over the packet and also in another paper. He identified his signature in Ext. P-1 and M.Os. 1 to 3. He had not stated that he had seen the S.I. informing the appellant about her right to demand the search being conducted in the presence of a gazetted officer or a Magistrate and the appellant waiving her right. He also had not given the procedure adopted by the police officials in weighing, packing and sealing the contraband articles. The evidence of P.W. 4 would not disclose that Section 50 had been complied with. Ext. P-1 also did not disclose what all things transpired at the scene before the appellant was arrested. The mahazar prepared at the time of the arrest of the appellant should disclose what all matters transpired at the scene before the arrest and it should disclose that Section 50 had been complied with. It should further reveal the procedure adopted for weighing, packing and sealing the contraband. In the absence of disclosing such details in Ext. P-1, the version given by P.Ws. 1 to 3 regarding the compliance of Section 50 before Court for the first time cannot be relied on. The trial Court had not considered the above aspect but blindly believed the version of P.Ws. 1 to 3 regarding the compliance of Section 50 and hence the above finding cannot be sustained. 7. An important circumstance which would tell upon the veracity of the prosecution case is about the weight of the contraband brown sugar. According to the prosecution P.W. 1 had weighed the contraband article at the place of seizure and it weighed 18.5 grams. Ext. P-6 chemical report would reveal that the chemical examiner received a packet containing 97 small polythene packets serially numbered from 1 to 97, each containing about 60 mgs. of a brownish substance. If the above recital in Ext. P-6 is accepted, the total weight of brown sugar in 97 packets should be 58.20 grams. One can understand if there is some marginal difference in the weight. of a brownish substance. If the above recital in Ext. P-6 is accepted, the total weight of brown sugar in 97 packets should be 58.20 grams. One can understand if there is some marginal difference in the weight. But the difference in the weight of the brown sugar received by the chemical analyst and the weight of brown sugar alleged to have been seized from the appellant differed materially in as much as the quantity sent to the chemical analyst was more than three times the quantity recovered. This difference in the quantity could not be explained by the prosecution and it would cause much suspicion regarding the veracity of the whole prosecution case. It would be further relevant to note that at page 1 of the first remand report produced before the Court along with the appellant, it was mentioned that the appellant was arrested with 18.5 grams of "ganja", even though at a later portion at page 2 it was mentioned as brown sugar. The mentioning of the contraband as 'ganja' in page 1 of the remand report may be an error; even then it will tell upon the way in which such a very grave crime had been handled. The above circumstances also would cause much suspicion on the veracity of the entire prosecution case. 8. Learned counsel for the appellant argued that Section 50 is mandatory and the non-compliance of Section 50 would vitiate the entire seizure of the articles and hence the conviction cannot be sustained. He placed reliance on the decision of the Supreme Court in Hamza v. State of Kerala (1999) 3 Ker LT 122 : (1999 Cri LJ 4059). That was a case where brown sugar was seized from the possession of the accused. The accused was convicted and sentenced holding that there was substantial compliance of Section 50 inasmuch as the police officer had asked the accused whether he would like to be produced before a Magistrate or a gazetted officer, to which he replied in the negative. There it was held : "On a bare reading of the provision it is clear that the statute provides a reasonable safeguard to the accused before a search of his person is made by an officer authorised under S. 42 to make it. The provision is also intended to avoid criticism of arbitrary and high-handed action against authorised officers. There it was held : "On a bare reading of the provision it is clear that the statute provides a reasonable safeguard to the accused before a search of his person is made by an officer authorised under S. 42 to make it. The provision is also intended to avoid criticism of arbitrary and high-handed action against authorised officers. The Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure keeping in view the severe punishment prescribed in the statute. The position is clear and it was also not seriously disputed before us that there was no compliance of the provisions of S. 50(1) of the Act before the search and seizure in the case were effected. Therefore, the search and seizure thus effected cannot be relied upon by the prosecution." A larger Bench of the Supreme Court in State of Punjab v. Baldev Singh, 1999 (3) Ker LT (SN) 3 Case No. 4 : (1999 Cri LJ 3672) held : "There is unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is in-built in S. 50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad." xx xx xx xx xx "The question of admissibility of evidence, which may be relevant to the question in issue, has thus to be decided in the context and the manner in which the evidence was collected and is sought to be used. An illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in S. 50 of the Act, cannot by itself be used an admissible evidence of proof of unlawful possession of the contraband on the accused." As there was non-compliance of Section 50 of the Act, the appellant is entitled to be acquitted. In the result this appeal is allowed. The appellant is found not guilty of the offence under section 21 of the N.D.P.S. Act and the conviction and sentence passed against her are set aside and she is acquitted. She will be released forthwith unless required in connection with any other case. Appeal allowed.