JUDGMENT R.S. Garg, J. 1. Being aggrieved by the judgment dated 3-5-99, passed in Special Case No. 45/98 by the learned Special Judge (N.D.P.S.), Jabalpur, convicting the appellant under Section 20(b)(i) read with Section 8 of Narcotic Drugs & Psychotropic Substances Act (for short 'the Act') and sentencing him to undergo R.I. for four years and pay fine of Rs. 10,000/-; in default of payment of fine to undergo R.I. for three months, the appellant has filed this appeal. 2. The prosecution case in brief is that on 10-9-98 Asstt. Sub-Inspector Shukla received an information that accused Cheena Musalman @ Rajjab of Jhiria Pasiyana was carrying Ganja on Scooter No. MP 20-P/5492. After receiving the information, the same was recorded in Sanha No. 643 and the information was sent to CSP. This fact was recorded in Sanha No. 644. The police party thereafter proceeded to the spot and after laying the trap, arrested the accused in front of the house of one Lallu Painter. Under Ex. P-10, the required intimation was given to the accused and after seeking his no-objection, a search was taken by the police officer. In the search, about 10 kg. Ganja was recovered from the bag carried by the accused. Necessary panchnamasl memos were prepared on the spot and thereafter the accused was brought to the Police Station. The contrabands were kept in Malkhana and thereafter the first information report was registered. The information of the episode was sent to the Supdt. of Police, Jabalpur, thereafter the samples already drawn from the seized Ganja were sent to Forensic Science Laboratory, Sagar, who under their report informed the police that the sample sent for analysis was Ganja. After collecting the evidence and recording the statements of the witnesses, etc., the prosecution filed the challan. The learned trial Court after recording the evidence and hearing the parties, held that the prosecution was successful in bringing home the guilt. It accordingly convicted and punished the accused as referred to above. 3. Shri S.K. Nema, learned counsel for appellant has made manifold submissions. According to him, the accused was made a prey to save another person from whose possession the contrabands were recovered. According to him, there are material contradictions in the statements of the witnesses, and as the independent witnesses have not supported the prosecution case, the same deserve to be rejected by the Court. According to him, the accused was made a prey to save another person from whose possession the contrabands were recovered. According to him, there are material contradictions in the statements of the witnesses, and as the independent witnesses have not supported the prosecution case, the same deserve to be rejected by the Court. According to him, from the statement of D.W. 3 Dr. Khan, it would clearly appear that third degree method was applied against the accused, therefore, also he deserves to be acquitted. It was lastly contended that as there is no compliance of Section 50 of the Act, the accused deserves to be acquitted. 4. Learned counsel for the State submits that from Ex. P-10, it would clearly appear that notice under Section 50 of the Act was given to the accused and as the accused gave up his right to be searched in presence of a gazetted officer or a magistrate, he cannot, at the appellate stage, raise the objection regarding non-compliance of Section 50 of the Act. Learned counsel for the State also submits that the evidence collected during the search would not become inadmissible, and as the accused has no choice to be taken before a particular person, the partial compliance of Section 50 of the Act would protect the actions of the prosecution. I have heard the parties at length and have perused the records. 5. From Ex. P-9, it would appear that the investigating officer/the empowered officer had informed the accused that for the purposes of search, the accused could be taken to a gazetted officer or in the alternative if he accepts, his search can be taken by the said officer. This document has been signed by the accused. Thereafter from Ex. P-10, it would appear that the accused gave his consent for being searched by Shri D.K. Singh. Ex. P-10 is not a document written by the accused. It has been prepared by the police officials and signatures of the accused have been obtained on it. 6. In the matter of Anil Kumar Ram Avtar Gupta v. State of M.P., in an identical situation, following the judgments of the Supreme Court and the other Courts, this Court has taken the view that partial compliance of Section 50 of the Act would vitiate the trial. 6. In the matter of Anil Kumar Ram Avtar Gupta v. State of M.P., in an identical situation, following the judgments of the Supreme Court and the other Courts, this Court has taken the view that partial compliance of Section 50 of the Act would vitiate the trial. The Court had observed that as the accused was not properly apprised of his right of being searched before a gazetted officer or a magistrate, such partial compliance would not meet the mandatory requirements of Section 50 of the Act. 7. In the matter at Ramratan v. State of M.P. (1996 Criminal Cases Patrika, Pages 84, 85) (Criminal Appeal No. 126/93, decided on 12-12-95 at Gwalior Bench), this Court observed that if the accused was informed to be searched by a gazetted officer or the investigating officer, then the same was a partial compliance of mandatory requirement of Section 50 of the Act, and in such a case, the trial would stand vitiated. The High Court observed that it would be mandatory upon the prosecution/police officer to apprise the accused of his right flowing from Section 50 of the Act. 8. Learned counsel for the State placing his strong reliance on the judgment of the Supreme Court in the matter of AIR 1996 S.C. 2880 (Manohar Lal v. State of Rajasthan), submitted that the accused only has a right to be informed of his statutory rights, but he cannot ask the police officer that he be taken to a particular officer, therefore, if one single offer was given to the accused, it would not amount to partial compliance and as the cases relied upon by the learned counsel for appellant do not take into consideration the judgment of the Supreme Court in the matter of Manohar Lal (supra), the said judgments cited by the learned counsel for appellant do not interpret the law correctly and deserve to be over-ruled. 9. In the matter of Manohar Lal (supra), the question posed before the Supreme Court was whether non-grant of the option to the petitioner to be taken before a particular officer of his choice would vitiate the trial or not. 9. In the matter of Manohar Lal (supra), the question posed before the Supreme Court was whether non-grant of the option to the petitioner to be taken before a particular officer of his choice would vitiate the trial or not. In the context of the said case, their Lordships observed as under :-- "Learned counsel for the petitioner further submitted that another requirement of Section 50 of the NDPS Act is that the accused should also be given the option to choose whether he wanted to be searched in the presence of a Gazetted Officer or in the presence of a Magistrate. It is submitted that this further option was not given to the petitioner in the present case. We are unable to accept such a construction of Section 50 of the N.D.P.S. Act. The provisions only require the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused." 10. In the matter of Manoharlal (supra), the Supreme Court has clearly observed that the provision requires the option to be given to the accused to say whether he would like to be searched in presence of a Gazetted Officer or a Magistrate. The Supreme Court does not say that the right of the accused can be curtailed by the investigating/empowered officer. The Supreme Court does not say that the right of the accused can be curtailed by the investigating/empowered officer. According to the Supreme Court, Section 50 of the N.D.P.S. Act mandates that the option is to be given to the accused to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The Supreme Court observed that the choice of the nearest Gazetted Officer or nearest Magistrate has to be exercised by the officer making the search and not by the accused. The facts of the said case were different. In the said case, the accused was informed of his statutory right and the option was given to him. If the judgment of the Supreme Court is read in its true perspective, it would only show that grant of option is an absolute and unfettered right of the accused, but to avoid unnecessary delay, the accused can be taken to the nearest Gazetted Officer or the nearest Magistrate. However, the facts of the present case are different. Undisputedly, the option was not given to the accused. From Ex. P-9, it would only appear that the concerned officer had asked the accused as to whether he wanted to be searched in presence of a Gazetted Officer or by the empowered officer himself. Undisputedly, Ex. P-9 is a partial compliance and would not meet the mandatory requirement of Section 50 of the Act. 11. Learned counsel for the State firstly placed his reliance upon the judgment of the Supreme Court in the matter of State of Himachal Pradesh v. Priti Chandra Judgment Today 1995 (9) S.C. 411, but after going through the judgment of the Supreme Court in the matter of State of Punjab v. Baldev Singh, Judgment Today 1999 (4) SC 595, withdrew the objection. 12. As the prosecution has failed to prove the compliance of Section 50 of the Act, the evidence collected by the prosecution in a search which is contrary to the provisions of law would become inadmissible. The recovery of the contrabands suspect and the conviction and sentences of the accused would become bad and unsustainable in law. In view of the judgment of the Supreme Court in the matter of State of Punjab v. Baldev Singh (supra), the accused is acquitted of the charges. The recovery of the contrabands suspect and the conviction and sentences of the accused would become bad and unsustainable in law. In view of the judgment of the Supreme Court in the matter of State of Punjab v. Baldev Singh (supra), the accused is acquitted of the charges. If the accused is in jail, he be immediately released. The appeal is allowed. Fine amount, if deposited, be returned back to the appellant.