JUDGMENT - J.N. PATEL, J.:---By this appeal, the appellant challenges his conviction and sentence for having committed an offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) in Special Criminal Case No. 5 of 1994 decided on 20-06-1996 by the Special Judge, Nagpur, under which he came to be sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year. 2. In short, the prosecution case is that on 07-11-1993 Police Head Constable Bhaskar Kolhe along with his team of Officers of Narcotic Cell, Crime Branch, Nagpur, was on patrolling duty. At about 13-3 hours while they were at Indora square they received an information that Nilkanth Chandekar, r/o Ashok Nagar, wearing full shirt of cream colour and green colour full pant, is in possession of Gard and sells it to his customers, and at present he is sitting near the well of Municipal Corporation in the open ground in front of his house. On receipt of this information, H.C. Kolhe communicated the information to Shri Shukla, Assistant Commissioner of Police, on telephone who ordered them to conduct the raid immediately. The information was sent to the Assistant Commissioner of Police through police constable B.No. 4884. Two passers-by namely Kishor Tarachand Rodke and Nagorao Shankarrao Dhanvijay were called to act as Panch. They were apprised of the information and explained the purpose of the raid. Thereafter the police party along with panchas proceeded from Chamar Nullah to Char Khamba square. They parked their vehicles and went towards Ashok Nagar on foot. There they enquired about the Municipal Corporation's well and as per the information they noticed that the person of the given description was present at the site. The police party accosted him and informed him that he is to be searched as they had information that he was possessing packets of Gard. The said person was also informed of his right to be searched in presence of a Gazetted Officer or a Magistrate and an intimation came to be given under section 51 of the N.D.P.S. Act. The police party accosted him and informed him that he is to be searched as they had information that he was possessing packets of Gard. The said person was also informed of his right to be searched in presence of a Gazetted Officer or a Magistrate and an intimation came to be given under section 51 of the N.D.P.S. Act. As the said person did not express his desire to be searched in the presence of Gazetted Officer or Magistrate, he was offered search by the police party and the panchas. The appellant/accused is supposed to have taken out a small transparent polythene packet from the right pocket of his green colour full pant containing very small 12 packets, these packets were found to be containing Gard. The contents were weighed together and was about 600 mg. of Gard. Out of the total contents of the packets, 100 mgms. of Gard powder was drawn as sample and sealed separately. The search and seizure panchanama was completed. The appellant/accused was informed that he has been arrested for being in possession of narcotic drug. Thereafter the police party came to Police Station Panchpaoli where H.C. Kolhe lodged a written report with the Duty Officer. P.S.I. D.D. Shukla who registered Crime No. 553 of 1993 against the accused for having committed an offence under section 21 of N.D.P.S. Act. H.C. Kolhe handed over the sealed packets to P.S.I. Shukla who affixed his own seal as "DDS" and caused the property to be entered in the Muddemal register for despatching it to chemical analyser for analysis. As the raid was successfully completed, H.C. Kolhe filed his report under section 57 of the N.D.P.S. Act. On receipt of the report of chemical analyser, the police filed charge-sheet against the accused in the Court of Special Judge, Nagpur. 3. On 04-01-1995 the case of the appellant was taken up for trial before the learned Special Judge and charge (Ex. 11) came to be framed against the appellant/accused. The accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined in all five witnesses, i.e. two panchas, P.C. Prabhakar, P.H.C. Bhaskar Kolhe and P.S.I. Shukla. The accused did not examine himself or any witness on his behalf but merely relied on certain documents, particularly certified copy of the judgment in S.T. No. 616 of 1992 decided on 12-11-1993. The prosecution in support of its case examined in all five witnesses, i.e. two panchas, P.C. Prabhakar, P.H.C. Bhaskar Kolhe and P.S.I. Shukla. The accused did not examine himself or any witness on his behalf but merely relied on certain documents, particularly certified copy of the judgment in S.T. No. 616 of 1992 decided on 12-11-1993. The defence of the accused was that he has been falsely implicated in the case by H.C. Kolhe. 4. The learned Special Judge found that the prosecution has proved that on 07-11-1993 at about 02-45 p.m. at Ashok Nagar, Nagpur, the appellant/accused was found in possession of 600 mgms. of brown sugar and proceeded to convict and sentence him for having committed an offence punishable under section 21 of the N.D.P.S. Act. 5. Mr. Jagzap, learned Counsel for the appellant/accused, submitted that the H.C. Kolhe is in the habit of falsely implicating innocent citizens by using habitual panchas and preparing false documents . It is submitted that in one such case, i.e. S.T. No. 616/92 (State of Maharashtra v. Pintu @ Charanjit s/o Ganeshdas Sharma)1, decided on 12-11-1993, the trial Court has passed strictures against H.C. Kolhe in this regard. It is specifically urged before us that the appellant/accused happened to attend the trial of Pintu as he was from his neighbourhood and in the course of the trial of Pintu this appellant/accused had heated exchange with H.C. Kolhe which led to his false implication by the police. 6. It is submitted that the prosecution case is based on forged documents which have been prepared to suit their case and even the first information report has been tampered by over writing. Mr. Jagzap submitted that the investigating agency failed to comply with the mandatory provisions of section 50(1) of the N.D.P.S. Act as the appellant/accused was not forewarned of his right to be searched in the presence of a Gazetted Officer or a Magistrate. He further submitted that though it is the case of the prosecution that a written notice has been given to the appellant/accused, the panch witnesses rather go to say that it was a printed notice which demonstrate that all these documents were prepared in advance by H.C. Kolhe. It is submitted that on the notice (Ex. He further submitted that though it is the case of the prosecution that a written notice has been given to the appellant/accused, the panch witnesses rather go to say that it was a printed notice which demonstrate that all these documents were prepared in advance by H.C. Kolhe. It is submitted that on the notice (Ex. 24) the time 15-00 hours came to be mentioned after the charge sheet was filed in the Court as the copy of the charge sheet furnished to the accused as well as to the Prosecutor in the trial Court did not contain any time and this column is blank. This, according to Mr. Jagzap, supports the contention of the accused that the prosecution has forged documents to implicate him in the case. It is also submitted that the search and seizure panchanama (Ex. 23) also do not mention the time when notice was given to the appellant/accused under section 50(1) of the N.D.P.S. Act. Mr. Jagzap submitted that non compliance of section 50(1) is evident from the evidence of the panchas who do not support the prosecution on this point. It is brought to our notice that the panchas did not support the prosecution on the point that the accused was given proper warning about the information received by the police and why they wanted to take his search. The Panch Kishor Rodke (P.W. 1) does not support the prosecution on the count of warning required to be given to the appellant/accused but merely states before the Court that a written document was given to him for reading and it is mentioned therein that any one else was required to be called for search and that the panchas proceeded to search the police and then the appellant/accused took search of panchas, and therefore, in absence of compliance of mandatory provision of section 50(1) the search and seizure alleged to be made from the appellant/accused cannot be held to be legal and on this point alone the accused deserves to be acquitted. 7. Mr. Jagzap submitted that H.C. Kolhe in his evidence before the Court does not state that the accused was made aware of his right to be searched in the presence of a Gazetted Officer or a Magistrate and his evidence is restricted to issuing notice (Ex. 7. Mr. Jagzap submitted that H.C. Kolhe in his evidence before the Court does not state that the accused was made aware of his right to be searched in the presence of a Gazetted Officer or a Magistrate and his evidence is restricted to issuing notice (Ex. 24) in writing and that he was asked as to whether he wanted to take search of police and panchas and thereafter the search of the appellant/accused was taken. This is nothing but partial compliance of the mandatory provision of section 50(1) which has been deprecated by this Court in the case of (Hamid Khan v. State of Maharashtra)2, 1996(3) C.C.R. 392. 8. Mr. Jagzap assailed the credibility of the panchas on the ground that the evidence of the two panchas, namely Kishor Rodke (P.W. 1) and Nagorao (P.W. 5), do not inspire confidence as they are unable to tell about the place where the prosecution is alleged to have taken the search of the appellant/accused and seized from him the contraband, as claimed by the prosecution. This, according to Mr. Jagzap, goes to show that the panchas never went to the spot along with the police party and their signatures were obtained at the office of the Crime Branch. Mr. Jagzap also tried to persuade us that the place at which the police party is supposed to have accosted the appellant/accused is near the police lines and no person would dare to sell narcotic drugs at such place at the risk of being caught and arrested. Further that the information about the appellant/accused was received by the police party well in advance and it was only after about one hour that the police party could reach the spot and accost him. In this back ground, if no money is found on the person of the accused in his search, it cannot be said that the appellant/accused was indulging in selling of narcotic drugs and, therefore, in the absence of seizure of any sale-proceed from the appellant/accused the learned trial Court ought to have considered his case under section 27(a) of the N.D.P.S. Act as the quantum of brown sugar alleged to have been seized from the appellant/accused was very meagre, i.e. 600 mgms. The learned Counsel for the appellant also drew our attention towards the evidence of panch witness Kishore Rodke (P.W.1) who, in his cross-examination, has clearly stated that the powder was taken together and was weighed along with the paper and, therefore, considering the total weight of the powder and the paper to be 600 mgms. one does not know what was the exact weight of the Gard seized from the appellant/accused and, therefore, the benefit should go to the appellant/accused insofar as the total quantity of brown sugar seized from the appellant/accused is concerned. 10. Mr. Jagzap also submitted that the prosecution has miserably failed to show that the alleged contraband seized from the appellant/accused was actually entrusted to the Malkhana incharge of Panchpaoli Police Station . It is submitted that the prosecution has not examined the Head Constable on duty who was incharge of Malkhana to prove that the contraband article seized from the appellant/accused was entrusted to him and that he had kept it in safe custody and it is the Malkhana incharge who handed over it to Police Constable Prabhakar (P.W. 3) . On the other hand, P.C. Prabhakar (P.W. 3) in his evidence claimed that he has made entry in the muddemal register and on his own carried the sample to the chemical analyser. This, according to Mr. Jagzap, creates doubt in the prosecution case. It is further submitted that the prosecution has failed to prove that which packet was sent to the Chemical Analyser for analysis as the sealed packet received by the chemical analyser has not been measured and the same does not find place in the C.A. report and, therefore, the Court should hold that the prosecution has failed to prove that what was seized from the appellant/accused was actually sent to Chemical Analyser or analysis. 11. Mr. Jagzap has also assailed the report of Chemical Analyser on the ground that the report does not give the details as to in what manner the sample was analysed so as to come to a conclusion that it contained Heroin and, therefore, the report of Chemical Analyser ought not to have been accepted without examining the Chemical Analyser. The prosecution having failed to examine the chemical analyser who has carried out the test of the sample, it has deprived the appellant/accused of an opportunity to challenge the same. 12. In the last, Mr. The prosecution having failed to examine the chemical analyser who has carried out the test of the sample, it has deprived the appellant/accused of an opportunity to challenge the same. 12. In the last, Mr. Jagzap tried to show that the F.I.R. (Ex. 26) which is recorded in the printed form does not bear the signature of complainant H.C. Kolhe, therefore it cannot be accepted as F.I.R. and the Court ought not to have allowed it to be taken on record marked (Ex. 26), as the prosecution has not proved that it is the same F.I.R. which has been lodged by H.C. Kolhe, the appellant/ accused deserves to be acquitted. 13. Mrs. Khade, learned A.P.P., submitted that in this case the prosecution has established the charge against the accused beyond shadow of doubt. The witnesses of the prosecution, namely panchas and H.C. Kolhe, have given evidence to prove the search and seizure of brown sugar from the person of the accused and their evidence is consistent, cogent and reliable. It is submitted that there is no contradiction brought on record to discredit the testimony of these witnesses. The learned A.P.P. submitted that the investigating agency has followed the procedure as prescribed under section 50 of N.D.P.S. Act. H.C. Kolhe has in so many words stated before the Court that he disclosed his intention of search to the accused about Gard. He also issued notice in writing to the accused as to whether his search is to be taken in presence of a Gazetted Officer. He has proved the notice (Ex. 24) which clearly records that if the appellant/accused desires he can be searched in the presence of a Gazetted Officer or a Magistrate and, therefore, it cannot be said that the prosecution case suffers from non-compliance of section 50. 14. As regards the contention of the appellant/accused that the prosecution has not established all the links in chain about the search and seizure of the contraband till it was sent to chemical analyser, the learned A.P.P. submitted that the prosecution has examined P.S.I. Shukla (P.W. 2), P.C. Prabhaker (P.W. 3) and H.C. Kolhe (P.W. 4). 15. 14. As regards the contention of the appellant/accused that the prosecution has not established all the links in chain about the search and seizure of the contraband till it was sent to chemical analyser, the learned A.P.P. submitted that the prosecution has examined P.S.I. Shukla (P.W. 2), P.C. Prabhaker (P.W. 3) and H.C. Kolhe (P.W. 4). 15. On examining the case of the prosecution in the light of the arguments advanced by the learned Counsel for the appellant as well as the learned A.P.P. before us, we find that in the facts of the case the prosecution has failed to bring evidence on record to show that they have complied with the provisions of section 50 of the N.D.P.S. Act and this itself is sufficient to allow the appeal. Section 50 reads as under: "50. Conditions under which search of persons shall be conducted- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female." It is settled law that compliance of section 50 is mandatory. The law on this point came to be summed up by the Apex Court in its judgement in the case of State of Punjab v. Baldeo Singh)3, 1999 S.A.R.(Cri.) 473(S.C.) presided over by Five Judge of the Apex Court. While considering the question as to what is the effect of non-compliance of the provisions of section 50 of the N.D.P.S. Act, the Court relied upon the decision of (State of Punjab v. Balbir Singh)4, 1994(3) S.C.C. 299 and held that the effect of such failure has to be borne in mind by the Court while appreciating the evidence in the facts and circumstances of each case. It was held as under: "(5) on prior information the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search or the person is made and such person should be informed that if he so required he shall be produced before the Gazetted Officer of the Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or Magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed, whether the person opted for such a course or not would be a question of fact." The Court then proceeded to refer the ''Three Judges". Bench decision in (Saiyad Mohd. Saiyad Umar Saiyad others v. State of Gujarat)5, (1995)3 S.C.C. 610 where the Court considered the provisions of section and opined. (a) We are unable to share the High Court's view that in cases under N.D.P.S. Act it is the duty of the Court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by section 50, the Court is duty bound to conclude that the accused had not had the benefit of the protection that section 50 affords; that therefore, his possession of articles which are illicit under the N.D.P.S. Act is not established, that the precondition for his having satisfactorily accounted for such possession has not been met; and to acquit the accused." The Court also examined the case in (State of Himachal Pradesh v. Shri Prithi Chand another)6, (1996)2 S.C.C. 37 in which the Court opined," compliance of the safeguards of section 50 is mandatory obliging the officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit articles has to be satisfactorily established before the Court. The possession of illicit articles has to be satisfactorily established before the Court. The officer who conducts the search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114, illustration (e), Evidence Act that the official duty was properly informed, therefore does not apply ..........." 16. We find that there can be no doubt about the importance of compliance of section 50 of N.D.P.S. Act by the Investigating Officer who carries out the search and the seizure as the protection given by section 50 is a valuable right to the offender and compliance thereof intended to be mandatory. 17. The prosecution has examined Kishor (P.W. 1) and Nagorao (P.W. 5) who acted as panchas at the time the search and seizure took place and H.C. Kolhe (P.W. 4) who conducted the raid on the basis of the information received by him that accused is possessing Gard for sale. The evidence of all these three witnesses do not show that at the time of search and seizure the appellant was apprised of his right that he can be taken without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. The evidence of Kishor (P.W. 1) on the point is that the police disclosed to the accused that they have received information that something is with the person (accused) and therefore they went to take his search. This witness also stated that a written document was given to the accused for reading. It was mentioned therein that anybody else is to be called for the purposes of search. This witness further stated that then we took the search of police and that person took the search of we panchas. The other panch Nagorao (P.W. 5) has deposed before the Court, "then police disclosed the intention of his search and asked him (accused) whether he wants to take the search of police and panchas. This witness further stated that then we took the search of police and that person took the search of we panchas. The other panch Nagorao (P.W. 5) has deposed before the Court, "then police disclosed the intention of his search and asked him (accused) whether he wants to take the search of police and panchas. A notice in writing was also given to him (accused) about the same as to whether the other officer should be called for the search to which the accused denied. Ex.24 notice was given to him which was signed by me, other panch and accused also gave his signature on it." The evidence of these two panchas who are the only independent witnesses examined by the prosecution in support of their case do not in any manner reflect that the appellant/accused was forewarned of his right to be searched in presence of a Gazetted Officer or a Magistrate. Not only this, the evidence of H.C. Kolhe (P.W. 4) is also lacking on this aspect, as H.C. Kolhe states about it before the Court as under : "We came to the spot of information. We saw that the accused before the Court was sitting near the well. He was caught on the spot. Then I disclosed the intention of his search about Gard. I issued notice in writing to the accused as to whether his search is to be taken in presence of other Gazetted Officer. Ex. 24 notice now shown to me is the same. It is signed by panchas and attested by me. Accused gave writing under his signature." H.C. Kolhe (P.W. 4) does not say in his evidence before the Court that he had forewarned the appellant/accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate. He only states that he issued notice in writing to the accused as to whether his search is to be taken in presence of other Gazetted Officer. There also the witness does not mention that the accused was entitled to be searched in the presence of a Gazetted Officer or a Magistrate. Therefore on scrutinizing the evidence of these three witnesses, we find that the prosecution has not led any substantive evidence before the trial Court as regards the compliance of the provisions of section 50 of the N.D.P.S. Act. Therefore on scrutinizing the evidence of these three witnesses, we find that the prosecution has not led any substantive evidence before the trial Court as regards the compliance of the provisions of section 50 of the N.D.P.S. Act. The learned A.P.P. vehemently argued that all these three witnesses have specifically mentioned about the notice Ex. 24 and Ex. 23 also records the fact that the appellant/accused was given due caution of his right to be searched in the presence of a Gazetted Officer or a Magistrate. In our opinion, giving of notice Ex. 24 and recording the said fact in the panchnama Ex. 23 cannot be considered as substantive evidence before the Court on the basis of which the Court can arrive at a finding that there has been due compliance of the requirements of section 50(1). The search panchanama Ex. 23 and notice Ex. 24 can only be relied upon by the prosecution for the purposes of corroborating their case before the Court. It is not substantive evidence and in absence of any substantive evidence, it cannot be said that the notice Ex. 24 and the search panchanam Ex. 23 is sufficient to establish that the prosecution has complied with the requirement of section 50(1). 18. As we have come to the conclusion that the prosecution has failed to comply with the mandatory requirement of section 50(1), the search and the seizure conducted by the raiding party stand vitiated and the seizure of contraband from the appellant/accused will have to be ignored for the purposes of establishing the guilt of the accused under section 21 of the N.D.P.S. Act. In the result, we allow this appeal. The conviction and sentence of the appellant/accused for having committed an offence punishable under section 21 of the N.D.P.S. Act is quashed and set aside. The appellant/accused is acquitted of the offence punishable under section 21 of the N.D.P.S. Act. He shall be released forthwith, if not required in any other case. The fine amount, if paid, shall be refunded to the appellant/accused. Appeal allowed. -----