JUDGMENT - D.G. DESHPANDE, J.:---Heard Mr. Anil Lalla for the appellants and Mr. P. Singhal A.P.P. for the State. 2. These two appellants were accused Nos. 1 and 2 in N.D.P.S. Case No. 1472 of 1990 in which they were convicted by the Special Judge (Narcotics) Shri S.P. Davare by his order dated 15-7-1999 for offences under section 8(c) punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act") and they were sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for 1 year. There was one more accused by name Samuel Pushpadas Christian who was also facing trial along with the above two appellants, but he was acquitted of the charges. 3. Mr. Lalla raised only one question, which according to him goes to the root of the matter and effects the conviction and sentence of the appellants accused. He urged that there is no compliance to section 50 of the N.D.P.S. Act in the present case. He drew our attention to the panchanama, Exhibit 10' which is dated 25-9-1990. The following four lines of the panchanama which are relevant are reproduced as under: "Than Sr. P.I. Puntambekar and P.I. Pawar, disclosed their identity and informed them that they wanted to take their personal searches. P.I. Pawar asked them whether their searches to be taken by Class-I Officers, but they declined." 4. According to Mr. Lalla, panchanama is the document on which the case of the prosecution rests and nothing can be added to it by the witnesses in their oral evidence before the Court. According to him section 50 of the N.D.P.S. Act requires that accused should be made aware of their rights to have the search by Gazetted Officer or by Magistrate and since the panchanama, Exhibit 10 does not disclose that appellants-accused were made aware of their rights in this regard, the entire search becomes illegal. 5. Mr. Lalla also relied upon judgment of the Full Bench of the Supreme Court in the case of (The State of Punjab v. Baldev Singh etc.)1, in Criminal Appeal No. 396 of 1990, dt. 21-7-1999 reported in 2000(5) Bom.C.R. 235 wherein Full Bench i.e. Five Judges Bench of the Supreme Court has in clear terms laid down the effect of non-compliance of section 50 of the N.D.P.S. Act. 21-7-1999 reported in 2000(5) Bom.C.R. 235 wherein Full Bench i.e. Five Judges Bench of the Supreme Court has in clear terms laid down the effect of non-compliance of section 50 of the N.D.P.S. Act. Our attention was drawn to sub-paragraphs (2), (6) and (7) of paragraph No. 51 on page 263-264 of Bom.C.R., which reads as under: "(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (6) That in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from sub-section (1) of section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguard provided in section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;" Further our attention was drawn by Mr. Lalla to the evidence of P.W. 1 Sabir Mehmood and P.W. 2 Suresh Ramchandra Pawar so far as the compliance to section 50 of the N.D.P.S. Act is concerned. P.W. 1 Sabir Mehmood the panch witness has stated that the Police Officer asked the accused whether the accused wanted to be searched by the "Bada Officer". According to Mr. Lalla the word Bada Officer is not in consonance with the provisions of section 50 of the N.D.P.S. Act. We are however unable to accept the submission of Mr. Lalla so far as this witness P.W. 1 is concerned. Admittedly and obviously it has come on record that this witness is a hawker selling clothes at Fort. According to Mr. Lalla the word Bada Officer is not in consonance with the provisions of section 50 of the N.D.P.S. Act. We are however unable to accept the submission of Mr. Lalla so far as this witness P.W. 1 is concerned. Admittedly and obviously it has come on record that this witness is a hawker selling clothes at Fort. His educational qualifications are not known and therefore considering his occupation, it is most likely that this witness did not know the meaning of the word Gazetted Officer or the Magistrate, therefore, he appears to have used the word Bada Officer or Bada Saheb as is done in common usage and parlance. However, the fact remains that neither the panchanama nor P.W. 1 the panch has stated that the accused were informed of their rights under section 50 of the N.D.P.S. Act by the officers of the raiding party and/or they were asked whether they desire to be searched by Gazetted Officer or a Magistrate. 6. Our attention was also drawn by Mr. Lalla to the evidence of P.W. 2 Suresh Ramchandra Pawar the officer conducting the raid and in charge of the raiding party. Attention of this witness P.W. 2 was drawn during cross-examination to the panchanama and even though the witness has admitted that compliance to section 50 of the N.D.P.S. was necessary, there was no mention in panchanama that offer was given to the accused about getting their search conducted or done by a Gazetted Officer or a Magistrate. 7. In this regard it was contended by the learned A.P.P. that giving offer to the accused of getting their search by Investigating Officer was more than sufficient compliance because the class-I officer was higher in rank than the Gazetted Officer. He also contended that evidence of P.W. 1 and 2 and the panchanama as is come on record were sufficient to show that the prosecution has complied with the provisions of section 50 of the N.D.P.S. Act. 8. We are however unable to agree with the submissions made by the learned A.P.P. What section 50 requires is that the accused should be informed about the right to get the search done by or in presence of a Gazetted Officer or a Magistrate. The Supreme Court has also in the aforesaid judgment and in the paragraphs, which we have reproduced, led emphasis on this aspect. The Supreme Court has also in the aforesaid judgment and in the paragraphs, which we have reproduced, led emphasis on this aspect. Panchanama, Exhibit 10' nor the evidence of P.Ws. 1 and 2 prove that accused were made aware of this right or that accused were informed that search could be conducted by or before the Gazetted Officer or a Magistrate. 9. The Supreme Court has in the aforesaid judgment taken a strict view about the compliance of provisions of section 50 of the N.D.P.S. Act. Obviously and admittedly there is no compliance to section of N.D.P.S. Act in the instant case. Informing the accused whether they wanted search to be taken by the Class I officer, in our opinion is not sufficient considering the facts and circumstances of the case. 10. Both the appellants are in custody since 25-9-1990. They are in jail for more than 9 years as against the sentence of 10 years imposed upon them with one year in default sentence for non payment of fine. Considering, therefore, the facts and non-compliance of section 50 of the N.D.P.S. Act, they are entitled for acquittal. In the result, we pass the following order: ORDER The appeal is allowed. Conviction of both the appellants-accused under section 8(c) read with 21 of the N.D.P.S. Act passed on 15-7-1994 in Sessions Case No. 1472 of 1990 is set aside. They are acquitted of the offence. If they are not required in any other case, they should be released forthwith. Copy of this order be immediately sent to the jail authorities. Appeal allowed. -----