JUDGMENT 1. - The appellant Gehru has assailed the judgment and sentence dated 15.3.95 passed by learned Addl. Sessions Judge No. 1, Chittorgarh whereby the appellant has been convicted under Section 8 read with 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/-. 2. Briefly stated, the prosecution case is that contraband article opium about 1 Kg. 50 gms was recovered on taking search by Vijendra Vyas, S.H.O. Kotwali Chittorgarh on 18.4.94 at about 10.30 A.M. while the appellant was to going from the fields on foot towards Chittorgarh. The opium was tied by the accused in his `dhoti' in a polythene packet. Before taking search, the appellant was informed of his right under Section 50 of the Act that he could give search before a Magistrate or a Police Gazetted Officer but, he gave his consent to be searched by S.H.O. Shri Vijendra Vyas. 3. The learned counsel for the appellant has vehemently argued that the prosecution has not complied with the mandatory provision under section 50 of the Act. He drew my attention to the memo Ex.P. 2 prepared for complying with the said provision and argued that it is not in compliance with the requirement of Section 50 of the Act. There is material contradiction in the statements of the witnesses also regarding the compliance of said provision. It is also very doubtful that the appellant consented to give his search to the S.H.O. Vijendra Vyas, looking to the writing on the back of Ex.P. 2 containing the said consent. He reified upon the decision Banti @ Himta Ram v. State of Rajasthan in S.B. Criminal Appeal No. 587 of 1996 of this Court (Hon'ble Mohd. `Yamin, J.) and also my own judgment Smt Geeta @ Sugna v. State of Rajasthan in S.B. Criminal Appeal No. 397/96 D/d. 9.5.97 . It is contended that due to non-compliance of the provision of section 50 of the Act, the whole trial stands vitiated and the appellant deserves to be acquitted. 4. I have carefully considered the above contention. PW/7 Vijendra Vyas, Recovery Officer and S.H.O., Kotwali Chittorgarh has proved the memo Ex.P 2 prepared in order to comply with the provisions of Section 50 of the Act. 4. I have carefully considered the above contention. PW/7 Vijendra Vyas, Recovery Officer and S.H.O., Kotwali Chittorgarh has proved the memo Ex.P 2 prepared in order to comply with the provisions of Section 50 of the Act. Ex.P 2 shows that the appellant was informed that if he so wanted, his search could be taken before `Magistrate' or `Police Gazetted Officer'. Thus, the option given to the appellant for taking search before a Magistrate or a Gazetted Officer was limited or confined in this memo to Gazetted Officer belonging to the police department. A bare perusal of the Section 50 reveals that option must be given to the person for the search before a Magistrate or a Gazetted Officer who can be an employee of any department. Thus, the option has not been offered by memo Ex.P. 2 as required by the provision under section 50 of the Act. The statement of witnesses are contradictory to the contents of Ex.P 2 PW/7 Vijendra Vyas, Recovery Officer has deposed that the accused was informed of his right to have the search before a Magistrate or a Gazetted Officer whereas, in Ex.P. 2 the option was confined to `Police Gazetted Officer', PW/6 Nandkishore has also given the same statement but, PW/3 Prabhu Shankar has stated that the accused was informed that he could get himself searched before a Police Officer, Magistrate or the Recovery Officer. Thus, the prosecution evidences, oral and documentary as stated above is quite inconsistent and contradictory which leads to the conclusion that option was not given to the appellant in accordance with the provisions of Section 50 of the Act. Moreover, when we peruse Ex.P. 2, it is found that the front page has been written by Vijendra Vyas but on the back, the writing containing the consent of the appellant for search by Vijendra Vyas is of a different person with signature of Vijendra Kumar, S.H.O. below the said writing. It is not comprehensible that when the memo was prepared by Vijendra Kumar and back of the memo was written in continuation then why it could not be in the handwriting of Vijendra Kumar whereas, it is not in his own handwriting. It also therefore creates reasonable doubt whether the appellant really gave his consent for search by Vijendra Kumar, S.H.O. 5. It also therefore creates reasonable doubt whether the appellant really gave his consent for search by Vijendra Kumar, S.H.O. 5. Learned Public Prosecutor contended that it is sufficient to offer the option for only one authority, the Magistrate or the Gazetted Officer. Even if Ex.P 2 mentions `Police Gazetted Officer' and option `Magistrate' has also been given then, it does not violate the mandatory provision of Section 50 of the Act. I am unable to agree to this contention. In the instant case, the Recovery Officer has offered the option for both the authorities then it must be for any Gazetted Officer and not limited to `Police Gazetted Officer'. Therefore, it is not in conformity with the mandatory requirement of Section 50 of the Act. The contention raised by the learned counsel for the appellant is fully supported by the decisions referred above. As a result of the above discussion, I am of the view that the prosecution has not complied the mandatory provisions contained in Section 50 of the Act and it vitiates the whole trial resulting in the acquittal of the appellant. 6. In the result, the appeal is hereby allowed and the impugned judgment and sentence dated 15.3.95 is hereby set aside. The appellant Gehru is hereby acquitted of the offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He shall be released forthwith if not required in any other caseAppeal allowed. *******