Judgment S. RAJENDRA BABU, J. ( 1 ) ). The original appellant Vinod being no more, his legal representatives are pursuing this appeal to vindicate his honour and also to obviate the obligation arising out of levy of substantial amount of fine upon the original appellant apart from sentence of imprisonment in respect of an offence arising under Section 21 read with Section 29 of the Narcotic Drugs and psychotropic Substances Act, 1985. Therefore, the application for substitution is allowed. ( 2 ) ). The charge against the original appellant is that on 2-10-1991 at about 2. 40 p. m. near Shukla Lodge, Bajaria, Telipura he was found to be in possession of brown sugar weighing 120 mg valued at Rs 120 meant for sale without licence, permit or authorisation. ( 3 ) ). The evidence put forth in the course of trial before the learned sessions Judge is in the shape of Exhibit 39 complaint and Exhibit 38 panchnama supported by the evidence of PW 7 Head Constable Bapu Bhosle. Apart from this material there was no other material to show that the appellant was in possession of the said brown sugar. The trial court noticed that both in the complaint and in the panchnama it was mentioned that prior to search of his person an understanding was given to the original appellant that if he desires, his search will be taken in the presence of an Executive magistrate or a gazetted officer and the appellant replied in the negative. However, in the course of evidence PW 7 Bapu Bhosle did not state this fact and the two panch witnesses who were also signatories to the panchnama did not support the case of the prosecution. The trial court concluded that such information, therefore, was not given to the appellant and without such information the search of the accused could not be relied upon. However, learned Judge further held that the non-compliance with Section 50 of the act has not resulted in any prejudice to him. On that basis the learned Judge found the appellant guilty and punished him to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 1,00,000 and in default to undergo rigorous imprisonment for 18 months. ( 4 ) ). On that basis the learned Judge found the appellant guilty and punished him to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 1,00,000 and in default to undergo rigorous imprisonment for 18 months. ( 4 ) ). On appeal, the High Court is of the view that it is apparent from exhibit 38 panchnama and Exhibit 39 complaint that before taking the search of the accused he was asked whether he wanted the search to be taken before an Executive Magistrate or a gazetted officer. On that basis the High Court found that it was amply established on record that the procedure contemplated under Section 50 of the NDPS Act had been fully complied with and there was no infirmity in the search, seizure and arrest of the appellant and on that basis proceeded to uphold the order made by the trial court. ( 5 ) ). Learned counsel for the appellant submitted that even assuming for a moment that reliance could be placed on panchnama (Exhibit 38) and the complaint (Exhibit 39), even in the absence of evidence of them who prepared the same or to the contents thereof, the requirement of Section 50 of the NDPS Act had not been complied with in the light of the decision of this court in K. Mohanan v. State of Kerala1. In that decision, it has been stated that if the accused who was subjected to search was merely asked whether he wants the search to be taken in the presence of an Executive Magistrate or a gazetted officer, it cannot be treated as communicating to him that he has a right under law to such search and, therefore, he submitted that there was non-compliance with the provisions of Section 50 of the NDPS Act. ( 6 ) ). Learned counsel for the respondent supported the view taken by the high Court. ( 7 ) ). The law enunciated by this Court in K. Mohanan is clear as to the manner in which Section 50 of the Act has to be complied with. Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive magistrate or a gazetted officer for the purpose of the search but inform him of his right in that behalf under the law. Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive magistrate or a gazetted officer for the purpose of the search but inform him of his right in that behalf under the law. The recital in Exhibit 38 and Exhibit 39 does not indicate the same. In that view of the matter, we set aside the findings recorded by the High Court that there was compliance with Section 50 of the Act. The view of the trial court that non-compliance with Section 50 of the Act does not prejudice the accused cannot be sustained for the requirement of the section is mandatory. If Exhibit 38 and Exhibit 39 cannot be used to establish search of the person of the accused, his possession of brown sugar is not proved. Hence we set aside the order of the trial court as affirmed by the High Court. The appeal is allowed accordingly.