JUDGMENT T. Vaiphei, J. 1. This criminal jail appeal is directed against the judgment and order dated 23.12.1994 passed by the learned Special Judge No. 1, Manipur West Imphal in Special Trial (NDPS) No. 9 of 1993 convicting the Appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Act" for short) and the order dated 8.4.2002 sentencing her to undergo 10 years R.I. 2. I have heard Mr. Kh. Tonjao Singh, the learned Counsel for the Appellant. I have also heard Mrs. Ch. Bidyamani Devi, the learned Public Prosecutor (H.C.). 3. The material facts of the case may be briefly stated. It is the date of the prosecution that on 18.12.1991 at about 9.30 P.M., while a police party of the B.A.P.S led by the Sub-Inspector, Shri M. Tomba Singh was on a patrolling duty along national High way No. 39, Moreh (P.W.1), a secret information was received from certain sources about the selling of No. 4. Heroin powder by the appellate at Moreh Dalpati. After reducing the information in to writing the said police party rushed to the spot and found the Appellant near Haokip Kerosene Oil Agency Depot. The police party arrested the Appellant at the spot in the presence of two local witnesses and after giving her option, they made body search on her and in the course of the search, they recovered 15 grams of heroin No. 4 powder from her possession, which was seized by preparing a seizure memo in the presence of the witness. The sample of seized article was thereafter sent to the expert for examination and same being opened to be positive by the expert, the police charge sheeted the accused to stand trial. 4. After hearing the Counsel for the Appellant and the prosecution, the learned Special Judge framed the charge against the Appellant Under Section 21 of the Act to which the Appellant pleaded not guilty and claimed to be tried. In the course of the trial, the prosecution examined as many as 4 witnesses to substantiate the charge against the appellate while the Appellant examined 3 witnesses including herself in support of her defence. In the course of the trial, the prosecution examined as many as 4 witnesses to substantiate the charge against the appellate while the Appellant examined 3 witnesses including herself in support of her defence. At the conclusion of the trial, the learned Special Judge by the impugned judgment found the Appellant guilty of the offence punishable under Section 21 of the Act and sentenced her to undergo RI of 10 years as noted earlier. 5. At the time of hearing of the appeal, Mr. K Tonjao Singh, the learned Counsel for the Appellant confined him self to the foil owing submissions: (i) the police officer arresting the Appellant violated the provisions of Section42(i) and (2) of the Act by not reducing into writing the information about the alleged selling of heroin powder by her and for not sending forthwith a copy of such writing to his immediate superior (ii) the arresting police officer also did not inform the Appellant of her right to be searched before a Magistrate or a Gazetted officer before conducting search on her person thereby violating the mandatory provisions of Section 50 of the Act and (iii) the learned special Judge did not consider the evidence of the defence witnesses in perspective. Thus, according to the learned Counsel for the Appellant, the impugned judgment and sentence are bad in Law and ought to be set aside. On the other hand. Mrs. Ch. Bidyamani Devi, the Ld. Public Prosecutor, supported the impugned judgment and submitted that the police have substantially followed the procedures prescribed by the Act at the time of arrest of the Appellant and seizure of the incriminating articles, and as such, no interference is called for in the impugned judgment and order of sentence passed against the Appellant. 6. Before coming to the legal aspects of the case, let me proceed to examine the evidence on record on the facts and circumstances in which the Appellant was arrested by the police. P.W.1 is the Sub-Inspector who led the police patrolling party and who arrested the Appellant. He deposed that on 18.12.1991 at about 9.30 P.M., he got a secret information to the effect that the Appellant was selling Heroin Powder at Moreh Dalpati situated near National Highway No. 39 and that he reduced that information in writing before his departure. P.W.1 is the Sub-Inspector who led the police patrolling party and who arrested the Appellant. He deposed that on 18.12.1991 at about 9.30 P.M., he got a secret information to the effect that the Appellant was selling Heroin Powder at Moreh Dalpati situated near National Highway No. 39 and that he reduced that information in writing before his departure. He further deposed that he thereafter rushed to the spot on foot along with some police constables including one woman constables and that he know the Appellant earlier and on their way to Dalpati village, they came across the Appellant moving just in front of Haoki Kerosene Oil Depot. According to his deposition, they rounded up the Appellant. To take a pause here, it is the case of the defence that the Appellant was arrested by the police at about 9.30 a.m. about three years before from her house when she was preparing meal in the kitchen. At the very outset, it may be noticed from the depositions of P.W. No. 1 that this is a case in which the arrest was made after receiving information about the alleged selling of heroin powder by the accused and not a case in which he was on patrol duty and on motion before proceeding to apprehend the Appellant as evident by his statement that he reduced the information into writing before his departure. 7. The power of entry, search, seizure and arrest without warrant or authorisation and condition for search are engrafted in Sections 42 and 50 of the Act, which reads thus: 42. Power of entry, search, seizure and arrest without warrant or authorisation. 7. The power of entry, search, seizure and arrest without warrant or authorisation and condition for search are engrafted in Sections 42 and 50 of the Act, which reads thus: 42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, as is empowered in this behalf by general a special order of the State Government, if he was reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may Finnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance and (d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence of facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief (2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. 50) Conditions under which search of persons shall be conducted: (1) When any officer duly authorised under Section42 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. 7A. It is now a settled proposition of law that under Section 42(2) the empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith sand a copy thereof to his immediate official superior. If there is total non-compliance with the provisions, the same affects the prosecution case. To that extent, it is mandatory (see State of Punjab v. Balbir Singh (1994) 3 SCC 299 ). The object of the Act is to make stringent provision for control and regulation of operations relating to those drugs and substances. At the sometime, to avoid harm to innocent persons and to avoid abuse of the provisions by officers, certain safeguards are provided which have to be observed strictly Therefore, Section 42(2) of the Act makes it obligatory that such of the officers mentioned therein, on receiving an information should reduce the same to writing and also records reason for the belief while carrying out arrest on search as provided under the proviso to Section 42(1). In the words of the Apex Court, keeping in mind the gave consequences which are likely to follow on proof of possession of illicit articles under the Act, namely, the shifting of the onus to the accused and severe punishment to which he becomes liable, the legislature has enacted and provided certain safeguards in various provisions of the Act including Sections 42 and 50 of the Act. After referring to a host of judgments, the Constitution Bench of the Court held that the provisions of Sections 42 and 50 are mandatory and their non-compliance would render the investigation illegal. It was reiterated that severer the punishment, greater the care to be taken to see that all the safeguards provided in the statute are scrupulously followed. The safeguards mentioned in Section 50 are intended to serve dual purpose-to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the section, the prosecution is to suffer for the consequences. The legitimacy of the judicial process may come under a cloud of the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice (see Beckodan Abdul Rahman v. State of Kerala (2002) 4 SCC 229 ). I need say no more. 8. Adverting to the facts of the case, the undisputed facts on record are that the Appellant was arrested by the P.W.1 on the basis of prior information received by him before his departure to the spot. Therefore, it was incumbent upon him to reduce the information in question to writing and send a copy thereof forthwith to his immediate superior officer. Whether he did so is the moot point. As stated earlier in his deposition in Court, he stated that he reduced the information in writing and send a copy thereof to his immediate superior officer. But in the FIR (Ext. D/4), this aspect was not mentioned. P.W.4, who was the officer-in-charge of BADS and the superior officer of P.W.1 at the relevant time in his cross-examination stated that he did not know whether the information received was reduced into writing. Moreover, this deposition of P.W.1 was denied by the defence in his cross-examination. Coupled with the fact that the case of the Appellant being she was arrested in the morning at 9.30 A.M. From her house, it is the duty of the prosecution to produce in the trial Court the General Diary containing the information alleged to have been recorded by P.W. 1. Coupled with the fact that the case of the Appellant being she was arrested in the morning at 9.30 A.M. From her house, it is the duty of the prosecution to produce in the trial Court the General Diary containing the information alleged to have been recorded by P.W. 1. Normally, such production of G.D. may not be called for unless the defence made a motion in this behalf. But on a conspectus of this case. I am of the view that non production of the entry regarding the said information in the G.D. makes the case of the prosecution suspect and at the same time persuades me to hold that such information was not reduced into wilting by P.W.1 before his departure for arresting the Appellant. Consequently, I am inclined to agree with the a submission of the learned Counsel for the Appellant that the mandatory provisions of Section 42(1) and (2) were not complied with by the investigation before arresting the Appellant. 9. Coming now to the second limb of the contention of the learned Counsel for the Appellant that the provision of Section 50 of the Act has been violated, it may be noticed that the decision of the Apex Court referred to earlier has concluded that Section 50 of the Act is mandatory in nature. The next question to be determined is whether the police complied with Section 50 of the Act. It is the case of the prosecution that P.W.I and 2 proposed her to be searched with W/ constable either before a Magistrate or a Gazetted Officer before witnesses. It maybe noted that no independent witnesses were examined to support the case of the prosecution but this is no reason to discard the evidence of police officials. Let me scrutinise the depositions of P.W.1 and P.W.2 more carefully. P.W.1 deposed that he asked the Appellant whether she wanted to be produced before the nearest Magistrate or a Gazetted Officer for making the search and that the Appellant replied that the body search could be made then and there as there was a lady constable. He went on to day that it was after obtaining the consent and option of the Appellant that he asked the lady constable, namely, Ksh. Pushaprani Devi (P.W. 2) to make the body search on the accused in presence of all of them including the said two civilian witnesses. He went on to day that it was after obtaining the consent and option of the Appellant that he asked the lady constable, namely, Ksh. Pushaprani Devi (P.W. 2) to make the body search on the accused in presence of all of them including the said two civilian witnesses. P.W.2 also corroborated the statements of P.W. 1 by deposing that before search, she asked the Appellant whether she wanted herself to be searched in presence of a Gazetted Officer. She also deposed that P.W.1 also put the same question to the Appellant and that the Appellant replied that the body search could be made then and there on the spot without being produced before the Gazetted Officer. She then deposed that it was after obtaining her concert that she made search on her body in the presence of the witnesses and the party. 10. Without dispecting the truth of the aforesaid depositions of P.W.1. and 2, let me proceed to examine whether the offer of P.W.1 and 2 to conduct search on her person before the nearest Magistrate or Gazetted Officer on the aforesaid facts and circumstances can be said to have complied with or substantially complied with the provision of Section 50 of the Act. From the statements of P.W.1 and P.W.2 it becomes apparent that they merely gave the Appellant the option to be searched before a Magistrate or a Gazetted Officer and nothing more. Plainly stated, the Appellant was not apprised of her right to be searched before a Magistrate or a Gazetted Officer. In K. Mohanan v. State of Kerala (2000) 10 SCC 222 , 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 Executive Magistrate or a Gazetted Officer, it cannot be treated as communicating to him that he has a right under law to such search. Accepting this contention, the Apex Court held that 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. Accepting this contention, the Apex Court held that 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. Again in Beckodan Abdul Rahman's case (supra), the compliance with Section 50 was held to have been fulfilled on the officer searching the accused by asking "whether I should search him in the presence of senior officers or a Gazetted Officer". The Apex Court held that the accused was required to be apprised of his right conferred under Section 50 by giving him the option to search being made in the presence of a Gazetted Officer or a Magistrate. In the instant case also, it is an admitted fact that the Appellant was not apprised of her right to be searched in the presence of a Magistrate or a Gazetted Officer. She was simply asked whether she wanted to be produced before a Magistrate or Gazetted Officer. Therefore, the mandatory provision of Section 50 has not been complied with by the police before conducting search on the Appellant. 11. On the facts and circumstances available on record, it is thus evident that the police while arresting and conducting search on the appellant violated the provisions of Section 42 and 50 of the Act which are held to be mandatory in nature. Therefore, violation of the aforesaid provision of law would render the investigation illegal. But then whether these violations per se would render the entire proceeding illegal and thereby entitling the appellant to acquittal is the moot question. Section50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires since such a search would impart much more authority and credit worthiness to the proceeding while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be made aware of his right and that can be done only by the authorised officer informing him. To afford such an opportunity to the person to be searched, he must be made aware of his right and that can be done only by the authorised officer informing him. Since the contraband was seized as a result of illegal search and seizure in contravention of Section 50 of the Act, it cannot be used to fasten that liability of unlawful possession of the contraband upon the appellant from whom the same had been seized in illegal manner. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, the appellant cannot be held guilty under Section 21 of the Act. 12. In the view that I have taken that there is non-compliance with the provisions of Section 50 and Section 42(1) and (2) of the Act, it is difficult to sustain the conviction and sentence of the Appellant. In the result, the impugned judgment dated 23.12.1994 and the order of sentence dated 8.4.2002 are hereby set aside. The Appellant is hereby acquitted and set at liberty forthwith.