JUDGMENT 1. - The appellant seeks to quash the judgment dated August 20, 2002 of the learned Special Judge NDPS Cases Chittorgarh rendered in Sessions Case No. 51/2001, whereby the appellant was convicted and sentenced under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') to undergo rigorous imprisonment for ten years and fine of Rs. one lack, in default to further undergo imprisonment for one year. 2. In brief the facts of the case are that the SHO Police Station Chanderia on receiving secret information on July 9, 2001 regarding transit of opium by the appellant on the High-way towards Medikheda reached at the spot with the police party and Motbirs. Around 6.30 PM a person was seen coming towards Ajolia ka Kheda. The person was identified as the appellant by Shyam Lal Constable. On being searched opium weighing 3 kg. and 500 gms. was found tying to the abdomen of the appellant. Necessary memos of against the judgment dated 20.8.2002 of Shri Radhey Mohan Srivastava, Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 51/2001. recovery, arrest etc. were drawn and after usual investigation charge sheet was filed. Charge under Section 8/18 NDPS Act was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as eleven witnesses. The appellant in his explanation under Section 313 Cr.P.C. claimed innocence, but did not choose to lead any evidence. The learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. It is contended by learned counsel for the appellant that the officer who conducted search failed to comply with the mandatory provisions of Section 50 of the NDPS Act. The evidence produced by prosecution in this regard is highly contradictory. Gopal Singh Constable (PW.2) in his deposition stated that the option which was given to the appellant was as to whether he wanted to be searched by the police party or superior officer and thereafter search was taken. On the other hand Sumer Singh (PW.3) deposed that before the search of the appellant by seizure officer Himmat Singh, the appellant was given option to be searched before the Magistrate, Gazetted Officer or Seizure Officer. Himmat Singh (PW.10) also corroborated the statement of Sumer Singh, whereas Gopal (PW.8) and Shakeel Mohd. On the other hand Sumer Singh (PW.3) deposed that before the search of the appellant by seizure officer Himmat Singh, the appellant was given option to be searched before the Magistrate, Gazetted Officer or Seizure Officer. Himmat Singh (PW.10) also corroborated the statement of Sumer Singh, whereas Gopal (PW.8) and Shakeel Mohd. (PW.1) did not say as to whether the option was given to the appellant or not. 4. Per contra, learned Public Prosecutor supported the impugned judgment and urged that provisions of Section 50 of the NDPS Act have been complied with in letter and spirit. 5. I have pondered over the rival submissions and scanned the material on record. 6. Before adverting to the arguments of the learned counsel, I deem it appropriate to have a close look at Section 50 of the NDPS Act, which reads as under: "S.50. Condition under which search of person 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. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior." 7. Section 50 has been Introduced with the obvious Intent to avoid any harm to innocent persons and to avoid raising of allegation of planting of fabrication by prosecuting authorities. It mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of Section 41 and 42 shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. 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. Requirement of Section 50 may be summarised thus: (i) It Is mandatory for the officer conducting search and seizure to inform the suspect his right to be searched in presence of the Magistrate or Gazetted Officer. (ii) It is mandatory for the officer conducting search and seizure to follow the mandate of sub-section (3) and to inform the suspect that Gazetted Officer or the Magistrate, if sees no reasonable ground for search, shall discharge the person. (Emphasis supplied) 8. Sub-section (5) and (6) have been added by Amendment Act 9 of 2001 which came into force with effect from October 2, 2001. Sub-section (5) provides that in an emergent situation the search and seizure may be effected by the authorised officer without taking suspect to the nearest Gazetted Officer or Magistrate when there is possibility that suspect is likely to part with the possession of Narcotic drug or psychotropic substance or controlled substance or any article or document. However adequate statutory safeguards have been provided under Section (6). 9. Coming to the facts of instant case, I find that vide written notice (Ex.P-2) under Section 50(1) of the NDPS Act, the appellant was informed that he could be searched in the presence of either Magistrate or Gazetted Officer and if the appellant agreed he could be searched by Himmat Singh SHO. The written notice bears signatures of Narain and Zakir Hussain, the appellant in his own hand writing wrote on the notice that he agree to be searched by Himmat Singh SHO. The written notice bears signatures of Narain and Zakir Hussain, the appellant in his own hand writing wrote on the notice that he agree to be searched by Himmat Singh SHO. Narain (PW.1) in his deposition however stated that no notice under Section 50 was given to the appellant. Since narain did not support the prosecution story, he was declared hostile. Zakir Hussain (PW.4) deposed that he was called at Police Station Chanderia and asked to put his signatures on some papers. He did not know as to in what connection police asked for his signatures. Zakir Hussain was also declared hostile. Himmat Singh SHO deposed that he gave option to the appellant either to be searched in presence of the Magistrate or Gazetted Officer and the appellant was also informed that if he agreed he could be searched by Himmat Singh SHO himself. Obviously the appellant was not informed that the Magistrate or gazetted Officer, if sees no reasonable ground for search, shall discharge the appellant. 10. Prior to incorporation of sub-section (5) in Section 50, the authorised officer himself could not search the suspect but with effect from October 2, 2001 the authorised officer in an emergent situation may effect the search and seizure subject to the checks provided in sub- section (6). These 41, amended provisions are not applicable to the search and seizure effected on July 9, 2001 by Himmat Singh SHO in the instant case. By effecting search and seizure by himself Himmat Singh SHO flouted the mandate of Section 50. Looking to his convenience the SHO made attempt to stretch the mandatory provisions and illegally gave additional option to effect search and seizure himself. 11. Their Lordships of the Supreme Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 indicated that section 50 of the NDPS Act confers a valuable right on the person to be searched in the presence of Gazetted Officer or Magistrate if he so requires, since such a search would impart much more authentic and creditworthiness to the proceedings while equally providing an important safeguard to the accused and that, therefore, the safeguard conferred under Section 50 is to be taken as an important requirement and as a legislative imperative and non- compliance would vitiate the trial. 12. 12. In the case on hand Himmat Singh SHO did not fully inform the appellant of his right to be searched before the Magistrate or Gazetted Officer who, in the absence of reasonable ground for search had power to discharge the appellant. Since appellant was not fully made aware of his right and SHO himself played the role of Gazetted Officer and Magistrate by effecting the search and seizure, the appellant could not have been convicted. The accused has the right to choose his forum and if he is not completely informed of his right he is not expected to exercise his option. 13. For these reasons, I allow the appeal and set aside the impugned judgment dated August 20. 2002. I acquit the appellant of the charge under section 8/18 of the NDPS Act. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Allowed - Conviction Set Aside. *******