MUKTESHWAR PRASAD, J. This criminal appeal by accused Liyakat Goojar from jail has been filed against the judgment and order dated 1-4-2004 passed by Additional Sessions Judge, Barabanki whereby he convicted the accused under Section 8 read with Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the act) and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of rupees one lac. In default in payment of fine, he was ordered to undergo rigorous imprisonment for a further period of two years. 2. In brief, the facts of the case, which led to the trial of the appellant, are as under. 3. On 12-10-1994, S. I. Qazi Ahmad Ibrahim, the then S. O. Police Station Jaidpur, District Barabanki accompanied by police personnel was returning to the police station on Government vehicle. At about 3. 40 a. m. , the police party arrived at Takiya Crossing and saw someone concealing near the well. On suspicion, the S. O. questioned him. Thereafter, he started running. He was overpowered by the police party and on interrogation disclosed his name as Liyakat Goojar. He was wanted by the police in case crime No. 298/93, under Sections 307/394 I. P. C. After disclosing the grounds of arrest, he was formally arrested by the police. 4. The moment S. I. started taking his personal search he disclosed "jama TALASI LI JANE LAGI TO MAFI MANGATE HUYA RONE LAGA Kl SARKAR HAMARE PAS MORPHINE HAI. MAI BARBAD HO JAYGOONGA TAB USASE KAHA GAYA Kl THIK HAI TUMAHARI TALASI KISI RAJ PATRIT ADHIKARI DWARA LI JAYEGI. ISPER BOLA KE SAHEB MAINETO BATA HI DIYA AB AAP HI TALASHI LEY LELIJIYE. SAB AAP KAY HATH MAY HAI. " 5. S. I. Ibrahim recovered 1. 200 kilograms of morphine (heroin) from the right pocket of his kurta. The arresting officer further recovered four puriyas of morphine, which was concealed in a polythine. The recovered contraband was sealed on the spot and a sample of seal was prepared. No public witness was available there and as such, no witness was associated with the alleged recovery. A seizure memo was prepared on the spot in the light of torch. 6. After investigation of the case, the accused was charge- sheeted and was tried. The recovered contraband was sealed on the spot and a sample of seal was prepared. No public witness was available there and as such, no witness was associated with the alleged recovery. A seizure memo was prepared on the spot in the light of torch. 6. After investigation of the case, the accused was charge- sheeted and was tried. He was charged under Section 8 read with Section 21 of the Act to which he pleaded not guilty on 24-5-95. 7. At the trial, the prosecution examined P. W. 1 S. I. Qazi Ahmad Ibrahim, the then S. O. Police Station Jaidpur, who arrested the accused, P. W. 2 Constable R. P. Awasthi and P. W. 4 Constable Hari Prasad Pal. Besides, the I. O. of the case (Tahsildar Singh) was also examined. The prosecution further examined Constable Ramesh Chandra Sharma, who prepared Chik report and Constable S. C. Tiwari also who took the sample to Forensic Science Laboratory at Lucknow. 8. The accused in his statement recorded under Section 313 Cr. P. C. totally denied his arrest as well as recovery, as alleged by the prosecution and pleaded his false implication on account of enmity with the villagers. According to him, he was arrested by the police from his house. No evidence was led in defence. 9. After having considered the entire evidence on record and arguments advanced on behalf of the parties, the learned Judge found the accused guilty and convicted and sentenced him, as indicated above. 10. I have heard Sri Bahar Ali, learned amicus curiae, who was appointed by this Court vide order dated 7-4-2005 and learned A. G. A. and also perused the entire record carefully. 11. Learned amicus curiae has assailed the judgment under appeal mainly on the grounds that there has been total non- compliance of the provisions of Section 50 of the Act and the provisions are mandatory as held by the Apex Court of the country in a number of decisions. He has further submitted that the alleged recovery was made by the police on 12-10-94. However, sample was sent to Forensic Science Laboratory, Lucknow on 6-12- 94 and thus sufficient delay took place. He has further urged that no public witness was associated with alleged recovery from the appellant. Consequently, the appellant is entitled to be acquitted. 12. He has further submitted that the alleged recovery was made by the police on 12-10-94. However, sample was sent to Forensic Science Laboratory, Lucknow on 6-12- 94 and thus sufficient delay took place. He has further urged that no public witness was associated with alleged recovery from the appellant. Consequently, the appellant is entitled to be acquitted. 12. On the other hand, learned A. G. A. has supported the impugned judgment and has contended that there was no prior information to the arresting officer and as such, there was no question of compliance of mandatory provisions of Section 50 of the Act. He has placed reliance on a decision of Supreme Court of India in State of Punjab v. Baldev Singh, 1999 Cri. LJ. 3672. On the other hand, learned amicus curiae has placed reliance on the following decisions: (1) Bharatbhai Bhagwanjibhai v. State of Gujarat, [2003 (1) JIC 241 (SC)]. (2) State of Orissa v. Sitansu Sekhar Kanungo, [2003 (1) JIC 329 (SC)]. (3) Union of India v. Jassuram alias Jasraj, 1998 L. Cr. R. 465. (4) Beckodan Abdul Rahiman v. State of Kerala, [2002 (2) JIC 157 (SC)]. (5) Gopal @ Mahesh Singh v. State of U. P. [ 2004 (2) JIC 1035 (All)]. 13. I have given my anxious consideration to the arguments advanced on behalf of the parties and have gone through all the decisions relied upon by them. Admittedly, the provisions of Section 50 of the Act are mandatory. When it is shown that there was no compliance of the provisions, conviction of the appellant is not sustainable under the law. So far as the facts of this case are concerned, it is true that the arresting officer accompanied by a few constables was returning to the police station at the odd hours of night on the Government Jeep. When he arrived at a crossing at about 3. 40 a. m. , he saw the accused who was trying to hide himself. On seeing the police party, the appellant is said to have started running. However, he was intercepted by the police and was arrested because he was wanted in case crime No. 298/93, under Section 307/394 I. P. C. 14. After his formal arrest by the police, S. I. Ibrahim started taking his personal search but before he could be searched, he pleaded for mercy and started weeping. However, he was intercepted by the police and was arrested because he was wanted in case crime No. 298/93, under Section 307/394 I. P. C. 14. After his formal arrest by the police, S. I. Ibrahim started taking his personal search but before he could be searched, he pleaded for mercy and started weeping. The accused made a confession that he was having morphine in his possession and his life would be ruined. After having come to know that the accused was carrying psychotropic substance (morphine) in his kurta, S. I. Ibrahim gave an option to the accused that he could be taken before a Gazetted Officer for his personal search but he allowed the police officer to take his search. 15. From the aforesaid facts, it is crystal clear that the arresting officer before he could take search of the person came to know very well that appellant was having illicit contraband in his possession and he was carrying morphine on his body. No doubt, the law requires that when any officer authorized under Section 42 of the Act is about to search any person under the provisions of Sections 41, 42 and 43, he shall if such person so requires take such person without delay to the nearest Gazetted Officer or to the nearest Magistrate. In the instant case, it is clear that the arresting officer had no prior information that the appellant was having heroin in his possession. It is true that he was wanted in some other case and was arrested by the police. I am, however, clearly of the opinion that before any search could be made, the arresting officer was informed by the appellant that he was having heroin in his possession and pleaded for mercy. Further the arresting officer gave him an option of being searched in the presence of Gazetted Officer. All these facts clearly go to show that there was prior information to the arresting officer and it was obligatory on his part to take the appellant for search before a Gazetted Officer or to the nearest Magistrate as required under Section 50 of the Act. I further find from perusal of the seizure memo that the arresting officer did not apprise the appellant of his right to have his search in the presence of Gazetted Officer/magistrate and thus, the provisions of Section 50 of the Act was not complied with. I further find from perusal of the seizure memo that the arresting officer did not apprise the appellant of his right to have his search in the presence of Gazetted Officer/magistrate and thus, the provisions of Section 50 of the Act was not complied with. My attention has been drawn to the decision of the Supreme Court of India in Bharatbhai Bhagwanjibhai v. State of Gujarat, [2003 (1) JIC 241 (SC)], and has been submitted that this case has been discussed in the judgment by the Court below also. The law is very clear on the point that when the empowered officer without any prior information makes a search or causes arrest of the person during normal course of investigation into the offence and on completion of that search a contraband under the Act is also recovered, the requirements of Section 50 of the Act are not attracted. In the instant case, the search had not been completed. It had just started. I have, therefore, no doubt in my mind that the provisions of Section 50 of the Act were attracted and non-compliance thereof is fatal. Consequently, on account of non-compliance of the mandatory provisions of Section 50 of the Act, the conviction of the appellant is not sustainable. This opinion of mine finds full support from the decision of the Supreme Court of India in Union of India v. Jassuram alias Jasraj, 1998 L. Cr. R. 465. I am further of the opinion that the delay in sending the sample for analysis is not fatal. 16. I further find that no public witness was associated with the alleged recovery from the appellant. 17. No other point was pressed in this appeal. 18. For the aforesaid reasons, I hold that this appeal has merits and it must succeed. 19. In the result, the appeal succeeds and is hereby allowed. The conviction and sentence recorded against the appellant are hereby set aside and he is acquitted. The appellant is said to be in jail. He shall be set at liberty forthwith, if he is not wanted in any other crime. The fine, if any, deposited by the appellant shall be refunded. Appeal allowed. .