JUDGMENT Hon’ble M.K. Mittal, J.—This appeal has been preferred against the judgment and order dated 18th January, 1993 passed by Sri S.C. Bose the then VI Additional Session Judge Gorakhpur in Sessions Trial No. 20/92 whereby the learned Judge found the accused guilty under Section 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act) and sentenced him to undergo rigorous imprisonment for 10 years and fine has also been imposed on him. In default of fine the accused was directed to undergo simple imprisonment for 5 years. 2. The prosecution case in nutshell is that on 19.9.1989 at about 5 pm, B.L. Singh the complainant, who was posted as Excise Inspector, Sector 2, Gorakhpur apprehended the accused. On his search 125 gm of charas was recovered from the right pant pocket of the accused. It was taken out by the accused himself from his right pocket. A preliminary test was made by the Excise Inspector and finding that it was charas, it was sealed. The recovery memo was also prepared at the spot and was signed by the witnesses as well as the accused. Copy of the fard recovery was also given to the accused. The complaint dated 20th March, 1990 was filed in the Court of the Chief Judicial Magistrate Gorakhpur on 25th March, 1990. The case was committed to the Court of Sessions by order dated 18.1.1992. The learned Additional Sessions Judge framed the charge against the accused under Section 8/20 of the Act on 17th June, 1992. 3. In support of its case the prosecution led evidence and examined B.L. Singh PW-1, Ram Nath PW-2. The prosecution also produced the report of the Chemical Examiner dated 9th February, 1990 (Ex- K3). According to this report recovered item was charas. The accused was examined under Section 313, Cr.P.C. and he denied the allegations levelled against him. He also contended that his father used to sell bhang but he was living separately from his father for the last 15 years. When he was going to meet his mother in Miyan Bazar, he was apprehended by the officials of the Excise Department and was asked to bring his father but when his father did not turn up, he was challaned, although no charas was recovered from him. The accused did not give any evidence in defence. 4. When he was going to meet his mother in Miyan Bazar, he was apprehended by the officials of the Excise Department and was asked to bring his father but when his father did not turn up, he was challaned, although no charas was recovered from him. The accused did not give any evidence in defence. 4. Learned Sessions Judge accepted the prosecution evidence and came to the conclusion that 125 gm charas was recovered from the accused for keeping which he had no licence. Consequently, he convicted him as aforesaid. Feeling aggrieved, this appeal has been preferred. 5. I have heard learned Counsel for he appellant, learned A.G.A. and perused the record. 6. Learned Counsel for the appellant has contended that the appellant has been convicted without there being any legal evidence against him and that the compliance of the mandatory provisions of Section 50 has not been made in this case. Learned A.G.A. has supported the impugned judgment. Section 50 of the Act provides that if any officer authorized to make search of any person under the provisions of Sections 41, 42 or 43, 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. Therefore, if the person is arrested, before his search is made, the compliance of this provision has to be made. Now it is settled legal position that the provisions of this Section are mandatory and that it is the right of the person so arrested, to be given an opportunity, if he wants to be searched by any Gazetted Officer of the department or the nearest Magistrate. If the provisions of this section are not complied with, the conviction cannot be sustained. 7. In the instant case the prosecution case is that the charas was found in the pant pocket of the accused. Therefore, it was on his person and the compliance of this section was mandatory. The recovery memo as prepared at the time of the arrest of the accused does not show if any, compliance under this section was made. There is no reference of this opportunity having been given to the accused. Therefore, it was on his person and the compliance of this section was mandatory. The recovery memo as prepared at the time of the arrest of the accused does not show if any, compliance under this section was made. There is no reference of this opportunity having been given to the accused. Witness B.L. Singh PW-1 has stated in his examination-in-chief that before search, he had asked the accused if he wanted to get himself searched before any Gazetted Officer but he had said that he had faith in him and he could search him. In cross-examination this witness has stated that this fact has not been mentioned in the fard as it was not necessary. The accused was searched in front of his house and charas was found in his pant pocket. This statement of the witness shows that he, while making the arrest, did not comply with the provisions of Section 50 of the Act and his statement as given in the Court that he had asked him about search to be made before a Gazetted Officer before actual search, is afterthought and cannot be given any importance. The prosecution also examined Ram Naresh PW-2. He has stated that he accompanied the inspector and the accused was arrested by the Inspector and his search was made and the accused himself gave the charas. This witness has also not stated in examination-in-chief that the inspector asked him for his search to be made before the Gazetted Officer or the Magistrate. In the circumstances, the statement of PW-1 B.L. Singh is not corroborated by this independent witness also. 8. The impugned judgment shows that an objection regarding the non-compliance of Section 50 of the Act was raised before the learned Trial Court, but the same did not find favour with him in view of the statement of PW-1 that he had asked him if he wanted to be searched before a Gazetted Officer. The learned Trial Court has erred in relying on this statement without considering its veracity and correctness. The fact remains that this statement was introduced by the witness for the first time in his examination-in-chief and he did not mention any such fact in the fard recovery and his statement was not corroborated even by the independent witness examined by prosecution. Therefore, the learned Trial Court has erred in convicting the accused and sentencing him as aforesaid. The fact remains that this statement was introduced by the witness for the first time in his examination-in-chief and he did not mention any such fact in the fard recovery and his statement was not corroborated even by the independent witness examined by prosecution. Therefore, the learned Trial Court has erred in convicting the accused and sentencing him as aforesaid. 9. In view of the facts and circumstances of the case, I come to the conclusion that the prosecution has failed to establish its case. For non-compliance of Section 50 of the Act, the conviction cannot be sustained and the same is to be set aside. Therefore, the appeal is to be allowed. 10. The appeal is allowed. The conviction and sentence of the accused under Section 8/20 N.D.P.S. Act is hereby set aside. The accused shall be released forthwith unless wanted in some other case crime or matter. Appeal Allowed. ———