JUDGMENT G.S. Solanki, J. 1. Appellant has filed this appeal against the judgment dated 7.10.1995 passed by the Additional Session Judge, Katni in Trial No. 28 of 1995, whereby the appellant has been convicted under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentenced to undergo rigorous imprisonment for two years with fine of Rs. 2,500/-. In default, the appellant shall suffer further rigorous imprisonment for a period of six months. 2. In short, the case of prosecution is that on 25.4.1995, B.D. Chaturvedi, (PW3) Assistant Sub Inspector, Police Station Katni received an information through an informer that a person, going with 'Ganja' at Bhatta Mohalla. On the basis of the aforesaid information, B.D. Chaturvedi, A.S.I. along with Sub Inspector, M.K. Singh (PW4) and Constable No. 17, 2092, 763 rushed to Bhatta Mohalla and intercepted Gudda @ Om Prakash S/o. Mohanlal, who was carrying a box of Tin. After informing him that he has right to be searched in presence of Gazetted Officer, when he denied to avail that right and allowed Shri Chaturvedi for search, a Panchnama Ex.P/2 was prepared in this behalf. Gudda @ Om Prakash was searched in presence of Panch witnesses Kiran Singh (PW1) and Chhotelal (PW2). 2 kg. and 500 gm Ganja, kept in tin box, was seized vide seizure memo Ex.P/3. He was arrested vide arrest memo Ex.P/5. 3. On returning to Police Station, entry was made in Rojnamcha 2276 Ex.P/6 and crime was registered under Section 20(b) of the NDPS Act vide Ex.P/7. The Superior Officer, S.D.O.(P.) was informed about registration of crime vide letter Ex.P/10. Seized contraband article was sent for chemical examination to Forensic Science Laboratory, Sagar through Superintendent of Police, Jabalpur vide draft letter Ex. P/12. 4. Assistant Chemical Examiner, Forensic Science Laboratory Sagar, found Ganja in articles sent to him. His report is Ex. P/1. After completion of investigation, the appellant was charge-sheeted, the trial court framed charge under Section 20(b) of NDPS Act. 5. The appellant/accused denied the charges and pleaded that he has been falsely implicated. 6. Learned trial court, after appreciation of evidence, held that the accused/appellant was guilty of the offence punishable under Section 20(b) of NDPS Act, convicted and sentenced him as mentioned herein above. 7. 5. The appellant/accused denied the charges and pleaded that he has been falsely implicated. 6. Learned trial court, after appreciation of evidence, held that the accused/appellant was guilty of the offence punishable under Section 20(b) of NDPS Act, convicted and sentenced him as mentioned herein above. 7. Learned Counsel for the appellant submitted that prosecution has failed to prove the compliance of Section 42(1), 42(2) and 50 of the NDPS Act, 1988 which is fatal to the prosecution. 8. On the other hand, Smt. Sheetal Dubey, learned Govt. Advocate, supported the impugned judgment and submitted that prosecution has proved its case beyond reasonable doubt. 9. I perused the impugned judgment and evidence recorded by the trial court. Case of the prosecution was fully based on the statement of B.D. Chaturvedi, (PW3), M.K. Singh (PW4). Pancha Witnesses Kiran Singh, (PW1) and Chhotelal (PW2). But both Panch witnesses had not supported the case of prosecution, they have been declared hostile. 10. On a careful perusal of the statement of main witnesses B.D. Chaturvedi, A.S.I. (PW3) of Police Station Katni, who clearly stated that on receiving information that someone going with Ganja, he immediately rushed to Bhatta Mohalla along with Sub Inspector, M.K. Singh (PW4) who also supported this version. B.D. Chaturvedi further stated that before proceeding from the Police Station, he entered Rawangi into Rojnamcha Sanah 2276 Ex.P/4. 11. On the strength of above mentioned evidence, it was argued on behalf of the appellant that there was a case of noncompliance of Section 42(1) and 42(2) because, information was not recorded in writing and was not sent to superior officer. In my considered opinion, this case was of a personal search at public place at Bhatta Mohalla, therefore, Section 42(1) and 42(2) has no application in this case as observed by the Apex Court in Abdul Azeez v. State of Kerela 2001 Cri.L.J. 2131. 12. Now, I have to examine the compliance of Section 50 of the NDPS Act. Requirements of Section 50 of NDPS Act are mandatory and non-compliance will vitiate the search and consequent seizure of articles. 13. According to this provision, when a person arrested and before a search is conducted, it is mandatory on the part of officer to inform the accused that he has a right to be searched in presence of Gazetted Officer or a Magistrate. 13. According to this provision, when a person arrested and before a search is conducted, it is mandatory on the part of officer to inform the accused that he has a right to be searched in presence of Gazetted Officer or a Magistrate. The accused will get the benefit if there is a failure to comply with this provision. 14. B.D. Chaturvedi (PW3), A.S.I. claims that he afforded an opportunity to accused/appellant that he may be searched before the Gazetted Officer, but appellant declined to avail this right and allow him to search. He prepared the Panchnama Ex. P/1 in this regard on which accused/appellant put his signature. Although Panch witnesses Kiran Singh (PW1) and Chhotelal (PW2) have not supported the version of I.O. except that they have signed, the Panchnama.M.K. Singh (PW4), who was with the search party categorically supported the version of B.D. Chaturvedi. There is nothing in cross-examination of both police officers which shows that they had any enmity with the accused/appellant. In this fact situation, I am of the opinion that prosecution proved this fact that accused was apprised to his legal right, to be searched before a Gazetted Officer or a Magistrate and in this way mandatory provision of Section 50 of NDPS Act was duly complied. 15. B.D. Chaturvedi (PW3) further stated that he searched the accused/appellant and seized a round shape of tin container in which contraband article approximately 2 kg. 500 gm. was kept which was seized and sealed before Panch witnesses and prepared the seizure memo Ex.P/3, which also bear signatures of both Panch witnesses Kiran Singh (PW1) and Chhotelal (PW2). This fact was supported by M.K. Singh (PW4), Sub Inspector, who was with the search party as well as this procedure, further finds support by Rojnamcha Ex.P/6(C), which was written just after the search party came back to Police Station. In this situation, seizure of the alleged contraband article found proved. 16. B.D. Chaturvedi (PW3) categorically stated that after registration of crime against accused/appellant vide Ex.P/7, he informed his superior officer by memo vide Ex.P/10. 17. Memo Ex.P/10 contains all information regarding appraisal of right to be searched in presence of Gazetted Officer to accused and search and seizure. In this way there is a substantial compliance of Section 57 of NDPS Act has been proved. 18. 17. Memo Ex.P/10 contains all information regarding appraisal of right to be searched in presence of Gazetted Officer to accused and search and seizure. In this way there is a substantial compliance of Section 57 of NDPS Act has been proved. 18. Learned Counsel for appellant submitted that prosecution failed to prove, that seized article was kept in sealed packet before forwarding to the Chemical Examiner and was not tampered with as long as it remained in police station. 19. In my opinion, this argument of learned Counsel has some force, because, none of prosecution witnesses stated that after search, seized article was kept in safe custody. 20. Article was seized on 26/4/95 vide Ex.P/3. It was sent to the Chemical Examiner by memo dated 2.6.95 vide Ex.P/12, it means more than a month, this article was remained at police station, Katni; how and who kept it not explained by Investigating Officer Shri B.D. Chaturvedi (PW3). 21. One more important fact noticed by this Court that as per report of Chemical Examiner Ex.P/1, he received a sealed packet in which he found 22 packets of contraband article, it is just against the prosecution case. 22. According to B.D. Charturvedi (PW3) he seized a tin box in which two polythene packets were found, seizure memo Ex.P/3 also corroborated this fact. Memo of Superintendent, Ex.P/10 reveals that a seized tin box bearing Ganja about 2.500 gm. was sent to Forensic Science Laboratory. In this way, the prosecution failed to prove this fact that articles sent to Chemical Examiner, was same, which was seized from the accused/appellant. 23. Keeping in view the discrepancy in number of packets, as well as container, seized from accused and examined by Chemical Examiner and in view of the fact that sample was remained in custody of Investigating Officer, more than a month. 24. In view of the aforesaid evidence on record, in my considered opinion that prosecution has utterly failed to prove beyond reasonable doubt that contraband Article 2.500 gm. had been seized from the possession of accused/appellant, for which he can be held guilty for the offence punishable under Section 20(b) of NDPS Act. Therefore, the finding of conviction and sentence recorded by the trial Court is erroneous and liable to be set aside. 25. Resultantly, the appeal succeeds and is hereby allowed. had been seized from the possession of accused/appellant, for which he can be held guilty for the offence punishable under Section 20(b) of NDPS Act. Therefore, the finding of conviction and sentence recorded by the trial Court is erroneous and liable to be set aside. 25. Resultantly, the appeal succeeds and is hereby allowed. The impugned Judgment of conviction and sentence, is set aside and the accused/appellant is acquitted from the charges under Section of NDPS Act. The fine amount, if deposited, by the appellant, be refunded to him. The appellant is on bail, his bail bond stands discharged forthwith.