Judgment Mandhata Singh, J.-Prosecution case, in brief, is that informant received information about smuggling of Nepali Ganja by miscreants while he was on raid and enquiry into criminal activities of accused of Karjain P.S. 18/96 at Fakirna Chowk. Police party after receiving such information take position at some distance in north from Fakirna Chowk. They began to search/check small and big vehicles plying on road. During course of checking at about 4.00 P.M. a Maxi-407 came there, some persons were seen sitting on the roof, watching presence of police officials two or three of them jumped down and started to flee towards east. Finding some suspicion they were chased and Police succeeded to catch one of them, he was interrogated, he disclosed his name as Bhikhan Sah, another one who succeeded to flee was identified as Jawahar Singh. 2. Apprehended miscreant Bhikhan Sah made a confession before the members of raiding party that he alongwith this appellant was engaged in smuggling Nepali Ganja rather he was working as labourer of this accused appellant Jawahar Singh. 2kgs. of Nepali Ganja was recovered from possession of Bhikhan Sah. 3. The trial ended in conviction and sentence to this accused appellant for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as 'NDPS Act'). 4. In all six witnesses are examined in the case on behalf of prosecution. They are P.W.1 Tilak Ravidas, P.W. 2 Md. Ibrahim, P.W. 3 Md. Rojit, P.W. 4 Abdul Mutalliv, P.W. 5 Rup Narayan Mishra and P.W. 6 Md. Islam. 5. P.W. 6 has not supported the prosecution version by stating that nothing was known to him about the incident. He has been declared hostile but of no avail for any of the parties. P.Ws. 2 and 3 are seizure list witnesses. They are accepting about giving their thumb impression and signature over seizure list but on the point of their presence they are denying the same. Moreover this accused appellant was not apprehended from the place of occurrence nor any search was made of his person nor there was recovery from his possession. So, the witnesses on the point of seizure are of no relevance for their involvement in the case. Primary objection is raised that this appellant was identified by members of raiding party but was not in possession of Ganja as appeared in the statement of P.Ws. So, the witnesses on the point of seizure are of no relevance for their involvement in the case. Primary objection is raised that this appellant was identified by members of raiding party but was not in possession of Ganja as appeared in the statement of P.Ws. 1 and 2 who were the members of raiding party. 6. prosecution case is that apprehended accused Bhikhan Sah made confession before the members of raiding party about involvement of this accused appellant also in smuggling of Ganja rather co-accused Bhikhan Sah was in possession of Ganja also. It is specifically submitted that this much of the confession' as being made before police officials is not admissible in evidence rather is hit' by Sections 25 and 26 of the Evidence Act if would have been made by this accused appellant even. Section 25 of the Evidence Act is clear on the point that no confession made to a Police Officer shall be proved as against a person accused of any offence. Section 26 of the Evidence Act provides about its admissibility if made before a Magistrate, in any case confession of co-accused may not be accepted for possession of Ganja from anyone. 7. There are some special provisions for offences under NDPS Act for severe punishment and for bail. Section 50 of the NDPS Act provides if person arrested requires, to take such person without unnecessary delay to nearest Gazetted Of- ficers of any of the departments mentioned in Section 42 of NDPS Act or to the nearest Magistrate having its own significance that apprehended person has a right to be searched in presence of a Gazetted Officer of any of the department mentioned in Section 42 or a Magistrate. For that he should be asked, as such right was available to him and in case of his refusal to be produced before the Gazetted Officer mentioned in sub-section 42 or the nearest Magistrate, his person can be searched. This lacuna is found in the case for co-accused Bhikhan Sah. 8. For that he should be asked, as such right was available to him and in case of his refusal to be produced before the Gazetted Officer mentioned in sub-section 42 or the nearest Magistrate, his person can be searched. This lacuna is found in the case for co-accused Bhikhan Sah. 8. It is admitted case to the parties that in absence of compliance of Section 50 of NDPS Act no conviction can be awarded to the person searched tile instant case, that is applicable, then another lacuna is there also that only material in the case about his having in possession of any quantity of Ganja is confession of co-accused Bhikhan Sah which is not admissible in evidence and conviction based on such confession is not liable to sustain. This aspect has not been considered by the trial court in its judgment. 9. In the facts and circumstances of the case and the observations made above, the appeal is allowed and judgment and order of conviction and sentence dated 31.5.1999 passed in Special Case No. 3/97(s) is set aside exonerating the appellant from the liability of fine imposed by the trial court also. As the appellant is on bail, he shall stand discharged from the liability of his bail bond and set at liberty. 10. Let first page and last page of this judgment be handed over to learned Amicus Curiae appearing for the appellant for needful. Copy of judgment alongwith lower court records be sent back to the trial court forthwith.