JUDGMENT Suridner Singh, J (oral) : The appellant has challenged his conviction passed in Sessions Trial No.24 of 2002 decided on 17.8.2005, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’ whereby he has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo imprisonment for six months. The period of detention already undergone by the appellant was set off as per Section 428 of the Code of Criminal Procedure. 2. While admitting the appeal for hearing, the sentence passed against the appellant, hereinafter to be referred as “the accused” was suspended in terms of order dated 19.10.2005. 3. Precisely, the facts giving rise to the present appeal as emerges from the evidence on record can be stated thus. On 9.3.2002, PW10 S.I. Dalip Singh of Police Station Sundernagar was on patrol duty at Lalit Chowk, Sunder Nagar. At about 9.30 p.m., he received secret information that the H.R.T.C. bus was coming from Manali Side, wherein the accused had been occupying Seat No.14 having Charas in his possession. He jotted down this information Ext.PF and sent it to the officer superior. The bus aforesaid reached Lalit Chowk around 9.45 p.m. It was stopped and parked aside. (ii) PW1 Hari Singh was the driver of the bus, whereas PW2 Om Parkash was its conductor. Both were included in the search operation of the accused. Police party alongwith independent witnesses aforesaid reached Seat No.14 and PW-10 informed the accused about his suspicion and sought his consent for personal search vide Ext.PA. The accused was ready and willing to be searched by the police party in the presence of the driver and conductor aforesaid. (iii) On the personal search of the accused, PW10 SI Dalip Singh found the money belt Ext.P4 tied around the waist of the accused, which contained the Charas in the shape of sticks and small coins. On its weightment, it turned out to be 600 grams. (iv) Two samples of 25 grams each were separated from the recovered stuff and sealed with seal impression ‘D’. Remaining bulk was also sealed with the same seal. On its weightment, it turned out to be 600 grams. (iv) Two samples of 25 grams each were separated from the recovered stuff and sealed with seal impression ‘D’. Remaining bulk was also sealed with the same seal. Sample of the seal impression aforesaid was also taken on separate piece of cloth and seal after its use was handed over to PW1 Hari Singh, driver of the bus. (v) The bus tickets Exts.PC-1 to PC-6 found in possession of the accused were also taken into possession vide recovery memo Ext.PD. (vi) Site plan Ext.PK of the place of alleged recovery was also prepared. NCB forms Ext.PL in triplicate were filled in on the spot. Accused was arrested and grounds of arrest were informed to him. (vii) The case property was entrusted to PW6 Additional MHC Rajinder Singh for its deposit in the Malkhana alongwith NCB forms. (viii) On 10.3.2002, special report of search and seizure was prepared and sent to the S.D.P.O. Sunder Nagar through PW3 C. Lalit Kumar. On the same day, at 9.20 a.m., PW6 aforesaid produced all the four parcels before PW11 Inspector Brijesh Sood, SHO, who resealed with seal impression ‘T’ and again handed over the parcels to him which were deposited by him in the Malkhana. (ix) On 20.3.2002, PW6 Additional MHC Rajinder Kumar proceeded on leave and handed over the charge to PW8 MHC Sanjay Kumar. On 25.3.2002, one sample parcel sealed with seal impressions ‘D’ and ‘T’ alongwith NCB forms and others documents was sent for chemical examination to the CTL, Kandaghat vide R.C. No.46/02 through PW5 Nihal Singh, who deposited the same in the Laboratory on 26.3.2002 and obtained receipt which was handed over back to the MHC. On the examination of the said sample, it was tested positive for Charas. As per report Ext.PP, the sample contained 34.65 % resin contents. 4. After recording the statements of the witnesses and completing the challan, it was presented before the Court for the trial of the accused. He was accordingly charge-sheeted and tried by the learned trial Court and at the end of trial, he was convicted and sentenced as aforesaid, for keeping in his possession the intermediary quantity of Charas. 5. I have heard the learned counsel for the parties and have re-examined the evidence on record. 6. He was accordingly charge-sheeted and tried by the learned trial Court and at the end of trial, he was convicted and sentenced as aforesaid, for keeping in his possession the intermediary quantity of Charas. 5. I have heard the learned counsel for the parties and have re-examined the evidence on record. 6. Pertinently, the independent witnesses PW1 Hari Singh, Driver and PW2 Om Paraksh Conductor of the bus, both have turned hostile and did not support the case of the prosecution, however admitted their signatures on the various documents, whereas, PW3 HHC Lalit Kumar stated that the recovered stuff was in the shape of sticks only. Further case property which was deposited in the Malkhana on 9.3.2012 was not immediately sent for analysis and it remained with PW6 Additional MHC Rajinder Kumar till 20.3.2002. He did not explain as to why it was not sent for chemical examination. Thereafter when he proceeded on leave, PW8 Sanjay Kumar took over the charge and he also sent it after about five days i.e. on 25.3.2002 through PW5 HHC Nihal Singh, which was received in the Laboratory on 26.3.2002. Copy of the R.C. was neither produced nor proved with respect to the movement of the sample parcel. Even the report of the analysis Ext.PP does not make any reference as to who had deposited the sample parcel in the Laboratory. Further there is also cutting against Sl.No.3 in the report of the analysis with respect to the weight and fluid has been applied against numbers of samples in Column No.6. There is impression of only one seal, the facsimile of which is also not decipherable. 7. As already stated above, the case of the prosecution is that after deposit of the case property in the Malkhana, it was again drawn on the next day for its resealing, but the facsimile of the seal used at the time of resealing is not on the NCB Form aforesaid nor there is any evidence that the resealed sample with Seal impression ‘T’ Ext.PO was sent alongwith sample parcel for its examination. The abstract of Malkhana register has not been produced and proved to substantiate the fact of drawl of case property from the Malkhana. There is only lithographic impression qua certificate that seal tallied with the sample parcel which appears to have been mechanically applied. The abstract of Malkhana register has not been produced and proved to substantiate the fact of drawl of case property from the Malkhana. There is only lithographic impression qua certificate that seal tallied with the sample parcel which appears to have been mechanically applied. These over-writings and applying of the fluid has not been explained, which makes the prosecution case all the more doubtful. 8. Further, the above contradictions apart, I also find that there was no compliance of Section 50 of the Act as it is falling short of requisite and essential elements, as neither in the statement of the Investigating Officer nor in the option memo, there is any reference that the accused was informed of his right to be searched before the Gazetted Officer or a Magistrate. 9. The Constitution Bench of the Supreme Court in VijaySinh Chandubha Jadeja v. State of Gujarat [ AIR 2011 SC 77 ], while surveying its previous judgments, observed that the object with which right under Section 50(1) of the Act is concerned, it is a way of a safeguard, which has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies. Thus it was held to be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted officer or a Magistrate. It is held to be mandatory and requires a strict compliance. The Apex Court also observed that failure to comply with the provision would render the recovery of the illicit article from the suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. If the right to choose in terms of Section 50 of the Act is given to the accused, it shall depend upon him, he may or may not choose to exercise such right provided under the said provision, but such an option in the above terms is sine quo non which lacks in the present case. 10. If the right to choose in terms of Section 50 of the Act is given to the accused, it shall depend upon him, he may or may not choose to exercise such right provided under the said provision, but such an option in the above terms is sine quo non which lacks in the present case. 10. For the reasons aforesaid, the conviction recorded by the learned trial Court stands vitiated, consequently the sentence also, as such the impugned judgment of conviction and sentence is hereby set-aside. Accordingly, the appeal is allowed. The appellant is acquitted for the offence charged. 11. The appellant is already on bail as per order dated 19.10.2005, passed in this appeal. He is discharged of his bail bonds entered upon by him consequent thereupon. The fine amount, if any, deposited, be refunded to him. 12. Appeal stands disposed of. Send down the records.