JUDGMENT :- The appellant herein stands convicted for offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the N.D.P.S. Act) and is sentenced to undergo R.I. for 10 years and to pay tine of Rs. 50000/- i.d. to suffer R.I for 6 months in Sessions Case No.107 of 2006 by Ad-hoc District Judge and Additional Sessions Judge, Solapur vide Judgment and Order dated 11/4/2007. Hence, this appeal. 2. Such of the facts which are necessary for the decision of the appeal are as under: On 12th• March, 2005 P.S.I. Manoj kumar Yadav who was working as the Chief of the Detection Branch attached to Jail Road Police Station received a secret information at about 2 p.m. that one person namely Rashid Shaikh is to arrive at about 3.30 p.m. in Rahul Gandhi Zopadpatti area near cattle pond along with brown sugar. The informer had given description of his clothes. PSI Yadav transmitted the said information to police inspector of jail road police station. Pursuant to the directions by the P.I., station diary entry to that effect was taken by the P.S.O Gaikwad. P.I. Ingale Patil then gave the said information in writing to the Assistant Commissioner of Police. Investigation was set in motion. 3. P.I. Ingale Patil had called for panchas and left for the spot in Peter Mobile van. They waited at the cattle pond. At about 3.30 p.m. a person from Muslim Pachcha Peth had arrived. He was wearing black full shirt and jean pant. He halted at Bombay Chand Shah bakery and was looking around in suspicious manner. The said person was apprehended by the police personnels who were accompanied by the panchas, photographer and the person carrying weights and measures. The P.I. informed the said person that they have received a secret information and therefore, they want to take personal search. He was asked whether he wants to take personal search in presence of Magistrate. The said person refused the same. Personal search of the said person was taken. He was found in possession of one plastic bag kept in right side pant pocket and the said bag containing biscuit colour powder. The police realized that it was brown sugar. The person carrying weights was directed to weigh the brown sugar. It was 50 grams and 660 ml. gms. worth Rs. 20,000/-. He was found in possession of one plastic bag kept in right side pant pocket and the said bag containing biscuit colour powder. The police realized that it was brown sugar. The person carrying weights was directed to weigh the brown sugar. It was 50 grams and 660 ml. gms. worth Rs. 20,000/-. The samples were drawn in presence of panchas. Remaining contraband was sealed. Photographs were taken. The accused was arrested. The family members of the accused were informed of his arrest. Upon reaching the police station, P. I. Manoj kumar Yadav lodged the report against the accused on the basis of which crime no. 3039/2006 was registered against the accused under section 21 (c) section 29 of N.D.P.S. Act. Further investigation was handed over to P.I. Gadade. The samples were sent to forensic laboratory. The C. A. report is at Exhibit 53. After completion of investigation, charge-sheet was filed on 14/06/2006. The case was committed to the Court of Special Judge. The prosecution examined 9 witnesses to bring home the guilt of the accused. 4. P.W.I Yogiraj Gaikwad has deposed before the Court that on 12/03/2006, he was informed by P.S.I. Yadav that a secret information was received about a person carrying brown sugar and arriving at cattle pond. P.W.I then called for panchas, photographer and A.C.P. Pawar and a person with weights and measures. They reached the said spot. At about 3.30 p.m., the person had stopped near Bombay Chandshah Bakery and was looking around suspiciously. He was accosted by the police personnel. He was given an option as to whether he wants to give a personal search in presence of Magistrate, he replied negatively. P. S. I. Yadav had taken the search of the accused who was found in a possession of plastic bag kept in front right side pocket of his pant containing biscuit colour powder. The said powder was smelling pungent and emanated itching sensation to the eyes and therefore the police realized that it was brown sugar. It weighed 50 grams and 660 mli. gms. The accused along with contraband was taken to the police station. 5. P.W.2 Dilip Bhalshankar had carried the samples to C.A. Office and deposited the same with the C. A. Office. It weighed 50 grams and 660 mli. gms. The accused along with contraband was taken to the police station. 5. P.W.2 Dilip Bhalshankar had carried the samples to C.A. Office and deposited the same with the C. A. Office. He has deposed before the Court that on 13/03/ 2006 he had received the samples from Muddemal Clerk at about 11.00 a.m. He had not weighed the sample. He had not seen the packet. He had not handed over the packet to anyone during his stay at Chaturshurngi Police Station. 6. P.W.3 Shivaji Patil, Police Head Constable attached to Jail Road Police Station. He was Muddemal Clerk. He has stated that a secret information was to the effect that Rashid Shaikh was coming with brown sugar. In the cross-examination he has stated that although P. I. Ingale asked the accused whether he is ready to give personal search before the Magistrate, he answered in the negative. The accused had given a personal search to the police. He has admitted in the cross-examination that two envelopes containing the samples did not bear the label of panch witness and I.O. The small envelopes are article nos. 2 & 3. 7. P. W. 4 Jagan Shriram who had gone along with the weights has not supported the prosecution. P. W. 5 Balaji who acted as a panch has not supported the prosecution. P. W. 6 Raju Tippanna another panch for seizure was also declared hostile. 8. P.W.7 Madhukar Bhagwanrao Ingale Patil has also deposed in respect of the investigation carried out by him. He has further deposed that as the accused had refused to take search in presence of gazetted officer, they had not called any gazetted officer at the time of search. He further deposed that he had disclosed to the accused that he himself was a gazetted officer. He has recorded the denial of the accused in the panchnama. 9. P.W.9 the investigating officer who lodged the F.I.R. on behalf of the State and had taken the accused along with contraband to the police station. 10. I t is pertinent to note that there has been non compliance of section 50 of N.D.P.S. Act. In the present case, the accused was not apprised of his right to have himself searched before the Magistrate or the gazetted officer. 10. I t is pertinent to note that there has been non compliance of section 50 of N.D.P.S. Act. In the present case, the accused was not apprised of his right to have himself searched before the Magistrate or the gazetted officer. The witness have only stated before the Court that a cursory suggestion was given to the accused as to whether he wants to be searched before the Magistrate or gazetted officer. It is contemplated under the Act that the accused is to be apprised of his rights to be searched before the gazetted officer or the Magistrate. Failure to comply with this provisions would render his recovery of elicited article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of elicited article from the person of the accused during said search. After apprising him of his right under section 50 of the N.D.P.S. Act, the suspect mayor may not choose to exercise the right provided to him under the said provision. It would be imperative on the part of the raiding officer to appraise the person intended to search, of his right to be searched, before gazetted officer or Magistrate. Section 50 is mandatory and requires strict compliance. Any deviation from the mandatory provisions would entitle the accused to an acquittal. 11. The chemical analysis report is at Exhibit 53. It shows that the result of analysis was heroin (diacetyl morphine along with other opium alkaloids which falls under section 2 (XVI) of the N.D.P.S. Act 1985.) The prosecution has not examined the Chemical Analyzer. 12. Learned counsel for the appellant submits that the charge-sheet was framed against the accused/appellant for being in illegal possession of brown sugar (Brown Sugar gum) weighing 50 grams 660 ml value at Rs. 20,000/- for having committed an offence punishable under section 21 of the N.D.P.S. Act. The counsel for the appellant submits that the charge which was framed against the accused has caused serious prejudice to the accused as he was not given a notice of being in possession of heroin although the C.A. Report had formed a part of the charge-sheet. That the brown sugar falls under the definition of section 2 (XVI) (d) of the N.D.P.S. Act. It is opium derivative and therefore it was necessary to frame charge against the accused for being in possession of heroin. That the brown sugar falls under the definition of section 2 (XVI) (d) of the N.D.P.S. Act. It is opium derivative and therefore it was necessary to frame charge against the accused for being in possession of heroin. According to the counsel for the appellant there is nothing like brown sugar mentioned in the schedule to of the N.D.P.S. Act. The counsel for the appellant has drawn the attention of this Court to question no. 22 put to the accused under section 313 of Code of Criminal Procedure. He has only been given notice that he was found in possession of biscuit colour powder weighing 50 grams. It is submitted that no question was framed/put to the accused that the powder which was found in his possession was found to be heroin as per the chemical analysis report which is at Exhibit 53. In fact Exhibit 53 was not put to the accused at all although it is clinching/incriminating circumstance against the accused. In question no. 12, it was informed to him that the samples were sent to C.A. Office and the carrier had deposited the same in C. A. Office. 13. Section 3 13 (b) of Code of Criminal Procedure, 1973 reads thus: "In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court : (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case." 14. Reliance is placed on the Judgment of the Apex Court in the case of Shaikh Makhsood and the State of Maharashtra reported in 2009, 6 Supreme Court cases, 583 : (2009 ALL SCR 1596]. The Apex Court has held thus: "The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is indeed sought. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give." The very fact that the material circumstance was not put to the accused and that he was denied the opportunity to defend the case made out against him would entitle him to acquittal. The conviction of the appellant for offence punishable under section 21 of the N.D.P.S. Act is quashed and set aside. 15. The appellant is in jail since 12/03/2006. The appellant has undergone 7 years & 4 months in the jail. For the aforementioned reasons, following order: ORDER i) Appeal is allowed. ii) The conviction of the appellant under section 21 (c) of the N.D.P.S. Act is quashed and set aside. iii) The appellant be released forthwith if not required in any other offence. iv) Office to communicate this order to the appellant through jail authority in which the appellant is lodged. v) Writ be expedited. Appeal allowed.