JUDGMENT Justice Surinder Singh, J. (oral) Accused was charge sheeted, tried and acquitted for the offence punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, for allegedly keeping in his possession 10.78 grams of smacks, hence the present appeal by the State. 2. Heard and gone through the record. 3.In the year 2004, PW14 Inspector Brijesh Sood, was posted as SHO in Police Station Sundernagar. As per prosecution story, on 17.2.2004, he was heading a police patrol party and was in the area of old bus stand Sundernagar. Around 11 45 a.m. PW14 aforesaid received a secret information that accused was dealing in narcotics and if apprehended, a good deal of contraband can be recovered from him. This information was jotted down by him in writing to satisfy the provision of sub-section (2) of Section 42 of the Act and sent through Constable Rakesh Kumar to Dy. S.P. Head Quarters, Mandi for information. Its copy is Ext. PW12/B. Thereafter he associated Vinod Kumar (PW1) and Man Singh (PW2) in the raiding party and proceeded towards the place of the accused but accused was found standing near the filling station at new bus stand. On seeing the police party, he got nervous. His identity was asked to which he disclosed. Thereafter the said police officer is stated to have given option to the accrued in writing Ext. PW12/A to be searched either before the Magistrate or Gazetted Officer. In turn, accused opted to be searched by the police present there. It was thereafter PW14 aforesaid during the personal search of the accused recovered the above contraband (Smack) in the presence of the witnesses. The said police officer separated two samples of two grams of each from the recovered stuff and separately sealed it with seal impression ‘K’. The remaining bulk was also sealed with the same seal. Case property was taken into possession vide seizure memo Ext. PW2/C in the presence of witnesses. Police also prepared the site plan of the place of alleged incident Ext. PW14/B. 4.Ruka was sent for the registration of the case on the basis of which formal FIR was recorded. 5.Accused was arrested and grounds of arrest were informed to him. 6. The Special report regarding search and seizure was sent to the official superior within the statutory time. PW14/B. 4.Ruka was sent for the registration of the case on the basis of which formal FIR was recorded. 5.Accused was arrested and grounds of arrest were informed to him. 6. The Special report regarding search and seizure was sent to the official superior within the statutory time. Case property was deposited in the Malkhana with MHC PW6 Swarn Singh. One of the sample parcels was sent to Central Forensic Science Laboratory, Chandigarh which tested positive for diacetylmorphine (heroin). The report is Ext. PW13/B. 7.After completing investigation, challan was presented in the Court for trial of the accused. He was accordingly charge-sheeted for the aforesaid offence to which he pleaded not guilty and claimed trial. 8.To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. His defence was denial simplicitor. However, he did not lead any evidence in defence. 9.At the end of the trial, the accused was acquitted on the ground that the alleged independent witnesses turned hostile to the prosecution, link evidence was not complete and NCB forms were not sent with the sample parcel for its analysis. 10.We have considered the rival contentions on behalf of the learned counsel for the parties and reappraised the evidence on record. 11.On reappraisal, we find that the independent witnesses turned hostile and there remains the statement of Investigating Officer PW14 Brijesh Sood only against the accused. On its scrutiny, we find that there is non­compliance of Section 50 of the Act as he is stated to have given option to the accused to be searched before the Gazetted officer or the Magistrate but there is reference either in his statement or in the memo Ext. PW12/A that at any point of time before the personal search of the accused, he was apprised of “his right” to be searched before the Magistrate or the Gazetted Officer. 12. PW12/A that at any point of time before the personal search of the accused, he was apprised of “his right” to be searched before the Magistrate or the Gazetted Officer. 12. In the latest judgment of the Supreme Court in Suresh and others versus State of Madhya Pradesh (2013) 1 SCC 550 while relying upon the Constitution Bench in Vijaysinh Chandubha Jadeja versus State of Gujarat (2011) 1 SCC 609 the apex Court held that Section 50 (1) of the NDPS Act makes it imperative for the empowered officer to “inform” the person concerned about the existence of his “right” under Section 50 (1) of the ANDPS Act, that if he so requires, he shall be searched before a Gazetted officer or a Magistrate. Failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. It is also reiterated that the said provision is mandatory and requires strict compliance. In Jadeja’s case (supra) it was also held that in case of non­compliance of the mandatory provisions of Section aforesaid, it would vitiate the trial. 13.Further in Ashok Kumar Sharma versus State of Rajasthan (2013) 2 SCC 67 the apex Court happened to examine a similar option as in the present case that the empowered officer had only informed the accused that he could be searched before any Magistrate or a Gazetted officer if he so wished. The fact that the accused person has a “right” under Section 50 of the Act to be searched before a Gazetted officer or a Magistrate was not made known to him. In these circumstances, it was held that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the accused. 14.Applying the above settled law, in the instant case, there has been non-compliance of mandatory provisions of Section 50 of the Act, therefore, against the aforesaid factual background, acquittal of the accused cannot be interfered with. As such the appeal filed by the State sans merit, hence dismissed. 15.The bail bonds entered upon by the accused during the proceedings of the case are hereby discharged. 16.Send down the records.