JUDGMENT Akhilesh Chandra, J. 1. The solitary appellant stands convicted for the offence under Sections 21(C) and 22 of the N.D.P.S. Act and sentenced to undergo ten years rigorous imprisonment and fine of Rs. 1,00,000/- each and in default of payment of fine to further suffer one year simple imprisonment. The appellant also stands convicted under Section 27 of the N.D.P.S. Act and sentenced to undergo one year rigorous imprisonment and pay fine of Rs. 10,000/-, in default of payment of fine, to suffer three months more simple imprisonment by the court of 1st Additional Sessions Judge, Rohtas at Sasaram. All the sentences were ordered to run concurrently. 2. The prosecution case as it appears from Exhibit- 3, the self written statement of Officer-in-Charge of Sasaram Town Police Station, namely, Binod Prasad (PW 9) is that on being authorised by Additional Superintendent of Police, he conducted raid in the house of the appellant (Deepak Singh) since there was information of storage of Heroine by him. On such raid 250 gm. of Heroine was recovered from the possession of the appellant during search made in presence of the two independent witnesses PW 2 and PW 3 (turned hostile) and mother of the appellant, PW 1 (also turned hostile). The recovered article was weighted and sample was also prepared at the house of the appellant itself and subsequently the investigation was entrusted upon PW 10 (Investigating Officer), who submitted charge-sheet. 3. The prosecution examined altogether ten witnesses and side by side also exhibited Ext.1- signature of Birendra Singh on seizure list, Ext.1/1- signature of Basgit Singh on seizure list, Ext.2- seizure list dated 10.10.2005, Ext.3- written report by PW 9, Inspector Binod Prasad, informant, Ext.1/2- signature of Inspector Binod Prasad, informant (PW 9) on the F.I.R. (formal) and Ext.4- F.S.L. report. 4. It is contended on behalf of the appellant that mandatory provisions under Section 50 of the N.D.P.S. Act has not been complied with which itself is sufficient to nullify the conviction and sentence. That apart, from nowhere it is evident that by what means the alleged article was weighted and sample etc. was prepared. 4. It is contended on behalf of the appellant that mandatory provisions under Section 50 of the N.D.P.S. Act has not been complied with which itself is sufficient to nullify the conviction and sentence. That apart, from nowhere it is evident that by what means the alleged article was weighted and sample etc. was prepared. The learned Additional Public Prosecutor on the point of non-compliance of mandatory provision of Section 50 of the Act has nothing, but to concede, specially, in view of the decisions of Apex Court in the case of “Vijaysinh Chandubha Jadeja v. State of Gujarat” reported in “AIR 2011 Supreme Court 77” and in the case of “Narcotics Central Bureau v. Sukh Dev Raj Sodhi” reported in “AIR 2011 Supreme Court 1939”. However, on the other points he tried to support the finding of the court below. 5. The first three witnesses of the prosecution, including the mother of the appellant PW 1 and two seizure list witnesses have not supported the prosecution version. Prosecution witness nos. 4 to 8 are the members of the raiding party, being posted at the Sasaram (Town) Police Station, said to have participated in the raid conducted under the leadership of PW 9, the Officer-in-Charge. None of these witnesses have said a single word about bringing the material either with them or the same being made available by any means during course of raid, which itself creates a doubt about the recovery and weight etc. of the alleged recovered article. 6. The informant (PW 9) in its written report (Exhibit- 3) as well as in his entire statement is conspicuously silent about taking any Gazetted Officer with him while proceeding to conduct the raid on having deferred information about availability of narcotic substance. Even, if he himself was a Gazetted Officer, it was his duty to disclose the same to the appellant before conducting raid, but none of the requirements are fulfilled under Section 50 of the N.D.P.S. Act, which reads as such :- 50. Even, if he himself was a Gazetted Officer, it was his duty to disclose the same to the appellant before conducting raid, but none of the requirements are fulfilled under Section 50 of the N.D.P.S. Act, which reads as such :- 50. Conditions under which search of persons shall be conducted – (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] And from the plain reading of the above, it appears as mandate for the raiding party to make the suspect aware of his legal right to be searched in presence of a Gazetted Officer and only in the event of his denial of availing such legal right, the search made be done/conducted. 7. The Apex Court in the case of “Vijaysinh Chandubha Jadeja v. State of Gujarat” reported in “AIR 2011 Supreme Court 77” in paragraph – 22 has said :- 22. 7. The Apex Court in the case of “Vijaysinh Chandubha Jadeja v. State of Gujarat” reported in “AIR 2011 Supreme Court 77” in paragraph – 22 has said :- 22. ………………………………………………………………… the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would 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. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article 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. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. …………………………………………………………………… that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and credit-worthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceeding, it may verily strengthen the prosecution as well. And the same view has also been expressed in subsequent decision of the Apex Court in the case of “Narcotics Central Bureau v. Sukh Dev Raj Sodhi” reported in “AIR 2011 Supreme Court 1939”. 8. In view of the above, there appears no reason to permit the conviction and sentence of the appellant to continue further. Consequently, the appeal is hereby allowed, the judgment of the court below is set-aside and the appellant is ordered to be at once released, if at all, not required in any other case. Appeal allowed.