2 Criminal ApEe-al Nn‘ 31 8 Of 199 1 (3) The facts, briefly stéted, are as under:— On 10.2.90, Inspector B.P. Ahirwar (PW—2 — Station House Officer of City Kotwali, Raigarh) received information that the appellant was holding possession of some contraband On the said information, he traced the appellant near railway crossmg, Sarangarh Road Raigarh and made his personal search and found that the appellant was havmg 5 grams of ganja which was kept In 7 small packets A seizurc memo (Ex.—P/2) was prepared and ganja was taken into custody by the police. On 13.2.90, the said material was sent for its examination to Mr D Singh Excise Sub—Inspector, Raigarh through memo Ex P/4 The said article was examined by Mr D Singh who prepared his report (Ex P/1) and found that the send article was ganja After completion of search and seizure the First Information Report (Ex —P/3) was registered in the concerned police station by B P Ahirwar Mr ' D Singh who examined the contraband died during the ‘pendency of the trial. The report (Ex. P/1) submitted by D Singh was proved by Ram Singh (PW—1) who happened to be a co—worker with Mr. D. Sing-h. He identified his signature on the report (Ex.-P/1 ). The learned Sessions Judge relied on the testimony of B.P. Ahirwar (PW—2) and conVIcted & sentenced the appellant as aforementioned He recorded a finding that the ganja in quantity of 5 grams was seized from .the possession of the appellant which the appellant has kept in 7 small packets. (4) (5) A perusal of the record Would show that Mr. B.P. Ahirwar (PW- 2) has not complied with the mandatory provisions of Section50 of as there appears to be no material on record that the N.D.P.S. Act before such search of the person of the appellant, he gave any notlce to him or in any manner he complied with the provisions of Sect'on 50. Deo, learned Govt. Advocate appearing on behalf (6) ' Mr. U.N.s. oftha State, would submit that the compliance of Section 5O was not. facts and circumstances of the case, as the required in/ the concerned officer was not having a definite personal knowledge regarding holding of the contraband by the appellant. (7) l have heard Mr. U.N.S. Deo at length and have also perused the records of the sessions case. of the N.D.P.:3. Act is mandatory in nature and (8) Section 50 there exists an obligation to comply with the provisions of Section 50 and non compliance thereof would entail in an order of acquittal in a proceeding under the N.D.P.S. Act. ln State of Punjab —Vs- Baldev SCC 172 in paragraph 12, the Supreme Court .§!'!lgb (1999) 6 stated as under:- “12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer,'without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on 3 Criminal Appeal No. 3 1 8 of 1991 . @ 4 Criminal Appeal No. 318 of 1991 completion of- that search, a contraband under'the ' NDPS Act is also recovered, the requirements of . S. 5O of the Act are not attracted. " (9) Therefore, it is clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf by the empowered officer, then if the person w’ to be searched requires to be taken to a gazetted officer or the nearest Magistrate, the same must be complied with and failure to comply with the same would constitute an infraction of the requ'wements of the provisions of S. 5O which would ultimately vitiat'e the conviction. (10) In the present case if we look into the evidence of B.P. Ahirwar (PW-.2), he deposed that on 10.2.90, he received secret information g, that the appellant was holding illegal ganja with him. On this information, he made a search of‘the person of the appellant and seized 5 grams of ganja which was kept in 7 'small packets. This makes it clear that B.P. Ahirwar was having prior information that the appellant was holding ganja, and on that pretext only he made the personal search of the appellant. If the personal search was made on the basis of prior information, then, in the above facts and Circumstances of the case, compliance of the provisions of Section 50 was mandatory. Since we do not find that there was compliance of SSectiori 50 of the N.D.P.S. Act, the entire proceedings regarding search and seizure from the possession of the appellant vitiate and