IMPORTANT POINT
Under Section 50 of the Narcotic Drugs and Psychotropic Substances Act the accused has the option to be searched either by the Police Officer or the nearest available Gazetted Officer or the nearest available Magistrate. There is no further option to choose such nearest Senior Officer.

JUDGMENT

Bharucha, J.-Leave granted.

2. This appeal impugns the judgment and order of the High Court of Punjab and Haryana. It comes to be heard by a Bench of three Judges by reason of the fact that an order was made on 8th January, 1996, in that behalf, having regard to the fact that the question was found to be of importance, namely, whether a person to be searched under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") has a right to be given an option of being searched either by a Gazetted Officer or by a Magistrate.

3. On 1st May, 1991, a police party, led by the Station House Officer, Jakhal, upon information received, conducted a raid on the harvesting floor of the accused near village Puran Majra. The accused was found holding a bag in his hand. He was given the option of being searched by the said Police Officer or before a Gazetted Officer. The accused opted to be searched before a Gazetted Officer. He was then searched in the presence of a Gazetted Officer and the bag he was carrying was found to contain opium. He was charged with an offence punishable under the Act and tried. The evidence of the prosecution was accepted. The trial Judge convicted the accused of the offence punishable under Section 18 of the said Act and he was sentenced to undergo rigorous imprisonment for a term of ten years. The High Court, by the order that is impugned before us, upheld the conviction and sentence. It noted that the appellant had contended that the provisions of Section 50 had not been complied with, but it found that the evidence showed that he had been asked whether he wanted to be searched before a Gazetted Officer and, when he expressed that desire, he was so searched. The conviction and sentence was affirmed.

4. The only argument which is advanced on behalf of the appellant before us is that indicated in the referral order.

Section 50 reads thus :

"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. It is submitted on behalf of the appellant that an accused may be willing to be searched by a Police Officer duly authorised under Section 42, but if he is not, he must be given the option of being searched either before a Gazetted Officer or before a Magistrate. If the accused is not told that he can opt to be searched before a Gazetted Officer or before a Magistrate, the provisions of Section 50 are not satisfied.

6. Reliance was placed by learned counsel for the appellant upon the decision in Saiyad Mohd. Saiyad Umar Saiyad & Ors. v. State of Gujarat , (which was delivered by one of us, Bharucha, J., on behalf of a Bench of three Judges). It was submitted that the observations therein supported the aforesaid submission. In paragraph 7 of the judgment this was said :

"Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (e) of the Indian Evidence Act, 1872 ........... Very relevant in this behalf is th