JUDGMENT - D.G. DESHPANDE, J.:---Heard Mr. Anil Lalla for the appellants and Mr. P. Singhal A.P.P. for the State.

2. These two appellants were accused Nos. 1 and 2 in N.D.P.S. Case No. 1472 of 1990 in which they were convicted by the Special Judge (Narcotics) Shri S.P. Davare by his order dated 15-7-1999 for offences under section 8(c) punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act") and they were sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer R.I. for 1 year. There was one more accused by name Samuel Pushpadas Christian who was also facing trial along with the above two appellants, but he was acquitted of the charges.

3. Mr. Lalla raised only one question, which according to him goes to the root of the matter and effects the conviction and sentence of the appellants accused. He urged that there is no compliance to section 50 of the N.D.P.S. Act in the present case. He drew our attention to the panchanama, Exhibit 10' which is dated 25-9-1990. The following four lines of the panchanama which are relevant are reproduced as under:

"Than Sr. P.I. Puntambekar and P.I. Pawar, disclosed their identity and informed them that they wanted to take their personal searches. P.I. Pawar asked them whether their searches to be taken by Class-I Officers, but they declined."

4. According to Mr. Lalla, panchanama is the document on which the case of the prosecution rests and nothing can be added to it by the witnesses in their oral evidence before the Court. According to him section 50 of the N.D.P.S. Act requires that accused should be made aware of their rights to have the search by Gazetted Officer or by Magistrate and since the panchanama, Exhibit 10 does not disclose that appellants-accused were made aware of their rights in this regard, the entire search becomes illegal.

5. Mr. Lalla also relied upon judgment of the Full Bench of the Supreme Court in the case of (The State of Punjab v. Baldev Singh etc.)1, in Criminal Appeal No. 396 of 1990, dt. 21-7-1999 reported in 2000(5) Bom.C.R. 235 wherein Full Bench i.e. Five Judges Bench of the Supreme Court has in clear terms laid down the effect of non-compliance of section 50 of the N.D.P.S. Act. Our attention was drawn to sub-paragraphs (2), (6) and (7) of paragraph No. 51 on page 263-264 of Bom.C.R., which reads as under:

"(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(6) That in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from sub-section (1) of section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguard provided in section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;"

Further our attention was drawn by Mr. Lalla to the evidence of P.W. 1 Sabir Mehmood and P.W. 2 Suresh Ramchandra Pawar so far as the compliance to section 50 of the N.D.P.S. Act is concerned. P.W. 1 Sabir Mehmood the panch witness has stated that the Police Officer asked the accused whether the accused wanted to be searched by the "Bada Officer". According to Mr. Lalla the word Bada Officer is not in consonance with the provisions of section 50 of the N.D.P.S.

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