JUDGMENT

N.K. Jain. J. - This is a jail appeal by the prisoner Madan Singh who has been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act. 1985 and sentenced to undergo imprisonment for 10 years and pay fine Rs. 1.00 lac in default to further undergo 2 years R.I vide judgment dated 21-4-1995 passed by Additional Sessions Judge. Garoth in S.T. No. 302/90

2. In short the case of the prosecution against the appellant was that on 6-11-1990 police patrolling party on the basis of some prior information had apprehended appellant in a running train No. 9019 at the Railway Station. Garoth and took him to P.S.G. RP. Shyamgarh where the Station House Officer RS Hatila (P.W.8) after due compliance of the provision of Section 50 of the Act searched the appellant accused and recovered 2.500 kgs of opium from his possession. Two samples of 30 gins each of the seized contraband were prepared and on chemical analysis it was confirmed that the seized contraband was opium. After other due investigation the accused was charge sheeted for trial.

3 At the trial the accused pleaded not guilty and denied all the circumstances appearing against him in the prosecution evidence. The learned Additional Sessions Judge after trial held the appellant guilty and convicted and sentenced him as aforesaid.

4. I have heard Shri A. N. Pradhan learned Counsel for the appellant appointed by the Legal Aid Board and Shri G. Desai learned Govt. Advocate for the respondent-State.

5. The only point advanced by the learned Counsel for the appellant is that there was no compliance of the mandatory provision of Section 50 of the Act inasmuch as the appellant-accused was not informed of his right of being searched by or in presence of a Gazetted Officer or Magistrate Although the prosecution witnesses Constable Virendra Singh (P.W.6). Head Constable Jaipal Singh (P.W. 7) and S.I. R.S Hatila (P.W. 8) have deposed that before effecting search of the appellant he was asked as to whether he wants to be searched by or in presence of a Gazetted Officer or Magistrate. However in the memo Ex. P-15 prepared in this behalf what is mentioned is this only:

"MAIN APKE SAMAN KI TALASHI LENA CHAHATA HOON. KYA AAP MERE KO TALASHI DENEY KO TAIYAR HAIN. AGAR AAP MERE KO TALASHI NAHIN DENA CHAHTE TO KISI DUSREY V ARISHT ADHIKARI KO TALASHI DEY SAKTEY HAIN.

6. In the memo Ex. P-15 there is no mention of any Gazetted Officer or Magistrate. So what the three P.Ws. above have deposed is not borne out from the memo Ex. P-15. It cannot be thus said that the accused was informed of his right being taken to a nearest Gazetted Officer or Magistrate before being searched. Needless to add the provision of Section 50 is mandatory and non-compliance thereof would affect the prosecution case and vitiate the trial. See: case of In re: Balbir Singh1.

7.In the case of In re: Laxman Jaina2 where the accused was asked as to whether he wanted to be searched in presence of a Gazetted Officer and where there was no mention of a Magistrate the High Court of Orissa has held that such a partial offer seeking option amounts to non-compliance of the provision of Section 50 of the Act. In the instant case as is evident from the memo Ex. P-15 there was virtually no compliance of this mandatory provision. The trial against the appellant is therefore vitiated and he is entitled to be acquitted.

8. This appeal, thus succeeds and is allowed. The conviction and sentence awarded against the appellant are set aside and he is acquitted of the charge under Section 8/18 of the Act. He shall be set at liberty forthwith if not required in any other case.

Appeal allowed.

1. A.I.R. 1994 S.C. 1872.

2. 1995 Cr. L.J. 2993.