IMPORTANT POINT
Where the Authorised Officer was also a Gazetted Officer and had headed the raiding party, search and seizure in his presence in pursuance of option exercised by accused that he be searched in presence of Gazetted Officer would not amount to compliance of Section 50 of the NDPS Act.

JUDGMENT

M.S.A. Siddiqui, J. - This appeal is directed against the judgment dated 9-12-1996 passed by the Additional Sessions Judge, New Delhi in Sessions Case No. 92/96 convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh or in default to suffer further rigorous imprisonment for six months.

2. Briefly stated the prosecution case is that on 22nd July, 1996 a raiding party, led by the Superintendent, Narcotics Control Bureau, D.C. Misra (PW 6), upon secret information received, intercepted the appellant on platform No.2 of Hazrat Nizamuddin Railway Station. The appellant was found holding a suit case in his hand. He was given the option of being searched before a Magistrate or a Gazetted Officer. The appellant opted to be searched before a Gazetted Officer. Thereupon, D.C. Mishra PW 6, who was also a Gazetted Officer, took search of the appellant's suitcase in the presence of 'Panch' witnesses namely Ramkanwar PW 4 and Dhan Singh PW 5 and recovered 497 grams of heroin therefrom vide seizure memo Ex. PW 3/C. The appellant was charged with an offence punishable under Section 21 of the Act and tried. On an assessment of the evidence, the Additional Sessions Judge convicted the

appellant under Section 21 of the Act and sentenced him as indicated above.

3. Though a number of submissions were made by learned Counsel for the appellant, I need not detain myself to deal with all those submissions as in my opinion there is force in the main arguments of the learned Counsel that on account of the non-compliance with the provision of Section 50 of the Act, the appellant's conviction and sentence cannot be sustained. The evidence of the

prosecution pertaining to the recovery of the contraband revolves around the evidence of D.C. Mishra (PW 6), Shahid Hussain (PW 7), D.N. Tyagi (PW 3). Intelligence Officer Narcotic Delhi Zone Shahid Hussain (PW 7) testified that on 22nd July, 1996, he received a secret information (Ex. PW 6/A) that a Sikh gentleman with heroin in his possession would be leaving Delhi by Goa Express. Immediately thereafter, he conveyed the said information to his Director D.C. Mishra (PW 6), deposed, that on 27-7-1998, pursuant to the information (Ex. PW 6/A), he organised a raiding party consisting of himself and the Intelligence Officers, namely D.N. Tyagi, PW 3 and Shahid Hussain PW 7 and proceeded to the H. Nizamuddin Railway Station. He further deposed that the appellant was spotted at Platform No.2 of the said station and was found holding a suitcase in his hand. It is the evidence of D.C. Mishra PW 6 that he intercepted the appellant while he was about to board the train bound for Goa and he was given the option of being searched before a Gazetted Officer or a Magistrate. Thereupon the appellant opted to be searched before a Gazetted Officer. On the day in question, he was holding the post of a Gazetted Officer. He, therefore, took search of the appellant's suitcase which he was carrying and recovered a packet containing 497 grams of heroin therefrom vide seizure memo Ex. PW 3/G. It is significant to mention that there is nothing in the evidence of D.C. Mishra (PW 6) to show that he had informed the appellant about his status of a Gazetted Officer before taking his search. Thus it becomes clear that the appellant was not searched before a Gazetted Officer in accordance with the option exercised by the appellant under. Section 50 of the Act, Learned Counsel for the appellant submits that in view of the said evidence, the learned Additional Sessions Judge committed a grave error in holding that the search of the appellant by D C., Mishra PW 6, who was a member of the raiding party, was in due compliance with the provision of Section 50. Reference may now be instructively made to Section 50 of the Act, which reads us under:

"50. Conditions under which search of p