Non-compliance with the mandatory provisions of Section 50 of the NDPS Act vitiates the trial and renders the contraband seized inadmissible as evidence. The court can record its satisfaction that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, even before the trial commences.

N.K.Sinha, J.

1. Heard Mr. A. Amanullah, Counsel for the petitioner and Counsel appearing for the State.

2. The petitioner claims to be a petty businessman and he is in custody in Kochas PS. Case No. 93 of 1994 under Secs. 22. 27 and 32 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short). The prosecution case in short is that the informant, a Sub-Inspector of Police, received confidential information at 8.15 a.m. on 19-12-1995 that a person was selling Heroin in front of the shop of one Dubey. With a view of verify the truth of the information received, the informant, after making the Station Diary Entry, left for the P.O. alongwith an Assistant Sub-Inspector and some armed constables. The petitioner was arrested on the spot and he correctly disclosed his identity. On search in presence of the witnesses, 20 Purias each containing Heroin as also a cash of Rs. 125/ - were recovered from his pocket. A seizure list was prepared which was signed by the witnesses as also the petitioner. The case of the petitioner is that he runs a Kirana shop next to the shop of Mr. Dubey and the police personnel of local Thana were in the habit of harassing the petitioner for not meeting their illegal demands. It was on account of annoyance caused by the petitioner that the police has falsely implicated him in the case.

3. Mr. Amanullah pressed the application for grant of bail mainly on the ground that the mandatory provisions of Sec. 50 of the NDPS Act which laid down the conditions under which search of persons shall be conducted had not been followed. It was pointed out that the local Sub Inspector of Police who himself recorded his fardbeyan, did not say a word that the petitioner was given the option of being searched according to the conditions laid down in Sec. 50 of the NDPS Act. It was, therefore, pointed out that due to violation of the mandatory provisions of Sec. 50, the petitioner, even assuming that the recovery was made, cannot be fastened with the liability of unlawful possession and this was enough to make out a case that there were reasonable grounds for believing within the meaning of Sec. 37 of the NDPS Act that the petitioner was not guilty of the offence. Sec. 50 of the NDPS Act reads:

"Conditions under which search shall be conducted. - (1) When any officer duly authorised u/Sec. 42 is about to search any person under the provisions of Sec. 41, 42 or 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 Sec. 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detail the person Lintil he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-sec. (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought, shall, if he sees no reasonable grounds for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by any one excepting a female."

4. In State of Punjab V/s. Balbir Singh, the Apex Court held that the provisions of Sec. 50 are mandatory. It was observed therein that on prior information, the empowered officer or authorised officer while acting u/Sec. 41(2) or 42, should comply with the provisions of Sec. 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It was laid down that it was obligatory on the part of such officer to inform the person to be searched and failure to inform the person to be searched and if such person so requires, failure to take him to Gazetted Officer or the Magistrate, would amount to non-compliance of Sec. 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. The Apex Court in a recent decision dated 28-9-1994 in Ali Mustafa Abdul Rahmand Massa V/s.