Mere informing the person that they may require the presence of a Gazetted Officer or Magistrate would not fulfil the requirement of Section 50 of the NDPS Act unless the person concerned is apprised of their legal right about such presence.

( 1 ) THIS appeal is at the instance of the convict-appellant Zamil akhtar from Jail challenging his conviction and sentence passed by the learned Judge, Special Court under the N. D. P. S. Act in connection with t. R. Case No. 23 of 1997.

( 2 ) THE prosecution case in short was that on 15lh May, 1997 at about 21. 05 hour the officer of the Golabari P. S. under the leadership of the inspector of Golabari P. S. detained the present appellant along with another and recovered 1 gm. of heroine from the possession of the said appellant in presence of witnesses. According to the prosecution, after due compliance of all the necessary provisions of law, seizure of the said article was made on the spot and samples was also taken in presence of witnesses. In course of investigation samples so taken was sent for chemical examination and after ascertaining the identity of the said sample to be heroine, charge-sheet was submitted against the present convict-appellant under Section 21 of the N. D. P. S. Act.

( 3 ) DURING trial the learned Judge after recording the evidence of prosecution witness and after considering the seizure list along with the chemical report and also after taking into consideration the submissions of both the prosecution and the defence came to the conclusion that on the date and time as stated by the prosecution the contraband article was found from the possession of the appellant and seizure of the same was made in due compliance with the relevant provision of the Act. The learned Judge also concluded that the seized contraband was nothing but heroine and hence considering the quantum of the article seized, the learned Judge found that the prosecution was successful to bring home the charge under section 21 of the N. D. P. S. Act against the convict-appellant.

( 4 ) AFTER holding the convict guilty of the offence under Section 21 of the N. D. P. S. Act the learned Judge passed the sentence in accordance with law which was 10 years R. I. and also to pay of fine of Rs. 1 lakh, in default, further R. I. for a period of two years.

( 5 ) IN support of the present appeal Mr. Roy with Mr. Ghosal, appearing for the appellant, submits that they would like to take up only one point of law in support of their contention to challenge the present judgment and order impugned in this appeal.

( 6 ) MR. Roy contends that there is no denying of the legal position now established through a plethora of decision pronounced by the Hon'ble the supreme Court that Section 50 of the N. D. P. S Act is not a mere legal ritual but it casts a serious legal obligation on the part of the prosecuting agency before booking a person under the said Act since there is stringent provision of punishment underthe N. D. P. S. Act. Mr. Ray contends that the provision of Section 50 of the said Act came up for judicial scrutiny before the Apex court on time without number and it has been uniformly held by the Apex court that there must be strict compliance of the said section before a person is searched by the police personnel or other personnel entrusted with the task of searching in connection with the N. D. P. S. Act.

( 7 ) MR. Ray has raised a question as to what would amount to true and actual compliance of Section 50 within the meaning of the statute and to this Mr. Ray submits that according to the correct interpretation of Section 50, the officer before conducting the search should not only inform the person concerned that he may require the presence of a Gazetted Officer or a Magistrate and it is his legal right to get searched of his person in presence of such Gazetted Officer or Magistrate. Mr. Ray submits that mere informing the person that he may require the presence of Gazetted Officer or Magistrate would not fulfil the requirement of Section 50 of the said Act unless the person concerned is apprised of his legal right about such presence. Mr. Ray to substantiate his point has relied on a decision of the apex Court in the case of