Anil Dev Singh, J.

( 1 ) THE appellant has been convicted under Section 15 of the N. D. P. S. Act (for short the Act ) by Shri Kuldip Singh, Additional Sessions Judge, vide his order dated January 19, 1993. By a subsequent order dated January 20,1993 the petitioner has been sentenced to undergo ten years rigorous imprisonment and has been directed to pay a fine of Rs. l,00,000. 00.

( 2 ) ON December 9, 1989 at about 4. 35 p. m. the appellant was intercepted at the S. B. T. by the Investigating Officer SI Ram Sewak (Public Witness -5), ASI 0m Prakash and Constables Raj Pal and Rameshwar. On the search of the petitioner he was found in possession of 30 kgs. of poppy powder.

( 3 ) THIS appeal raises a short point. The question to be determined is whether the petitioner was given notice under Section 50 of the Act before his search was effected by the Investigating Officer. The learned Additional Sessions Judge has held that the prosecution was able to prove that a notice under Section 50 of the Act was given to the appellant.

( 4 ) LEARNED Counsel for the appellant submits that the finding of the learned Additional Sessions Judge is against the material on record. I have gone through the evidence on record. Public Witness -3 Constable Rameshwar Singh stated that the accused was asked if he would like to be taken before a Gagazetted Officer in connection with his search. Public Witness -3 does not say that the appellant was informed by the Investigating Officer that he could be searched before a Magistrate as well. He nowhere states that any written notice undersection 50 of the Act was given to the appellant. The witness merely talked of an oral limited option not in confirmity with the provisions of Section 50 of the Act. On the other hand, Public Witness -5 SI Ram Sewak and Public Witness -8 Vishwa Nath deposed to the effact that a notice under Section 50 of the Act was given but the same was torn by the appellant. If that was so, a question arises as to why the torn pieces of the notice were not produced at the trial. It is the duty of the prosecution to prove beyond reasonable doubt that the provisions of Section 50 of the act were complied with by the Investigating Officer before conducting the search of the accused. In case a notice in accordance with Section 50 of the Act was given to the appellant there was no reason why Public Witness -3 Constable Rameshwar Singh failed to state that a written notice was given to the appellant. Rather he REFERRED TO a partial oral option given to the appellant. Thus, on this point there is a serious contradiction between the statement of Public Witness -3 on the one hand and Public Witness -5 and Public Witness -8 on the other which makes the claim of the prosecution to have given a notice in conformity with Section 50 of the Act doubtful. Therefore, in my view the prosecution has failed to prove that the Investigating Officer before the search of the appellant gave a notice in accordance with the provisions of Section 50 of the Act. If the prosecution fails to establish the compliance with the mandatory provisions of Section 50 of the Act, then the benefit of non-compliance must go to the accused. The Supreme Court in the case of State of Punjab v. Balbir Singh, JT 1994 (2) SC 108=l (1994) CCR 146 (SC), has held that under Section 50 of the Act a duty is cast upon the officer about to make a search of the accused to intimate to him that if he so requires he would be taken before the nearest Gazetted Officer or the nearest Magistrate for the purpose of making search in their presence. In this regard, the Apex Court has laid down as under:

"one another important question that arises for consideration is whether failure to comply with Hie conditions laid down in Section 50 of the NDPS Act by the empowered or Authorised Officer while conducting the search, affects the prosecution case. The said provision (Section 50) lays down that any officer duly authorised under Section 42, who is about

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