( 1 ) HERE is yet another case under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which meets its Waterloo on account of non-compliance of section 50 of the Act.

( 2 ) LET me first provide a thumb nail description of the case as set up by the State. We are told that on October 7, 1990 on receipt of secret information that the appellant was having opium in his possession and was standing at the bus stand Vikas Kunj. Outer Ring Road, a raiding party was formed, the appellant was nabbed and subsequent to his refusal to get himself searched in the presence of a Gazetted Officer or a Magistrate, one kilogram opium was recovered from his possession.

( 3 ) AS we all know by now, Section 50 of the Act requires that the person to be searched has to be informed whether he would like to be searched before a Gazetted Officer or a Magistrate. Though the Counsel for the appellant insists that his option must necessarily be given in writing. I do not agree. However, the question still remains: Can it be said, on the basis of the evidence led by the prosecution, that the mandatory requirements of section 50 were followed ? I feel, the answer must be that they were not. Let me show why.

( 4 ) PUBLIC Witness 2 Head Constable Subhash Chand states that the information given to the accused was only to the effect that if he wanted he could be searched before a Gazetted Officer. Public Witness 5 Constable Satish Chander too has deposed that the offer was only confined to a Gazetted Officer. Thus, if both these witnesses are to be believed the offer was partial. True, the Investigating Officer Public Witness -9 ASI. Santokh Singh says that he had informed the accused of his right to be searched before the Gazetted Officer or a Magistrate but then, as already noticed above, his statement neither finds support nor corroboration form either Head Constable Subhash Chand or Constable Satish Chander. Rather, both of them believe him. I am, therefore, not inclined to believe that the offer was not partial. And, this Court has repeatedly held that partial offer violates the letter and spirit of Section 50.

( 5 ) IT is contended by Ms. Neelam Grover who appears for the slate, that even if it be assumed that Section 50 of the Act had not been complied with, it would neither vitiate the trial nor would it in itself be sufficient to invite an order of acquittal. In support, she relies upon a judgment of the Supreme Court in State of Punjab Vs. Jasbir Singh and Ors. 1 (1996) CCR 51 (SC) wherein it was observed:

" (T)HE evidence collected in breach of mandatory requirement does not become inadmissible. It is settled law that evidence collected during investigation in violation of the statutory provisions does. not become inadmissible and the trial on the basis thereof does not get vitiated. "

( 6 ) UNDOUBTEDLY evidence collected in consequence of a search conducted in violation of section 50, can be used as "evidence" in proceedings against that party but then, with respect, the Supreme Court does not say that the contraband seized as a result of an illegal search can be used fasten the liability of unlawful possession of the contraband on the person from whom it is allegedly seized as a result of such search.

( 7 ) THAT the provision of Section 50 are mandatory is not in dispute. I have already shown above that even if it is assumed that notice under Section 50 was given orally, the offer being only partial it did not comply with the requirements. In Ali Mustafa Abdal Rehman Moosa Vs. Stale of Kerala JT 1994 (6) SC 326 it was observed: "unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond reasonable doubt. Indeed the sei/. cd contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty. under the NDPS Act. "

( 8 ) IT may be noticed that in Ali Mustafa Abdul Rehman Moosa s