( 1 ) THIS appeal is directed against the Judgment of Mr. S. L. Khanna, Additional Sessions Judge, New Delhi, dated 7th August, 1990 The learned Additional Sessions Judge convicted the appellant under Section 201 of the N. D. P. S. Act, and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs. l lakh. In default of payment of fine, accused was directed to further undergo R. I. for one year.

( 2 ) BRIEF facts necessary to dispose of this appeal arc recapitulated as under: On 4. 7. 1986, Inspector Ishwar Singh (Public Witness -5) who was a Sub Inspector at the relevant time, was present near Biria Mandir on patrol duty along with ASI Sri Kishan (Public Witness -2), A. S. I. Shivnand Tyagi (Public Witness -4) and some other constable At about 9-10 p. m. he received a secret information that a person would come on a two wheeler scooter from the side of Cole Dak Khana via Kali Bari Marg and would go towards Mandir Marg and that he would be carrying smack (heroin ).

( 3 ) INSPECTOR Ishwar Singh on receipt of this information constituted a raiding party and requested 4-5 persons to join the raiding party but was able to persuade only Shri Brahm Shankar Sharina (Public Witness -6) and he was associated in the investigation. Naqabandi was conducted at the corner of Kali Bari Marg and Mandir Marg At about 9. 30 p. m. accused Mukesh came from the side of Col Dak Khana driving a scooter No. DEJ-2405. He was stopped and apprehended at the pointing out the informer. Immediately thereafter, the S. H. O. of P. S. Mandir Marg rcached there. In the presence of the S. H. O. secret information was disclosed to the accused 70 and he was informed that he could be searched before a Gazetted Officer. On search, an envelope containing 15 grams of smack was recovered from the accused. On the strength of the prosecution evidence, the learned Additional Sessions Judge convicted the appellant under Section 21 of the N. D. P. S. Act.

( 4 ) AGGRIEVED by that judgment, the appellant has filed the present appeal. In this appeal, Mr. Kaira, learned Counsel for the appellant at the outset argued that there is no compliance of Section 50 of the N. D. P. S. Act because the appellant was given a limited option and not the option as envisaged by the Act. Section 50, N. D. P. S. Act reads as under: "50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 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 Section 42 or to nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate REFERRED TO to Sub-section (1 ). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. "

( 5 ) ACCORDING to Section 50 of the Act, the accused must be told that if he so wishes, he can be searched before a Gazetted Officer or a nearest Magistrate. In the instant case, no formal notice in writing under Section 50 of the N. D. P. S. Act, was given to the accused. Learned Counsel has invited my attention to the statement of PW-5, Inspector Ishwar Singh about what in which he has mentioned to the accused and the relevant portion reads as under: "i told the accused that in case he wanted, his search to be conducted before a Gazetted Officer, this could be done and a Gazetted Officer could becalled. " 6. Similarly, PW-4, ASI Shiv Nand Tyagi has stated in his statement that the accused was told that he could be searched before a Gazetted Officer. S. I. Ishwar Singh also submitted that the accused c