( 1 ) THIS is a petition for grant of bail on behalf of the petitioner who is facing trial for offences under Sections 21/61/85 of the N. D. F. S. Act since the year 1987. Learned Counsel for the petitioner has sought bail on the following grounds:- 422 1. Inordinate delay in trial 2. Sickness of the petitioner 3. Non-application of Section 50, NDPS Act

( 2 ) SO far as the first point is concerned, the trial has been going on since 1987 and inspite of directions from this Court on four occasions in separate cases the trial has not concluded. According to the petitioner the delay in trial is being caused mainly by the prosecution due to non-production of its witnesses. However, Counsel for the respondent does not accept this. All the same it is obvious that there has been inordinate delay in trial in this case. Admittedly the prosecution has yet to conclude its evidence. In the nature of the case it is mostly the police people who are to be examined, still they are taking it very casually.

( 3 ) THE petitioner is stated to be a heart patient and has been granted bail from time to time for medical reasons. At persent also it appears that he is on bail and various documents have been annexed with the present application to justify continuation of the bail of the petitioner on medical grounds.

( 4 ) NOW coming to the point of non-compliance of Section 50 of the NDPS Act the learned Counsel for the petitioner has drawn my attention to the Rukka on running page 21 of the petition. The Rukka does not mention anything about the notice or option being given to the petitioner in terms of Section 50 of the NDPS Act. As per the Rukka the recovery of the 5 kg smack was affected on 23. 3. 1987. Copy of the notice under Section 50 of NDPS Act is placed on running page 19 of the petition which shows that the notice was allegedly given on 23rd March, 1987. This fact alone prima fade shows non-compliance of Section 50 of NDPS Act because the search and seizure which took place on 22. 3. 1987. The notice cannot be given after the event. The notice is allegedly signed by the petitioner and the petitioner has put the date 23rd March, 1987 under his signatures. Likewise, the Inspector who has signed the notice, has put the date 23rd March 1987 (though there is some overwriting on the date ). Another point which arises for consideration in the notice is whether it complies with the provisions of Section 50 NDPS Act? According to the learned Counsel for the petitioner the notice contains only a partial offer that is if the petitioner wanted his search to be conducted by a Gazetted Officer, Shri Raghbir Singh, ACP who was present at site, it could be arranged. This according to the petitioner is no compliance of the statutory provision which has been held by the Supreme Court to be mandatory. In reply to this the learned Counsel for the respondent submits that according to Section 50 NDPS Act it is not mandatory that the offer should be made for a search in the presence of a Gazetted Officer or a Magistrate. It is enough to make the offer for search before either of the two officers. The argument is that the word used is or and so long as the offer is made for search in the presence of either of these officers, that is enough. The word or is not to be read as and so as to mean that the offer is to be made for search before either of both the officers. While making the officer mentioning both the officers is not required under the law, according to the learned Counsel.

( 5 ) I have carefully considered this argument in the light of Section 50 as well as the judgment of the Supreme Court in State of Punjab v. Balbir Singh, JT 1994 423 (2) SC 108. Para 22 which contains the conclusion in this behalf is reproduced as under:- "when such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore, it is to