Non-compliance of the mandatory provisions of Section 50 and 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, vitiates the conviction.

( 1 ) APPELLANT has been convicted for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Slifastances Act 1985 vide judgment dated August 11, 1987 of Additional Sessions Judge, Delhi and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a line of rupees one lakh and in case of dault in the payment of fine, simple imprisonment for one year vide separate order of the same date. Appellant has challenged his conviction unit sentences by filing the present appeal through jail. Althoueh appeal was barred by limitation, still the appeal has been admited to hearing on merits vide order dated Dccen -. ber ifc i^87 by Malik, J.

( 2 ) THE case of the prosecution in brief is that S. L Anjani Kumar while posted at Police Station Greater. Kailash Part I had received a secret information w aboul 2. 3c P. M. that some person would be coming in front of Thikana Guest Hou. se. B Block Greater Kailash-l carrying some narcotics, and he thereafter organised a raiding party comprising of S. I. Kailash Chand, Dayal Singh Kang, Head Constabis Suraj Bhan and some. police constables and after joining cne Ashwani Kumar, a public witness, the appellant was apprehended at the place pointed out by the secret informer at about J. P. M. and he was found to be carrymg a V. I,p. Suitcase in his right hard. There were two other persons also apprended who were present alongwith the appellant. The VIP Suitcase which was in possession of the appellant was searched and it was found to cohlaina plythene bag containing the charas and the charas was weighed and it was found to be 900 gramms. and after taking sample of 10 arames from the said charas, the same were converted into seated parcels and scaled with the- seals of the 1. 0. The case was registered by sending the Rukka Ex. Public Witness 2;a as per FIR, copy of which is Ex. Public Witness 2/b. The sample was sent for analysis and report Ex. Public Witness 41a was received fromc. E. S. L. ; expeit showing that the con ents of ths same gave positive test for charas.

( 3 ) THE appellant was not in a position to engage any counsel. so M/s. Neelam Grover. Advocate was appointed amicus curiae to argue the appeal on behalf of the appellant at State expense. I have heard the arguments and gone through the file and find that conviction and sentences of the appellant cannot be sustained. It is clear from the evidence led on the record and from the contents of the F. I. R. that mandatory provisions of Section 50 of the Act have not been complied with. Section 50 of the Act read as follows : 50.

(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 the nearest Magistrate.

(2) If such requisition is made, the officer may detain the, person until he can bring him before the- Gazetted Officer or Hie Magistrate referred to in sub-section (1 ).

(3) The Gazettcd Oilicer 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 shaft be searched by anyone excepting a female. So. it was incumbent on the part of the Investigating. Officer to Have given the option to the appleant that search can be carried out in presence of a gazetted officer or Magistrate and only after the appellant had exerciaed his option that the search of the appellant could becarried out. In the present case such an option was not given to the appellant before his bag was searched and the charas was recovered. There is mention in the Rukka Ex. Public Witness /2a that after the recovery has been effected the option was given to the appellant that he can be produced before A. C. P. This option was o