( 1 ) THE accused-appellant of Criminal Case No. 6 of 1990 came to be convicted of offences under Sec. 20 (b) of the Narcotic Drugs and psychotropic Substances Act, 1985 (hereinafter referred to as the N. D. P. S. Act) by the learned Sessions Judge of Kutch at Bhuj by his order dated 24-1-1992. As a result the learned Judge awarded 10 years rigorous imprisonment and a fine of rs. 1 Lakh and in default to undergo one more year of imprisonment.

( 2 ) THE facts leading to the aforesaid result at the end of the trial are that on 30th april, 1990, complainant - a P. I. of the State Police had received information about two persons being in the process of bringing contraband article (narcotic) for the purpose of selling. Alongwith Panchas, therefore, complainant - P. I. and members of the raiding party went at the likely place from where the accused were to pass and waited there. Their wait was rewarded. Two persons on seeing the waiting party started running away and the police party succeeded in catching hold of them.

( 3 ) IN the course of search, 450 gms. of a material which was ultimately found to be charas was recovered from the present accused-appellant and after taking out for the purpose of analysis sample weighing roughly 10 gms. , rest of the article was seized, sealed and was kept as muddamal.

( 4 ) THE charge came to be framed under the aforesaid section and after elaborate trial, the learned trial Judge by his fairly long and reasoned judgment came to the aforesaid conclusion of guilt and awarded the aforesaid sentence.

( 5 ) THE main point urged on behalf of the appellant by the learned Advocate Miss dutta is that the accused has got a right under Sec. 50 of the N. D. P. S. Act of being informed that he be searched by a Gazetted Officer or a Magistrate and when the members of the raiding party has not complied with this mandatory requirement as provided under Sec. 50 of the N. D. P. S. Act, the prosecution must fail.

( 6 ) LEARNED Advocate for the appellant relies on the judgment given in the case of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, for the purpose. At Head note B, paragraphs 17, 21 and 26, the learned Judges of the Supreme Court have categorically expressed themselves to the effect that compliance with the provisions of Sec. 50 read with Secs. 41 and 42 is an imperative requirement. Later on, no doubt, as rightly pointed out by learned A. P. P. Mr. A. J. Desai, appearing for the state, there are later Supreme Court pronouncements that each case has to be evaluated on its own merits and facts and circumstances attendant to it should be borne in mind. In a given case, after the contraband article is found unexpectedly or if it was not at all possible to contact either a Gazetted Officer or a Magistrate and so on the case may turn on that. For this purpose, Mr. Desai, relied on the case of State of Himachal Pradesh v. Pirthi Chand and Anr. , reported in 1996 (2) GLR 699 (SC ). As we went through the judgment we found that that is mainly with regard to admissiblity of evidence on the ground whether the evidence is relevant or not. So far as the relevance of the material thus gathered even in violation of sec. 50 of the N. D. P. S. Act is concerned it will of course be governed by the provisions of the Evidence Act, and therefore, the prosecution may press into service the relevant provision of the Evidence Act. However, in the instant case, it is not even remotely suggested that the material thus gathered by the search party should be used. In fact, it has been allowed to be used and it is not the grievance of either of the sides that the evidence has been shut out or from the point of view of the accused - appellant that the matter should not have been permitted by the trial Court to be admitted in evidence. We are concentrating only on the fact whether the said mandatory requirement had been complied with or not. Hence, the said decision in Pirthi Chands case (supra) will not help the prosecution.

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