( 1 ) THIS appeal raises important questions of law which pertains to applicability, interpretation and exposition of provisions of Secs. 41, 42, 43, 50 and 51 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (n. D. P. S. Act ).

( 2 ) THE main question which requires our examination and adjudication in light of provisions of N. D. P. S. Act is "whether mandatory requirement of provisions of sec. 50, required to be observed by the empowered or authorised officer under Sec. 50 for search of person will be attracted, even in case of gazetted officer ? In other words, benefit of mandatory provisions of Sec. 50, whereby, a person to be searched, is entitled to be searched, in presence of a gazetted officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate, can be claimed by him even when the empowered or authorised officer is a gazetted officer ? So, non-compliance of mandatory provisions of Sec. 50 for search of person under the provisions of Secs. 41, 42 or 43 when the officer himself is a gazetted officer; would it be obligatory on the part of such gazetted officer to inform the person so searched, what will be legal implication in case of failure to inform the person to be searched that he is to be searched in presence of a gazetted officer or a Magistrate ?

( 3 ) IN order to appreciate the merits of the aforesaid question involved in this appeal under the N. D. P. S. Act, it would be expedient to have a glance at the relevant and important skeleton of projection of the facts giving rise to this appeal. In this appeal, the raiding party was headed by police inspector who is admittedly enjoying the status of a gazetted officer.

( 4 ) IT is in this context that it would be appropriate to have a glance at the factual scenario emerging from the appeal. In this appeal, the appellant who is the original accused has assailed the judgment and order recorded by the learned City Sessions judge, Mr. F. R. Makwana, on 16-9-1991, whereby, the appellant came to be held guilty for the offences punishable under Sec. 20 (b) (ii) of the N. D. P. S. Act. who, is hereinafter, referred to as the accused. Thus. the accused came to be convicted and sentenced to suffer R. I. for ten years and fine of Rs. 1,00,000. 00. in default. to suffer R. I. for one year. Original accused No. 2 was not, found, guilty and came to be acquitted and there is no acquittal appeal against him. The complainant PW 6. P. I. Jadeja, who was serving in Madhavpura Police station, Asarva. Ahmedabad, at the relevant time. received information from some person that one autorickshaw was to come from Dariapur, Charvad. unauthorisedly. containing CHARAS therein. He, at that time, was on combing-night duty, near Prem darwaja Police Chowky, along with, other police officers, thus, on 23-10-1990, P. I. Mr. Jadeja, upon receipt of information, called two panch witnesses one Ashokbhai and Ghanshyambhai Champaneri who were given to understand the brief idea of the information received by him and they were ready to work as Panchas.

( 5 ) ON that day, like that on 23-10-1990, at about 12. 30 p. m. . one autorickshaw bearing No. 2984 came from Dariapur, Charvad, in which two passengers were sitting. It was stopped the police. On being asked, the passengers gave their names. One of them Nurmohmed Musabhai is the appellant and the other one was child offender Yasin Noor Mohmed. The driver of the rickshaw Hamimuddin Huseinuddin was accused No. 2 before the trial Court. Upon search by P. I. Jadeja, with the help of members of the raiding party, the accused was found having rexin bag bearing mark of s. T. and there was one covered handkerchief and two plastics bags were found from him which were opened. These bags contained black coloured substance and on verification, and smelling, the substance was suspected to be CHARAS by the police and the panch witnesses. Nothing was found from the rickshaw driver, accused No. 2 who came to be acquitted an