R. K. ABICHANDANI, J.

( 1 ) THIS Larger Bench has been constituted for considering the following question which as per the order made on 30th January 2003 by the Division Bench was required to be considered by a Larger Bench in view of the conflicting decisions of two Division Benches of this Court :"whether the option offered to the accused to ascertain his willingness to be searched in presence of a Magistrate without referring to be searched in presence of a Gazetted Officer or vice versa would amount to non-compliance of the provisions envisaged under Section 50 of the NDPS Act?"

( 2 ) THE appellant has been convicted for the offences under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the Additional City Sessions Judge, Court No. 15 in Sessions Case No. 92 of 1996 and has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1 lakh, in default of which, to undergo further imprisonment of one year.

( 3 ) THE appellant was caught while fleeing by the raiding party on 10th December 1995 when he was suspected of the offences under the Act on a secret information received by the police inspector. When asked as to whether he required that he be searched in presence of the Magistrate, the appellant refused the offer and was thereupon searched by the police inspector, during which contraband articles, namely, 139 packets of brown sugar (weighing 7. 5 gms.), were recovered and seized in presence of the panchas. He was charged for the offences under Section 21 and 22 of the said Act and also under Section 66 (1) (b) of the Bombay Prohibition Act and at the end of the trial, was convicted and sentenced for these offences.

( 4 ) WHEN the appeal was called out for hearing before the Division Bench, the Division Bench noticed that there were conflicting views expressed by two different Division Benches of this Court. In Ramanbhai Becharbhai Rami v. State of Gujarat, reported in 2002 (3) GLR 2100, on which reliance was placed on behalf of the appellant, the question put to him by the authorised officer was whether he wanted to be searched in his presence or in the presence of some superior officer and there was no offer made for search in presence of the magistrate. The Division Bench held that this amounted to a non-compliance of the mandatory provisions of section 50 of the Act and therefore, the accused was entitled to be acquitted. In Pirubhai Noorbhai Shaikh v. State of Gujarat, reported 2002 (3) GLR 2394, where the question asked by the officer was whether the accused wanted to be searched before a Magistrate, but option to be searched before a Gazetted Officer was not given, the Division Bench held that there was sufficient compliance with the provisions of Section 50 of the Act. That is how the matter poses the question as to whether the accused was entitled to be given an option to choose between Gazetted Officer and Magistrate while informing him about his right to be taken for search before a Gazetted Officer or a Magistrate under the provisions of Section 50 of the Act.

( 5 ) THE learned counsel for the appellant contended that, in view of the decision of the constitution bench of the Supreme Court in State of Punjab v. Baldev Singh, reported in AIR 1999 SC 2378, the authorised officer was required to inform the suspected person under the provisions of Section 50 of the Act, about his right to have a search made in presence of a Gazetted Officer or a Magistrate and in that process, he was required to give an option to the suspected person to choose either between a Magistrate or a Gazetted Officer. It was submitted that, in the present case, the authorised officer had informed the accused about his right to be searched before a Magistrate by asking him whether he would like to be taken for search to a Magistrate and there was no mention made of any Gazetted Officer. The accused refused the offer of being taken for search to a Magistrate, but if he were given an opti

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