KOSHY, J.

This criminal appeal is referred to the Division Bench by Justice M. R. Hariharan Nair noticing divergent views taken by two learned single Judges of this Court in Mani v. State of Kerala, (Cri. A. 127/99) and Rasheed v. State of Kerala (1999) 3 Ker LT 133 : (1999 Cri LJ 4746). The only question to be resolved in this case is whether mandate of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') is satisfied if accused is informed of and offered his legal right to be searched in the presence of a Gazetted Officer without mentioning about the right to be searched before a Magistrate or vice versa as Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh, AIR 1999 SC 2378 : (1999 Cri LJ 3672) held that before conducting search of a person under Section 42 or 43 of the NDPS Act, empowered officer shall inform him that he has got a right to be searched in the presence of the nearest Magistrate or Gazetted Officer and failure to inform him about such right is violation of Section 50 of the NDPS Act ? We have to consider whether substantive compliance of requirements of Section 50 is enough in the absence of likelihood of prejudice to the accused in the procedure adopted in each case to answer the main question.

Before considering the question of law, we may look into the facts of the case. The case of the prosecution is that on 8-5-1996 at about 7.15 p.m. accused was found to be in possession of 2.950 gms. of brown sugar on the southern road side on the south west corner of Puthiyara Bridge in contravention of the provisions of the Act and thereby committed an offence punishable under Section 21 of the Act. PW 1, detecting officer, on getting information that accused was selling brown sugar near Puthiyara fish market, reached the spot alongwith other police constables after complying with the legal formalities. On seeing the policy party, the accused suddenly started moving towards south. A search was conducted by PW 1 and a plastic cover with brown sugar was found out from the pocket of the shirt of the accused. The brown sugar including the cover was found to be weighing 2.950 gms. Since accused was found to have possession of brown sugar against the provisions of Section 8(c) of the Act, he was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lakh and in default to undergo rigorous imprisonment for one more year under Section 21 of the NDPS Act.

The only contention raised before us is that the search was conducted violating the mandatory provisions in Section 50 of the NDPS Act. It is contended that the officer who conducted the search did not ask the accused whether he would like to be searched in the presence of a Magistrate and he was also not informed of such right. The judgment challenged in appeal proceeds on the basis that such a question was asked. The lower Court summarised the deposition of PW 1, detecting officer, in Paragraph 6 of the judgment wherein it is stated that he asked the accused whether he wanted to have the search in the presence of a Gazetted Officer or a Magistrate and he replied in the negative. On going through the deposition, we find that the above is not correct. It is not the case of the prosecution that the right of the accused to be searched either in the presence of a Gazetted Officer or a Magistrate was given to him in writing. But, it is the case of the detecting officer that he orally informed him about his right to be searched in the presence of a Gazetted Officer only. He has no case that his right to be searched in the presence of a Magistrate was conveyed to him. PW 1, during deposition, has stated as follows :

Ext. P1 is the seizure mahazar. There also, it is stated similarly that accused was informed of about his right to be searched in the presence of a Gazetted Officer. The word 'magistrate' is not mentioned in Ext. P1 seizure mahazar.