M.R. Hariharan Nair, J.

The novel question that arises for consideration in this case is the scope and ambit of S.50(4) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short'the Act'). If the offender is of the fairer sex, should the search too be conducted by a female officer, who is herself competent to make search under S.42 of the Act? If not, should the search be supervised or over seen by the authorised male officer? Should the search be done in strict privacy? In that case, should the Gazetted Officer or the Magistrate, whose presence might be demanded and secured, should also be a female officer? These are the various aspects that mainly fall for consideration in the present case.

2. The appellant-amina, according to the prosecution, was found in possession of 45 grams of ganja made into 22 small packets and concealed inside M.O.1 polythene bag kept at her waist underneath the sari and skirt worn by her when her body was examined by PW.t-Excise Inspector at about S.30 a.m. on 10.12.1997 while she was at her residence. The prosecution evidence was accepted by the learned 1st Additional

Special Judge for trial of NDPS Act Cases, Ernakulam, and it is the conviction so entered and the sentence of rigorous imprisonment for 2 years and fine of Rs. 20,000/-imposed therefor that are the subject matter of the present case.

3. Sri. T.G. Rajendran, who argued the case of the appellant, submitted that the conviction is unsustainable firstly because the search made in the case is violative of S.50(4) of the Act and also in violation of all sense of propriety and decency. It is also argued that there is violation of the provisions of S.42(2) of the Act which entitles the accused to get an acquittal.

4. On the arguments advanced in the case the points that arise for decision are:

(1) Whether there is violation of S.50(4) of the Act in the search and seizure and if so, its impact?

(2) Whether there is violation of S.42(2) of the Act and if so, whether such violation justifies acquittal of the accused?

(3) Reliefs?

5. Point No. 1: The substance of the evidence of PW.t, who was the Excise Inspector of the Enforcement and Anti Narcotic Special Squad, Ernakulam as on 10.12.1997 is that in the course of patrol done early in the morning and while his party reached near the Edappally Junction, a person, who did not want to disclose his identity, gave information that the accused in this case residing at Kandangakulam House in Kandangakulam Colony near the railway gate, Edapally, was selling ganga and that after recording the said information and sending search memo to the Magistrate's Court concerned through an Excise Guard by name James, he sent another Excise Guard by name Thomas Paul to the Woman Police Station, Ernakulam, with request for sending a woman Police Constable and that after CW.3 - Rajam, a woman Police Constable arrived at the spot in an autorikshaw, the party proceeded to the house of the accused, found her there as the sole occupant and questioned her. After disclosing the identity of PW1 and also about the availability of the woman Police Constable, she was informed of the proposal to search her house. The search so conducted did not yield any positive result. The accused was therefore informed of her rights under S.50 of the Act and asked whether she required the presence of a Gazetted Officer or a Magistrate for the proposed personal search. The accused answered that she required the presence of a Gazetted Officer and accordingly, an Excise Guard by name Rajan was sent over to fetch the nearest available Gazetted Officer. Accordingly, PW.2, who is the Circle Inspector of Excise, Enforcement and Anti Narcotic Special Squad was brought. In the presence of PW2 as also two other independent witnesses (PWs. 3 and 4), the woman Police Constable searched the body of the accused and ganja, covered in the yellow plastic cover was found concealed at her waist underneath the skirt worn by her. Currency notes wor