Compliance with the provisions of S.50(1) of the NDPS Act is crucial, and failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

1. This appeal filed by the accused in Sessions case No. 100/90 of the Court of Sessions Kozhikode Division, is directed against the judgment and order of conviction and sentence under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'), and sentence of 10 years R.I. and a fine of Rs.1 lakh, which was confirmed in appeal by the High Court of Kerala with slight modification regarding the default sentence which was reduced from 2 years to 1 year R.I.

2. The charge against the appellant was that on 18.7.1990 at 6.05 P.M. he was found in possession of 1750 milligram of brown sugar at AKG Memorial over-bridge at Francis Road in Nagaram, in violation of the provisions of the NDPS Act and thereby committed an offence punishable under S.21 of the NDPS Act.

3. The case of the prosecution, shortly stated is that the Sub-inspector of Police, Chemmangad Police Station, having received information that the accused was selling brown sugar went along with two constables PW2 and CW2 to the scene of occurrence. On searching the accused nine small polythene bags containing brown sugar were found in his possession. The articles were seized. The articles were found on weighing as 1750 milligram. After completing the procedural paraphernalia a sample was sent for chemical analysis. The sample which was sent for chemical analysis was found to be diacetyl morphine (Heroin) commonly known as brown sugar.

4. The prosecution mainly relied on the evidence of Shri. T. Raman PW1, the police officer, who effected the search and seizure and other witnesses to establish the charge of illegal possession of brown sugar. The Courts below on appreciation of the evidence on record accepted the prosecution case and passed the order of conviction and sentence as noted earlier.

5. The main thrust of the arguments of Shri. Son-math Mukherjee, learned counsel for the appellant was that the Courts below erred in placing reliance on the recovery of the brown sugar from the appellant since the mandatory requirements prescribed under S.50 of the NDPS Act had not been followed by the police officer before making the search which led to the seizure of the articles.

6. The contention of Shri. K.M.K. Nair, learned counsel for the respondent on the other hand was that there was substantial compliance with the provisions of S.50 of the NDPS Act, inasmuch as the police officer (PW1) had asked the accused whether he would like to be produced before a Magistrate or a Gazetted Officer to which he replied in the negative.

7. The question that falls for determination is whether on the facts and in the circumstances of the case as revealed from the evidence on record the search of the person of the accused and the recovery of the packets of brown sugar from his possession was vitiated on account of non-compliance with the requirements of S.50 of the NDPS Act. From the discussions in the impugned judgments it appears that the contention did not find favour with the Courts.

8. Sub-s. (1) of S.50 which is the relevant provision in this regard reads thus:

"50. Conditions under which search of person shall be conducted- (1) When any officer duly authorised under S.42 is about to search any person under the provisions of S.41, S.42 or S.43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in S.42 or to the nearest Magistrate."

9. On a bare reading of the provision it is clear that the statute provides a reasonable safeguard to the accused before a search of his person is made by an officer authorised under S.42 to make it. The provision is also intended to avoid criticism of arbitrary and high handed action against authorised officers. The Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure keeping in view the severe punishment prescribed in the statute. Various questions relati