The court clarified the mandatory nature of S.50 in the case of seizure under S.43 of the Act and interpreted the requirements of S.55 regarding the affixing of seals on seized articles and samples.

The accused in S.C.No.133 of 1991 before the Sessions Court, Kozhikode is the appellant. Therein he was found guilty of qic offence under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the act), convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for another period of one year.

2. The prosecution case is that the Sub Inspector of Kozhikode City Detective Crime Record Bureau found the accused near the bus stop of Pottammal possessing 3.500 gins, of brown sugar in a packet kept inside a Wills cigarette packet kept in the girdle knot of his mind. The Sub Inspector had received information at about 7.40 p.m. on 31-10-1990 that brown sugar was being sold near the bus stop. In pursuance to that information, the Sub Inspector went to the spot and saw the accused standing near the bus stop. The article was seized, sample taken, a mahazar prepared and the accused arrested and taken to Medical College Police Station. The contraband article and the accused were entrusted to the Station House Officer as per a report. Crime was registered under S.17 of the Act. On the next day, the Circle Inspector of Medical College Police Station took charge of the investigation and accused was produced before the Magistrate, Kunnamangalam with a remand report. The contraband article was also forwarded to the court with a forwarding note. The Magistrate committed the case to the Court of Sessions, Kozhikode.

3. The accused pleaded not guilty to the charge. Eight witnesses were examined on the side of the prosecution and Exts. P1 to P9 and MOs.1 to 3 were marked. The Sessions Court after hear ng both sides and on a consideration of the evidence found the accused guilty, convicted him and awarded the sentence referred above. Hence the appeal.

4. Heard counsel for appellant and Public Prosecutor.

5. The conviction and sentence arc assailed by the appellant on various grounds. Non-compliance of the mandatory provisions contained in Ss.42 and 50of the Act is one of the grounds on which the judgment is assailed. The question of compliance of S.42 does not arise since the seizure was from a public place in which case the seizure is one under S.43 of the Act. That Section docs not contemplate recording of any information received by the police officer or sending of a copy thereof to the immediate official superior. Sec.43 enables any officer of any of the departments mentioned i n S.42 to seize any article i f he has reason to believe that an offence punishable under Chap. I V has been committed, The deleting officer, P.W.1 has spoken about information received by him about sale of narcotic drug from near the bus slop at Pottammal. On getting that information, he proceeded to the spot, seized the article from the possession of the accused, arrested him and look him to Medical College Police Station. The question of compliance of the mandatory provision contained in S.42 regarding recording of information does not therefore arise.

6. It has to be seen whether the police officer complied with the provisions contained in S.50 of the Act, Considerable reliance was placed on the decision of the Supreme Court in State of Punjab v. Balbir Singh (AIR 1994 SC 1872) in support of the contention mat S.50 of the Act is mandatory and it is obligatory on the part of the officer to inform the person to be searched about his right under S.50 to be produced before a Gazetted Officer or a Magistrate and failure to inform the person and failure to lake him to the Gazetted Officer or Magistrate if such person so required, would amount to non-compliance of S.50 which is mandatory. The Supreme Court in sub-para. (5) of para.26 of the judgment has made these observations in connection with the search of a person by an authorised officer or an empowered officer while acting under S.41(2) or S.42 of the Act. The Supreme