Non-compliance with the mandatory provisions of Section 50 of the NDPS Act, which confers the right on the person to be searched in the presence of a Gazetted Officer or Magistrate if required, would vitiate the trial.

1. - The appellant seeks to quash the judgment dated August 20, 2002 of the learned Special Judge NDPS Cases Chittorgarh rendered in Sessions Case No. 51/2001, whereby the appellant was convicted and sentenced under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') to undergo rigorous imprisonment for ten years and fine of Rs. one lack, in default to further undergo imprisonment for one year.

2. In brief the facts of the case are that the SHO Police Station Chanderia on receiving secret information on July 9, 2001 regarding transit of opium by the appellant on the High-way towards Medikheda reached at the spot with the police party and Motbirs. Around 6.30 PM a person was seen coming towards Ajolia ka Kheda. The person was identified as the appellant by Shyam Lal Constable. On being searched opium weighing 3 kg. and 500 gms. was found tying to the abdomen of the appellant. Necessary memos of against the judgment dated 20.8.2002 of Shri Radhey Mohan Srivastava, Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 51/2001. recovery, arrest etc. were drawn and after usual investigation charge sheet was filed. Charge under Section 8/18 NDPS Act was framed against the appellant who denied the charge and claimed trial. The prosecution in support of its case examined as many as eleven witnesses. The appellant in his explanation under Section 313 Cr.P.C. claimed innocence, but did not choose to lead any evidence. The learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.

3. It is contended by learned counsel for the appellant that the officer who conducted search failed to comply with the mandatory provisions of Section 50 of the NDPS Act. The evidence produced by prosecution in this regard is highly contradictory. Gopal Singh Constable (PW.2) in his deposition stated that the option which was given to the appellant was as to whether he wanted to be searched by the police party or superior officer and thereafter search was taken. On the other hand Sumer Singh (PW.3) deposed that before the search of the appellant by seizure officer Himmat Singh, the appellant was given option to be searched before the Magistrate, Gazetted Officer or Seizure Officer. Himmat Singh (PW.10) also corroborated the statement of Sumer Singh, whereas Gopal (PW.8) and Shakeel Mohd. (PW.1) did not say as to whether the option was given to the appellant or not.

4. Per contra, learned Public Prosecutor supported the impugned judgment and urged that provisions of Section 50 of the NDPS Act have been complied with in letter and spirit.

5. I have pondered over the rival submissions and scanned the material on record.

6. Before adverting to the arguments of the learned counsel, I deem it appropriate to have a close look at Section 50 of the NDPS Act, which reads as under:

"S.50. Condition under which search of person shall be conducted, -

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 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 section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub- section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possessio