Non-compliance with the mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 relating to search and arrest renders the arrest and detention illegal.

LINGARAJA RATH, J.

( 1 ) BOTH these Criminal Miscellaneous Cases raise the same question of law as to whether non-compliance with the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') relating to search and arrest ipso facto entitles the accused to be enlarged on bail, and hence are disposed of by this common judgment.

( 2 ) THE facts traversed in Criminal Misc. Case No. 1052/91 are that the Officer-in-charge, Orkel Police Station in the district of Koraput, received a telephonic message on 17-7-1991 at about 11-30 a. m. of the petitioner selling opium and being in possession of the same. The message was entered by him in the station diary and he proceeded at 12-15 p. m. to the Orkel market with two other officers. At the market he found the accused-petitioner in the gorcery shop and upon search in presence of witnesses, recovered 10 grams of opium from his left side trouser pocket. The opium was seized in the presence of witnesses. The seizure list was prepared and since the petitioner could not produce relevant papers relating to the opium he was arrested. After due investigation chargesheet has been submitted on 28-7-1991. So far as Criminal Misc. Case No. 1227/91 is concerned, the facts are that while the Sub-Inspector of Excise, Deogarh was patrolling with his staff, he searched the petitioner at about 1-30 p. m. and recovered three polythene packets each containing 250 grams of Ganja kept inside a bag. The Ganja was seized and the petitioner was arrested. He moved for bail before the learned Sessions Judge, Sambalpur but it having been refused he has approached this Court.

( 3 ) THE submissions on behalf of the petitioners were mainly advanced by Mr. Misra. It is contended that as the petitioners were not produced before a gazetted officer or a magistrate the arrest was vitiated. The arrest is also vitiated because the mandatory provisions of Ss. 42, 43 and 44 were not observed. The very questions as at present were urged in Criminal Misc. Case No. 1190 of 1991 before a learned single Judge of this Court, Hon'ble Mr. Justice K. C. Jagadeb Roy, who on a detailed discussion of the law on the subject accepted the contentions as are advanced by the petitioner in the light of Art. 21 of the Constitution of India. But the questions have been elaborately agitated again before me by the learned Additional Standing Counsel on behalf of the State urging to take another look at the matter so as to persuade me to take a different view and refer the question to a larger Bench for decision and the attempt has also been strenuously resisted on behalf of the petitioners. Though after hearing the learned counsel, I have reached the same conclusions as Hon'ble Mr. Justice K. C. Jagadeb Roy, yet I have thought it better, in the circumstances, to record independently the reasons for the decision.

( 4 ) DEVELOPING the submissions, it is the submission of Mr. Misra that in view of requirement under S. 50 that before any search is made, the person to be searched, on his requisition, is to be afforded the opportunity to be searched before a gazetted officer or a magistrate, such provision read with S. 43 (b) would invariably mean as being mandatorily required of the officer wishing to conduct the search to inform the person to be searched of his right under S. 50 and if the person on his being informed of his right expresses his desire to be taken before a gazetted officer or a magistrate, it is the duty of the officer to act accordingly. On such premises he submits that if there is no contemporaneous record of the person to be searched of having been so informed of his right, there is an infraction of the provisions of S. 50 and that the search made under S. 43 (b) without complying with the provisions of S. 50 and the consequential arrest made thereunder are illegal actions having the necessary effect of making the arrest unlawful. This, according to him, entitles the person so ar