A. PASAYAT, J.

( 1 ) ON the accusation of having committed an offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act (in short Tthe Actt) appellant Gopal Reddy (hereinafter described as accused) faced trial. He was found guilty by learned First Additional Sessions Judge, Pun and sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs. 5,000/- with default sentence of six months.

( 2 ) BACKGROUND facts as stated by prosecution are as follows. On 25. 11. 1992 while S. I. of Excise, Balugaon (p. W. 4) was performing patrol duty along with other members of staff near Balugaon Bazar, he got a secret information about a person carrying Ganja. He proceeded to Bus Stand and ultimately noticed accused on the road to the west of the Bus Stand with a carton over his head. Accused was detained and 5 Kilograms of Ganja kept in the said carton were recovered. After drawing necessary sample, the carton box was sealed. Similarly, sample packet was sealed and accused was produced before learned Judicial Magistrate, First Class, Banpur, along with the seized articles. In presence of learned Judicial Magistrate, sample packet was sent to Chemical Examiner, State Drugs Control and Research Laboratory, Bhubaneswar, for necessary chemical test. Prosecution report was submitted against the accused. Accused pleaded innocence. He took a positive stand that he had no link with the alleged offence, and he has been falsely implicated. Placing reliance of evidence of four witnesses examined to further prosecution case, learned First Additional Sessions Judge, Pun, found accused guilty, convicted and sentenced him as aforesaid.

( 3 ) SOLE point urged by Mr. S. K. Misra, learned counsel for accused-appellant in support of appeal is that there was non-compliance of statutory requirements stipulated in Sec. 50 of the Act According to him, concerned officer was obliged to inform accused of his right to be taken to the nearest Gazetted Officer of any of the departments mentioned in Sec. 42, or to the nearest Magistrate. It is submitted with reference to evidence of Excise Sub inspector (P. W. 4) that accused was only asked whether he wanted to been before a Magistrate. That cannot be treated to be compliance of mandatory requirements set out in Sec. 50. Learned counsel for State, on the other hand, contended that the purpose of asking the option is to rule out false implication and malicious prosecution. Accused was given option of being taken before a Magistrate. He declined to do so. Therefore, he cannot make a grievance that there has been non-compliance with Sec. 50, without establishing any prejudice.

( 4 ) SINCE primal question is whether there was compliance of the requirements set out in Sec. 50 of the Act, a reference to the said provision which reads as under is necessary 5o Conditions under which search of persons shall be conducted: (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41. Sec. 42 or Sec. 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 Sec. 42 or to the nearest Magistrate. (2) If such a 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-sec. (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 any one excepting a female. As observed by the Apex Court in State of Punjab v. Balbir Singh and Others1, Sec. 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegation of planting or fabrication by prosecuting authorities. It mandates that if a-person to be searched so requires, the O