D. M. PATNAIK, J.

( 1 ) APPELLANT having been convicted under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N. D. P. S. Act) and sentenced to R. I. for ten years and fine of rupees one lakh, assails his conviction.

( 2 ) PROSECUTION case is, on 24. 10. 1989 about 5 p. m. , P. W. 5 then S. I. of Excise with his other staff was on mobile duty in Pun Lown for detection of offences under the N. D. P. S. Act. On receiving reliable information that the appellant was illegally trafficking in narcotic substances, P. W. 5 and others reached near the house of the appellant in Daitapara Sahi and found the appellant on the road in front of his house. He was detained and on his personal search there was recovery 0. 050 milligrams of narcotic substance kept in two paper packets, each weighing 0. 025 milligrams. It is the case or the prosecution that before the search the appellant was asked of his option for being searched in presence of a Gazetted of ricer and oil his agreeing, he was searched in presence of P. W. 4, a member or the raiding party. On recovery of this quantity of brown sugar the same was scaled in presence of the appellant. He was produced before the S. D. J. M. , Pun on 25. 10. 1989. The appellant denied the indictment.

( 3 ) MR. P. K. Dhal, learned counsel for the appellant, strenuously urges referring to various mandatory provisions of the Act including sections 42, 43 and 50 to 54 that the trial court committed gross error in not taking into account the various lapses and infirmities in the prosecution case with regard to non-compliance of the mandatory provisions which vitiated the entire proceeding. Mr. S. Das, learned Additional Standing Counsel for the State, on the other hand supported the judgment of conviction.

( 4 ) THE main thrust of argument of Mr. Dhal is, firstly with regard to the non-compliance of the provisions of section 50 of the Act which requires the arresting authority to ask the accused for his option to be searched either in presence of a Gazetted Officer or in presence of a Magistrate. The learned counsel submits that the trial court committed an error in holding that the search of the appellant before P. W. 4 who was a member of the raiding party was in due compliance of the provisions of section 50. The learned counsel has taken me to the evidence of P. Ws. 4 and 5 which shows that P. W. 5 asked the appellant whether he wanted to be searched before a Gazetted Officer and that he was subjected to search before P. W. 4. Predicating an option for an accused to be searched either before a Gazetted Officer or a Magistrate the legislative intent is apparent that it wanted to safe guard the liberty of an accused against false criminal charge. Needless to point out that in such circumstances the provisions should be strictly followed. In this regard Mr. Dhal refers to a decision reported in In re B. Ramannamma1. It has been held in the said case that: A member of the raiding party even he himself may be a Gazetted Officer or a superior officer of the department cannot himself perform the dual tasks of being a party to the search and arriving at a satisfaction that the search is warranted or not as required by section 50. In another decision referred to by Mr. Dhal in Babu Rao v. State of Karnalaka, it has been held that the fact that one of the officers was a Gazetted Officer would not amount to the compliance of requirement of section 50 of the Act. It has further been held that a mere presence of a Gazetted Officer did not validate the search in view of the mandatory provisions contained in section 50.

( 5 ) GOING through the two decisions, there is no room for any doubt that it would be improper on the part of the arresting authority to get the accused searched in presence of any member of the raiding party even if he happens to be a Gazetted Officer. In the present case, P. W. 5 asking option of the appellant to be searched ill presence of P.