Non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 entitles the accused to bail.

B. K. DASH, J.

( 1 ) THE petitioner, accused of an offence punishable under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') for his allegedly being in possession of Ganja weighing 650 grams, has approached this Court under Section 439, Cr. P. C. for his release, his application having been rejected by the Special Judge, Bhawanipatna.

( 2 ) MR. D. K. Misra, learned counsel for the petitioner perfervidly advanced his argument that there being partial and not full compliance of Section 50 of the Act, the petitioner as of right is entitled to be released on bail. In support of his submission he relied upon certain decisions of this Court, viz. , Rabi Sahoo v. State, (1994) 7 Ori CR 460, Fakir Sundari v. State of Orissa, (1995) 8 Ori CR 320, and Narahari Das v. State, (1995) 9 Ori CR 121.

( 3 ) IT has been authoritatively held by the Hon'ble Supreme Court in State of Punjab v. Balbir Singh, (1994) 6 Ori CR (SC) 283 : AIR 1994 SC 108 (sic.) that Section 50 of the Act is mandatory and non-compliance thereof vitiates the trial. As has been observed, it is imperative on the part of the officer to inform the person to be searched of his right that if he requires to be searched before a Gazetted Officer or a Magistrate. This is a valuable right given to the person to be searched in presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing important safeguard to the accused. There being no dispute about the legal proposition as has been ruled by the Apex Court as to the consequence of non-observance of the mandate prescribed by Section 50 of the Act, the question arises whether the Court while considering the prayer for bail can look into the relevant records to find if there has been compliance or otherwise of the aforesaid provision.

( 4 ) ARTICLE 21 of the constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. This being the constitutional mandate, the Courts have held that a provision which curtails personal liberty should be strictly construed in favour of the subject and the safeguard providing protection to a citizen's liberty must be liberally interpreted and applied. (See Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334 : (1964 (1) Cri LJ 257) ). In K. L. Subhayya v. State of Karnataka, AIR 1979 SC 711 : (1979 Cri LJ 651) the Hon'ble Supreme Court held that where the valuable safeguards providing for the liberty of the citizen to protect him against the ill-founded or frivolous prosecution or harassment were not complied with, the search was held to be one without jurisdiction and as a logical corollary thereof the conviction held to have been vitiated. The same principle has been reiterated in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, where the Court observed :"it is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of right conferred by Art. 21 must be fair, just and reasonable. Just as a mala fide act has no existence in the eye of law, even so unreasonableness vitiates law and procedure alike. It is, therefore, essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and fair play. . . . . . . . "

( 5 ) STRICT compliance of procedural safeguards is intended to protect a person against false and frivolous accusation. Once one is trapped in a case, particularly under the Act, he is incarcerated behind the prison bar for several years and as our experience shows, trial of a case in the present criminal justice system takes couple of years. Therefore, the Court must he vigilant to protect the liberty of a person accused of criminal charge even at the stage of consideration of bail.

( 6 ) IN Rabi Sahoo, (1994)