Non-compliance with the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which require the officer conducting the search to inform the person to be searched of their right to be searched in the presence of a Gazetted Officer or a Magistrate, vitiates the trial.

JUDGMENT :

Dipak Misra, J. - The appellant has been convicted under Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ('the Act') for being in possession four packets of heroin in violation of the provisions of the Act and has been sentenced to undergo R. I. for ten years and to pay a fine of rupees one lakh, in? default to undergo further. R. I. for two years.

2. The prosecution case, in brief, Is that on 30th July, 1930 the Sub-Inspector of Police, Town Police Station, Puri (PW 6) having received secret information about the illegal sale of heroin near the southern gate of temple of Lord Jagannath, proceeded in a jeep along with his staff and after a short chase, brought the accused under control. The appellant, as alleged made efforts to put the four packets in his mouth but he failed in his attempt and the police personnel seized four packets. Finding the seized articles to be heroin, the same was weighed and a seizure-list was prepared in presence of witnesses and appellant was forwarded to the Court along with the cash of Rs. 97/-which was also recovered from his custody. The seized article was sent for chemical examination. After completing all other formalities, charge sheet was failed in Court.

3. The plea of accused-appellant was one of complete denial.

4. To bring home the charges, the prosecution examined six witnessas and number of documents were brought on record as exhibits. The defence chose not to adduce any evidence.

5. The learned trial Judge on consideration of the oral and documentary evidence on record, convicted the appellant as indicated above.

6. Sri Manoranjan Acharya the learned counsel attacked the judgment on two grounds, namely, there has been non-compliance of the provisions enjoined under Sec. 50 of the Act and the said provision being mandatory, such non-compliance vitiated the trial and further, there has been delay in sending the seized articles for chemical examination and the prosecution has failed to explain the safe custody of the articles between the date of seizure and the date of despatch for chemical examination. Such non-explanation, as submitted by Sri Acharya gives rise to suspicion entitling the accused to the benefit of doubt.

7. Sri Sangram Das, the learned Additional Standing Counsel in his turn supports the judgment of the Court below. Submission of Sri Das is, Section 50 of the Act is not attracted in the present case, inasmuch as no proper foundation has been laid down by the appellant during cross-examination. He has also emphatically urged that mere delay in sending the seized articles for chemical examination would not enure to the benefit of the accused as the teal controversy which calls for adjudication is with regard to safe custody and the prosecution has successfully established that the seized article was In safe custody during the interregnum period.

8. Admittedly, the provision of Section 50 of the Act is attracted to the case of the present nature as PW 6, the Sub-Inspector of Police, had categorically stated that he had received secret information about illegal sale of heroin near the southern gate of the temple. Fact of prior information having been admitted there is no iota of doubt, the provision of Section 50 is attracted. The question that falls for consideration is whether there has been any foundation by suggestion in the cross-examination. Needless to say, the burden is on the prosecution to establish that Section 50 has been complied with. However, dealing with the contention of Sri Das, 1 notice that in paragraph 14 of the cross-examination of PW 6, the Sub-Inspector has stated that he has not mentioned in the case diary that the accused was asked to exercise his option to be searched in presence of a Gazetted Officer or a Magistrate. In his evidence, he has not stated anywhere that he has apprised the accused with regard to his right of being examined either before a Gazetted Officer or a Magistrate. In absence o