The provisions of Sec. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are mandatory and cannot be waived merely on the statement of a police officer.

S. D. Bajaj, J.

1. In the course of nakabandi operation in village Shah Bukkar, Tehsil Zira, District Ferozepur of Punjab State, on April 23, 1986, around, 2.55 p. m. Head Constable Balbir Singh recovered from accused Nishan Singh on his personal search out of jhola carried by the accused in his right hand 10.500 kilograms of opium wrapped in glazed paper. On being prosecuted for it under sec. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, the accused pleaded not guiltyt thereto and claimed to be tried. Vide its impugned judgment dated 4th May, 1988 the learned trial-court acquitted the accused. Feeling aggrieved from the judgment aforesaid the State of Punjab filed Criminal Appeal No.659-DBA of 1988 in this Court.

2. This appeal against the acquittal was dismissed by us on January 8, 1992. Learned brother S. S. Rathor, J. , (as His Lord ship then was) who was to dictate the judgment has since breathed his last after prolonged sickness. My Lord Honble the Chief Justice has vide orders dated July 26, 1992, desired the undersigned lind Judge sitting in DB with brother S. S. Rathor, to record reasons for affirming findings of acquittal recorded by the learned trial-court. Hence this judgment.

3. Shri Randhir Singh AAG, Punjab, appeared for the States appellant and Shri K. S. Brar, Advocate, for the respondent accused. The relevant material on record was carefully examined by us on the date of hearing of the appeal.

4. Relevant sec. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, reads:

So 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 department mentioned in Sec.42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1 ). (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 anyone excepting a female.

5 Interpreting in Hakam Singh V/s. Union Territory, Chandigarh, 1988 (2) Chandigarh Law Reporter 75, State of Himachal Pradesh V/s. Sudarshan Kumar Kala, 1989 (1) Chandigarh Law Reporter 240, and Amrit Singh V/s. State of Haryana, Criminal Appear No.513-DB of 1987 decided on September 27, 1989, their Lordships observed the most glaring and serious flaw, however, in the prosecution case, is with regard to the manner of the search of the Appellant-Amrit Singh, in the context of the provision of Sec.50 of the Act. A reading thereof would show that if any person to be searched so requires, he has to be taken to a Gazetted Officer or to the nearest Magistrate and then searched in his presence. According to both the P. W.1 Sub Inspector Narpat Singh and P. W.2 Sub Inspector Joginder Singh, such option was given to the appellant, but was declined by him. In other words, this safeguard provided by sec. 50 of the Act is said to have been waived by the appellant and all we have to prove this is the word of two police officers. The provisions of Sec.50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, Chandigarh.1988 (2) Chandigarh Law Reporter 75. Reference may here also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh y. Sudarshan Kumar.1989 (1) Chandigarh Law Reporter 240, where, it was held that the person about to be searched must be informed of his right under sec. 50 of the Act. to be searched is the presence o