Failure to comply with the mandatory provisions of Section 50 of the NDPS Act, which requires the arresting officer to inform the person to be searched of their right to be searched before a Gazetted Officer or a Magistrate, renders the search illegal and any conviction based on the alleged recovery from the accused cannot be sustained.

( 1 ) THIS is an appeal against the judgment and order dated 22/12/1994 passed by Sri N. L. Agrawal, the then I Additional Sessions Judge, Banda in Special Case No. 22 of 1994, State v. Shri Ram, Police Station Atarra, Dist. Banda whereby he convicted the accused-appellant Shri Ram of the offence under S. 21/22, N. D. P. S. Act and sentenced him to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs. 1,00,000. 00 and in default of payment of fine, to suffer further rigorous imprisonment for two and half years as part of his substantive sentence.

( 2 ) THE prosecution case, in brief, was that on 18-3-1994, S. I. Vijai Kumar Arya, In-charge of Out Post G. R. P. , Karvi (PW2), along with Constable Sant Ram (P. W. 1) and other constables, was on train checking and crime prevention duty at Railway Station, Karvi and they were present on platform No. 1, that on the platform Vijai Kumar Arya S. I. received an information that one person was sitting on a bench possessing narcotic drugs near water tank towards west of canteen on the platform, that on this information, the police party came near the canteen at the railway station; that the informer pointed out towards that person sitting on a bench alone; that the police party took personal search of each other and then came near the water-tank in the west of the canteen; that on seeing the police party, that person got up and started moving towards the west whereupon the police party surrounded and arrested him on the spot at a distance of 20 paces from there on the said platform (platform No. 1); that it was 4. 15 P. M. ; that the person arrested was the accused-appellant Shri Ram. The prosecution case further was that Vijai Kumar Arya S. I. told the accused-appellant to get himself searched before a Gazetted Officer whereupon he (accused-appellant) said that he has full confidence in him; that thereupon Vijai Kumar S. I. took a search of his body and found a strip of 8 tablets seripax wrapped in white paper from the left pocket of his shirt and a packet of biscuits bearing Parle g brand name which was found having some slightly pink and yellow intoxicating substance glued on it, that he demanded the licence from the accused-appellant for keeping this but he did not produce any, that he prepared the recovery memo of the recovered materials and then went to the police station and lodged the accused-appellant in the lock-up of the police station and a case was registered.

( 3 ) THE recovered material was sent to the Forensic Science Laboratory, Agra for chemical examination. The Joint Director of Laboratory found that these articles contained Oxizeepam. Consequently a charge-sheet was submitted.

( 4 ) AT the trial, the prosecution examined Sant Ram Constable (P. W. 1), Vijai Kumar Arya, then the S. I. (now Dy. S. P.) as P. W. 2. The necessary link evidence was placed on record and the Investigating Officer was also examined. The accused made the denial of the recovery. The learned Additional Sessions Judge believed the prosecution story and consequently convicted and sentence the accused-appellant as aforesaid.

( 5 ) HEARD counsel for the parties.

( 6 ) BEFORE this Court, apart from challenging the finding of the learned Additional Sessions Judge on merits, the learned counsel for the accused-appellant argued that there was violation of the mandatory provision of Section 50 of the N. D. P. S. Act and consequently the alleged recovery of the contraband articles aforesaid cannot be used to sustain the conviction of the accused-appellant. The learned A. G. A. , on the other hand, laid great emphasis on the ocular evidence against the accused-appellant by pointing out that the police officer and the raiding party had absolutely no enmity against the accused-appellant; that the prosecution evidence was consistent throughout; that while in the cross-examination of Constable Sant Ram (P. W. 1), the defence claim was that the accused-appellant wa