The provisions of Sections 42 and 50 of the NDPS Act are mandatory and their violation must be presumed to have caused prejudice to the accused. The accused have a right to be informed of their right to be searched before a gazetted officer or a Magistrate.

( 1 ) IN these two bail applications in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N. D. P. S. Act) similar questions of fact and law arise, and as such, they are being disposed of by this common order.

( 2 ) IN Crl. Misc. Case No. 14475 of 1991 (Crime No. 249 of 1991 under S. 20-B of the Narcotic Drugs and Psychotropic Substances Act, P. S. Baberu, District - Banda) applicant Sewaram was arrested on 26-8-1991 for the alleged offence under S. 20 (b) of the N. D. P. S. Act for allegedly being in possession of one Kilogram ganja and two and a half Tolas opium for the purposes of selling. It is alleged that, while on patrol duty, Sub-Inspector Harish Chandra Tripathi, S. O. got the information from an informer that the applicant was selling Ganja and opium in front of the Government Opium Shop. The S. O. , accompanied with the public witnesses Ram Chandra Gupta and Shiv Mangal Chaubey, searched the applicant and found the aforesaid Ganja and opium from a plastic bag, as also some money in another bag. This was sealed at the spot and recovery memo was prepared. A copy of the memo was given to the applicant but allegedly he tore it of.

( 3 ) IN Crl. Misc. Case No. 14120 of 1992 (Crime No. 273 of 1991 under S. 20 (b) Narcotic Drugs and Psychotropic Substances Act, 1985 P. S. Baberu, Distt. Banda) the applicant was arrested on 10-9-1991 for an offence under S. 20 (b) of the N. D. P. S. Act and about four kilograms Ganja in pudia and one kilogram opium was recovered from a gunny bag in his possession. It is said that, while on patrol duty, S. I. Harish Chandra Tripathi got the information from an informer that the applicant was selling Ganja and opium in the Government Opium shop, He, accompanied by the public witness Jagdish, searched the applicant and recovered the aforesaid Ganja and opium from a bag. The recovery memo was prepared at the sport and a copy thereof was given to the applicant, but he allegedly tore it of.

( 4 ) IN both the cases, bail applications were moved before the learned Sessions Judge, Banda but he rejected the same vide his orders dated 8-1-91 and 16-9-91 on the ground that, considering the quantity of Ganja and opium recovered and having regard to the provisions of S. 37 of the N. D. P. S. Act, these were not fit cases for granting bail. Pleas regarding violation of Ss. 42 and 50 of the N. D. P. S. Act were raised before him, but he rejected the submissions in regard thereto with the observation that it is a matter of evidence to be looked into at the stage of trial.

( 5 ) THE learned counsel for the applicants, Sri Rathore, has canvassed the same grounds before this Court as were canvassed before the learned Sessions Judge. He has submitted that provisions of Ss. 42 and 50 of N. D. P. S. Act are mandatory and violations thereof must be presumed to have caused prejudice to the applicants. It is urged that the information received by S. I. H. C. Tripathi was not reduced in writing as is required under S. 42 N. D. P. S. Act, nor the applicants were given any opportunity of getting themselves searched before a gazetted officer or a Magistrate as is provided under S. 50 of N. D. P. S. Act. It is submitted by him that the learned Sessions Judge should have considered these pleas on merit and consideration thereof could not have been postponed until the trial. It is also contended by the learned counsel that, if these two provisions are interpreted to mean that these mandatory requirements could be circumvented by the police officers or the other authorities that would be violation of the mandate under Article 21 of the Constitution.

( 6 ) IT is difficult to accept the view of the learned Sessions Judge (Special Judge) that the matters regarding the alleged violation of Ss. 42 and 50 of the N. D. P. S. Act or the other procedural safeguards, contained in Chapter IV of the Act, could not be looked into at the stage of bail and that could be consid