The provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are mandatory and must be strictly complied with. It is the duty of the police officer making the search to inform the person so arrested about his right to be searched before a designated Gazetted Officer or a Magistrate.

K. C. BHARGAVA, J.

This bail application moved by Dashrath Lal raises certain questions at the stage of bail. Heard learned counsel for the applicant as well as learned Additional Government Advocate.

2. The first contention of the learned counsel for the applicant is that compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the Act) with respect to the recovery has not been made. Secondly, it is argued that the weight of the articles recovered has not been written in the recovery memo and lastly that no independent public witness was taken at the time of recovery.

3. Taking the first point it has been argued by the learned counsel for the applicant that the provisions of Section 50 of the Act are mandatory in nature and they have to be followed and non-observance of these provisions can be a ground for bail. It cannot be denied at this stage that the fact which raises a question about the validity of the search can be locked into at the stage of bail and bail can be granted to a person is mandatory provisions of law have not been complied with. It cannot be said that if madatory provisions of law have not been complied with then bail cannot been denied. Therefore keeping in view the above question I go through the grounds which have been taken by the learned counsel for the applicant for grant of bail. In the present case a recovery memo was prepared on 7-6- 1992. The Station Officer received information it in the informant that the one person is standing along- with the stack of posta stored on a bicycle. The Station Officer went there and saw a person standing in front of the house of Nokhey Baniya. He wanted to run away but was apprehended and disclosed his name as Dashrath Lal, the applicant in the present case. Thereafter the search was taken. Sec tion 50 (1) of the Act is relevant in the present case. For the sake of convenience this sub-section is reported below:

"50. Conditions under which search, of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. "

4. A bare perusal of this section will go to show that if a search is taken under the provisions of Sections 41, 42 or 43 of the Act and if the person searched so require then he shall be taken without necessary delay to the nearest Gazetted Officer of any department mentioned in Section 42 or to the nearest Magistrate. Thus certain conditions have been imposed on the officer who is making search under Section 41, 42 or 43 of the Act to make search in the presence of the Gazetted Offier so designated or before the nearest Magistrate. The object of taking search before the Gazetted Officer or Magistrate is that the police may not get a free hand to irrplicate any person under this Act at their own sweet-will. Therefore this provision which is mandatory in nature should be complied with strictly because stringent condi tions have been imposed under this Act if a person is found guilty of an offence punishable under this Act. Minimum sentence and fine have been provided under this Act. Therefore in order to safeguard the interest of the accused the provisions of search before the Gazetted Officer or the Magistrate have been incorporated by the legislature and the intention of the legislature is clear from the reading of this section.

5. Learned counsel for the applicant has argued that the words "if such person so requires" will mean that the Police Officer making search has to inform the person who was arrested that he can demand as of right that this search can be taken before a designated Gazetted Officer or a Magistrate. On the other hand learned Additional Government Advocate has argued that the words do

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