( 1 ) THIS appeal has been preferred by the accused who has been convicted and sentenced u/s 8/18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N. D. P. S. Act) to a term of 10 years R. I. and a fine of Rs. 1 lac or in default of payment of fine 6 months R. I.

( 2 ) SHORTLY narrated the facts are that P. W. 5, Narendra Mohan Singh Chandel, received information on 21-4-1990 at 4-16 P. M. that a person was coming to Guna by 189 Up Kotah-Damoh train. He made an entry, vide ex. P-6, went to the Railway Station. He informed constable Dikshit and Ramshankar about the information received from the informant. He asked Ashok Dube to call Laxminarayan and Liyakat Ali. When the train reached plot form no. 1 he saw that from Coach no. 28281 a person came down who had wrapped himself from a bed sheet. He made enquiry and enquired as to whether he wanted to give search to him or some officer be call whereupon he agreed to give search. Search was taken and Panchnama Ex. P-4 was prepared which was got signed by him as well as by witnesses. Opium was recovered from him which was got weighed and Panchnama Ex. P-2 was prepared. He also prepared two sample packets of 50 gm. each. The remaining opium was kept in separate plastic bags and the cloth was sealed. On reaching the police station he made an entry at 5. 15 P. M. , Ex. P-7. The recovered article was deposited in the Malkhana. He gave intimation to the Judicial Magistrate Guna and sent the sample for chemical examination. After receipt of report charge-sheet was submitted. The accused was tried u/s 8/18 of the N. D. P. S. Act. After taking necessary evidence and hearing parties and considering the material on record the learned trial Court convicted and sentenced the accused as aforesaid. Hence this appeal.

( 3 ) LEARNED Counsel for the appellant contended that there is no compliance of s. 50 of the N. D. P. s. Act which is mandatory. His contention is that s. 50 makes a provision as to how search has to be taken. The Apex Court in State of Punjab v. Balbir Singh, held that the provisions are mandatory and their non-compliance affects the prosecution case and vitiates the trial. According to the case of the prosecution itself there is nothing on record to show that it was enquired from the accused appellant as to whether he desired to be searched before a Magistrate. The evidence adduced is to the affect that enquiry was made whether he wanted to be searched by a gazetted officer. There is nothing to show as to whether it was also enquired whether he wanted to be searched by a Magistrate. He placed reliance upon (Gopal Reddy v. State) Thus the trial is vitiated.

( 4 ) ON the other hand, the learned Counsel for the State Contended that there is sufficient compliance of s. 50 inasmuch as the evidence on record clearly goes to show that at the time of search enquiry was made as to whether he required to be searched by a gazetted officer and a Magistrate includes a gazetted officer. ( 5 ) THE only point to be determined is as to whether there has been a compliance of 5. 50 of the N. D. P. S. Act or not. According to the learned Counsel for the appellant the evidence on record clearly shows that the officer, who conducted search; made enquiry with respect to gazetted officer only. There is nothing on record to show that the appellant was also put a question as to whether he desired to be searched before a Magistrate or not. It is also an essential ingredient as held in the case of State of Punjab v. Balbir Singh. (supra) Nothing has been argued by the learned Counsel on merits.

( 6 ) THE provisions of s. 50 have been interpreted by the Apex Court in the aforesaid authority i. e. State of Punjab v. Balbirsingh and it has been held that: Section 50 confers a valuable tight on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and cre