The provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are mandatory and the prosecution must prove that the mandatory provisions were complied with.

R.S. Garg, J.

1. The appellant being aggrieved by the judgment dated 23-3-99 passed in Special Case (Narcotics) No. 61/98 by the Special Judge, Narcotics, Jagdalpur convicting the appellant under Section 20B of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), sentencing the appellant to undergo three years and six months R.I. and pay fine of Rs. 5,000/-, has filed this appeal.

2. The prosecution case in brief is that on 15-10-98 Station House Officer Satish Dwivedi of Police Station Nagarnar received an information that somebody was coming from Borgaon side with contraband Ganja. After recording the information and sending a copy of it to the senior officers, the said police officer proceeded towards the spot. The accused was seen coming on a bicycle; he was carrying two plastic bags filled with certain things. Said Satish Dwivedi as he says gave a notice under Section 50 of the Act; apprised the accused of his statutory right and after seeking no-objection from the accused, searched the accused. In the search, 17 kg. and 18 kg. Ganja was found in the said two bags. 100 grams sample was drawn from each bag and thereafter the samples and the remaining Ganja was separately sealed. After bringing the accused to the police station, the first information report was recorded on basis of Dehati Nalish recorded on the spot. Samples were sent for analytical examination to the Forensic Science Laboratory which were found to be contraband Ganja according to the laboratory report. After completing the investigation, the police filed challan against the accused. The Trial Court after recording the evidence and hearing the parties, convicted and sentenced the accused as referred to above.

3. Shri Sharma, learned counsel for appellant submits that present is a case where the prosecution has failed to comply with the mandatory provisions of Section 50 of the Act, therefore, the accused is entitled to be acquitted.

4. Shri D.S. Thakur, learned counsel for State submits that as Section 50 is applicable to a body search only and in the present case body search was not taken, Section 50 was not applicable. He submits that in the present case notice under Section 50 was given to the accused, therefore, no argument can be developed on foundation of non-submission of the notice under Section 50 of the Act.

5. Shri Sanjay Sharma, learned counsel for the appellant taking exception to the arguments of Shri Thakur submits that catena of the authorities including the judgment of the Supreme Court in the matter of Ali Mustafa v. State of Kerala, 1994 (6) SCC 569, and number of the judgments of this Court the point is not res-integra. According to him, a notice under Section 50 is required to be given when the search of the luggage carried by the person is required to be taken. He submits that though notice under Section 50 was offered to the appellant, but from the statement of P.W. 6 Satish Dwivedi, it would clearly appear that the contents of the notice were not explained to the accused. He submits that compliance of Section 50 is a mandate of law, therefore, a force of compliance would not satisfy the very spirit and soul of the legal provisions. I have heard the parties at length and have perused the records.

6. P.W. 6 Satish Dwivedi, in his examination-in-chief has stated that he had given a notice Ex. P/2 to the appellant. In the cross-examination paragraphs 16 and 17 one can read that the accused had informed Satish Dwivedi that he was a person who was not knowing Hindi. In para 16, the witness had admitted that he gained the knowledge that the accused could not write Hindi. He further admitted that the accused informed him that the accused did not know Hindi but was knowing Uria only. In para 17 the witness has admitted that he did not record the fact that the accused did not know Hindi.

7. Neither in para 16 or 17 nor in paragraph 4, the witness has said that after gaining the knowledge about the lingual problem of the