Arumugham, J. - (1.)The petitioners three in number while seeking their bail under Section 439 of the Criminal Procedure Code relied on the legal ground that Section 50 Clause (1) of the Narcotic Drugs & Psychotropic Substances Act, 1985, has not been complied with and that such noncompliance amounts to a clear violation of the mandatory directions of the above section and they he entitle to be enlarged on bail.
(2.)The learned Additional Public Prosecutor objected to the grant of relief on the ground that even assuming that before conducting a search, if the Searching Officer failed to inform the option provided in the Act to the accused and ascertain as to whether they are willing to be searched before a Gazetted Officer or before a near magistrate, it is not a mandatory violation and that as such, the petitioners are not entitled to the relief, as claimed. The learned Additional Public Prosecutor, would object further, that even on facts of this case, since no search was conducted, the person cannot be categorised as on the will attract Section 50 of the N.D.P.S. Act and that on the said ground also, the bail is to be rejected.
(3.)In the light of the above rival pleas, the only question that arises for consideration is, whether the directions provided in Section 50(1) of the N.D.P.S. Act is mandatory in nature and if so, the non compliance of the said direction entitles the petitioners to get the relief under Section 439 of the Code.