S. H. A. Raza, J. - (1.)THE fate of this writ petition hinges on the reply to two questions ; firstly as to whether Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory and its non-compliance would vitiate the trial; secondly, as to whether the arrest has been made by an officer not duly empowered as enumerated in Sections 41 (2) and 42 (1) of the aforesaid Act would also vitiate the trial.
(2.)BEFORE replying to the questions indicated in the foregoing paragraph, the undisputed facts deserve to be enumerated. It is admitted case of the parties that the arrest was made by a Sub-Inspector of Police who is below the rank of an Inspector of Police. At the time of the arrest, it has been asserted in writ petition that the petitioner was not Informed by the officer alleged to be empowered to make arrest, that as to whether he wanted to be searched either by a Magistrate or a Gazetted Officer.
So far as the first question is concerned, in a case of State of Punjab v. Balbir Singh reported in 1994 LLJ 123, the Hon'ble Mr. Justice Jayachandra Reddy speaking on behalf of the Bench indicated in paragraph 23 (5) that: "On prior information, the empowered officer or authorised officer while acting under Section 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact"

In the counter-affidavit, the allegations of the petitioner are that he was not informed by the alleged empowered officer or authorised officer while acting under Section 41 (2) or 42 to be searched by a Gazetted Officer or a Magistrate, vague assertion has been made which was not specifically denied. Only this much has been indicated that the averments made were untrue and it was explained that at the time of arrest, the accused did not express a wish to be searched by a Magistrate or alleged empowered Officer. It is evident that it has not been specifically denied in the counter-affidavit that at the time of the arrest, the alleged empowered officer did not inform the petitioner to be searched by a Gazetted Officer or a Magistrate. In view of the law laid down in the case of Balbir Singh (supra), the Hon'ble Supreme Court clearly indicated that it is obligatory on the part of such an officer to inform the person to be searched and failure to inform the person to be searched would amount to non-compliance of Section 50 of the Act which is mandatory. It would affect the prosecution case and vitiate the trial.

(3.)IN Luxmi Shanker Gupta and Eleven others v. State reported in 1994 LLJ at page 179. a Full Bench of this court which consisted of three Hon'ble Judges including one amongst us (Hon'ble D. K. Trivedi, J.), this question again cropped up. As per majority, it was indicated in Para 250 of the Order that:
'Thus my answer to the questions would differ from ones which have been given by Brother Mathur, J. only to the extent they are inconsistent with the law, as laid down by the Hon'ble Supreme Court in the case of Balbir Singh (supra). The provisions of N.D.P.S. Act, viz. Section 41 (2), proviso to Section 42 (1) and Section 50 have been held to be mandatorily complied with ; if they are violated, it would vitiate the trial, as held by the Hon'ble Supreme Court. I am in full agreement with the rest of the conclusions drawn and answers given by Brother Mathur, J."
The Majority judgment was dictated by Hon'ble Brijesh Kumar, J. which was also concurred by one amongst us (Hon'ble D. K. Trivedi, J.).
Very recently, a Division Bench of the Hon'ble Supreme Court of India consisting of three Hon'ble Judges again considered this aspect of the matter. Hon'ble Mr. A. M. Ahmadi, C.J.I .speaking in the Bench observed in a case 1995 Cr LJ 2662 (SC) that:

"Provisions under Section 50, are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. When the language of Section 50 obliged the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or Magistrate, there is no room for drawing a presumption under Section 114, illustration (e) of Evidence Act. There is no room for such presumption because the possession of illicit articles under the N. D. P. S. Act has to be satisfactorily established before the court. The fact of seizure thereof after a search has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given, the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the N. D. P. S. Act was not established."

It cannot be said that in cases under the N. D. P. S. Act, it is the duly of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in' fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50, affords ; that, therefore, his possession of articles which are illicit under the N. D. P. S. Act is not established ; that the pre-condition for his having to satisfactorily accounted for such possession has not been met ; and to acquit the accused." It was also observed that: "The accused must be made aware of this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug peddlers do not go scot-free due to non-compliance thereof. Such instructions would be of great value, in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes."