D.C.DALEIA,J. - (1.) THE short point on which the appeal is being decided does not require detailed discussion of facts and evidence. According to prosecution on 14-5-92 in (sic) at 11.00 a. m. the accused-appellant was searched and thereupon 2.500 kgs. of opium was recovered from his possession. Thus, he was charged for the offence under Section 8/17-18, NDPS Act. After recording the necessary evidence and hearing both the sides the learned Special Judge, NDPS Act cases, Jodhpur vide his order dated 6-4-93 convicted the accused-appellant for the said offence and sentenced him to a rigorous imprisonment for ten years and a fine of Rs. one lac. In default of the fine a further imprisonment for one year was directed.
(2.) AGAINST this conviction and sentence this appeal has been preferred by the accused-appellant. In this case the provisions of Section 50, NDPS Act have not been fully complied with. In the case of State of Punjab v. Balbir Singh,, reported in 1995 JIC 382 (SC), and in the case of All Mustaffa Abdul Rahman Moosa v. State of Kerala, reported in 1995 JIC 500 (SC), it has been laid down by the Supreme Court that the provisions of Section 50 are mandatory and the non-compliance whereof would vitiate the conviction. It has been held by the Apex Court that on prior information as con­templated under Section 42, NDPS Act, the authorised or empowered officer should comply with the provisions of Section 50 before the search of a person is made and such person should be informed that if he so requires he should be produced before a Gazetted Officer or a Magistrate as provided thereunder. The Apex Court has ob­served that before the authorised or empowered officer conducts a search he should give the accused an option to be searched either in the presence of a Gazetted Officer or of a Magistrate. The Apex Court has expressly hold that the provisions of Section 50 are mandatory and the non-compliance whereof would vitiate the conviction. In Ali Mustaffa Abdul Rahman Moosa's case the Apex Court has observed: In State of Punjab v. Balbir Singh (supra), it has been held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a Gazetted Officer or of a Magistrate. It was also held that Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate and if he so requires under the failure to provide that option to the accused vitiates his convic­tion. From the above observation, it is evident that it is imperative on the part of the officer conducting a search to inform the person to be searched of his right, that if he so requires to be searched before a Gazetted Officer or a Magistrate. Thus, under Section 50 the accused has to be given the option to be searched either in the presence of a Gazetted Officer or of a Magistrate. If both the options, viz., search in the presence of a Gazetted Officer or of a Magistrate are not given the mandatory provisions of Section 50 cannot be said to have been complied with. If the accused is given only one option i. e. to be searched in the presence of a Gazetted Officer, obviously, the provisions of Section 50 are not fully complied with. Similarly, if the option is given only for the search in the presence of a Magistrate only even then the provisions of Section 50 are not fully complied with.
(3.) IN the case in hand, the accused-appellant was given only one option to be searched in the presence of a Gazetted Officer. The option to be searched in the presence of a Magistrate was not given to the accused-appellant. PW 9 is S. H. O. Samunder Singh Rathore, who conducted the search of the appellant. He has deposed that before the search is made the accused was informed as to whether he wants the search to be effected in the presence of a Gazetted Officer and when the appellant expressed his desire for the search in the presence of the Gazetted Officer, he was taken before the Circle Officer or Dy. S. P., who was a Gazetted Officer and there the search was effected and the recovery was made. From the memos Ex. P-1and Ex. P-2 it is also evident that the accused-appellant was given only one option to be searched in the presence of a Gazetted Officer. No option for the search in the presence of a Magistrate was given to the accused-appellant. In my opinion, therefore, the provisions of Section 50 have not been fully complied with. Thus, there has been a non-compliance of the provisions of Section 50 of the NDPS Act.;