ORDER
G.R. Bhattacharyajee, J.
1. This is an appeal preferred by the accused/convict Mona Das against the order of conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentence of rigorous imprisonment for l0 years with a fine of Rs. 1 lakh, in default, RI for two months more imposed by the learned Judge, Sixth Bench of the City Civil and Sessions Court, Calcutta by his order dated 25th February, 1991. The prosecution case in short is that on 15th June, 1986, between 11.30 p. m. and 11.40 p.m. the accused was found standing in front of 243 A, APC Road and was searched by the Sub-Inspector of Police PW4 Shri Chittaranjan Mukherjee who was attached to Bartala P. S. and 30 small packets of Cellophane papers containing heroin and weighing about 5 gms. were recovered and seized from the wearing garment of the accused in presence of witnesses,.
2. At this stage let us look to spme relevant evidence on record. PW4 is a Sub-Inspector of Police who was attached to Bartala P S. at the relevant time. He says that on 15th June. 1986, he was on round duty from 10.40 p m and after crossing Beadon Street when he aimed at APC Road he got information from source that a man was standing at 243A, APC Road (bus stand) with heroin packet ill order to sell the same and he at once went there with force and the O. C. of the P. S. and caught Hold of that nan who was standing alone. He further says that he asked that man (being the, acused) to bring out what was there with him and the accused replied that he had nothing with him and on seeing that some passers-by assembled there he (PW4) told them that there was heroin with the accused and, in presence of these men present there, searched the person of the accused and one small packet was found from the right pocket of the full shirt which the accused was wearing and on opening the said packet 30 purias of Cellophane paper containing heroin were found. PW4 further says that he called two witnesses in whose presence he lodged the packet within an empty match box and weighed the contents of the Cellophane packet which was found to be 5 gms. His evidence is that he prepared seizure list on the spot and sealed the packet there. Dr. N.N. Chakraborty is the Director of Drugs, Central Public Health and Drugs Laboratory under Government of West Bengal, Calcutta. He has been examined to prove that the seized things were, on sample analysis, found to be heroin. PW1 Rabin Mondal is a seizure list witness. So is PW5 Asirn Chakraborty. He was however declared hostile by the prosecution.
3. The evidence of the Sub-inspector of police (PW4) who made the search and seizure shows that the police party approached the accused (who was standing on APC Road) on the basis of source information that a man was standing there with heroin packet in order to sell the same. The learned Advocate Mr. Dutt draws our attention to Section 42, NDPS Act and submits that when any search is made in connection with the commission of any offence under Chapter IV of the NDPS Act as referred to in the said section, on the basis of any information given by any person such information is required to be taken down in writing before making any such search. Indeed there is no direct evidence in this case as to whether any such information was taken down in writing before conducting the search. But the learned trial Judge in his judgment records that it was argued before him on behalf of the accused that prosecution had not proved the G. D. which was the basis of the FIR and the G. D. has not been exhibited by the prosecution. The learned trial Judge has however recorded that the G. D was forwarded to the Magistrate on 16th June, 1986, and it was a part of the record and the learned trial Judge found therefrom that the FIR was really an extract from the G. D. containing material information and there was nothing to disbelieve the FIR. liven then, It is not clear Whether the G. D. was recorded before the search was made because Section 42 requires that the information must be taken down in writing before the. search is made, where such searches made, on the basis of information, This aspect of the case in However hot material for our present purpose inasmuch as Section 42 applies to a case of search where such search is made in a building, conveyance Or enclosed place but in the present case the search was made of the person of the accused on an open public road (being a public place) and therefore such search is governed by Section 43 and not Section 42 of the NDPS Act. Section 43 of the NDPS Act runs thus:-
“Section 43. Power of seizure and arrest in public places – Any officer of any of the departments mentioned in Section 42 may:-
(a) Seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document, or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation:- For the purposes of this section, the expression ‘public place’ includes any public conveyance hotel, shop or other place intended for use by, or accessible to, the public.”
As we have seen, since in the present case the search of the accused and seizure and arrest were made on a public road the matter is governed by Section 43 under which the concerned officer can make a search of person and seizure irrespective of the question whether it is done before or after sun set, and the said section also does not require any prior taking down in writing, of any information on the basis of which such search may be made.
4. But then Section 50 of the NDPS Act is attracted even in the case of search of person under Section 43. Section 50 runs thus:-
“S. 50. Conditions under which search of persons shall be conducted:-
(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (I).
(3) The Gazetted Officer or :he Magistrate before whom any such person is brought shall, it he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4.) No female shall be searched by any one excepting a female.” –
(Emphasis supplied)
Section 50 therefore requires, inter alia, that before searching a person under Section 43 the authorised officer has to take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned I n Section 42 or to the nearest Magistrate ‘if such person so requires’. The Supreme Court in State of Punjab v. Balbir Singh, , has interpreted Section 50 of the NDPS Act to the effect inter alia that it is obligatory on the part of the officer concerned to inform the person to be searched that if he so requires he shall be produced before a Gazetted Officer or a Magistrate as provided in the Section 50 and it is obligatory on the part of such officer to so inform the person to be searched and 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.
5. As we have seen in the present case there is no evidence whatsoever that the police officer before conducting the search informed the: appellant accused that if he so required he would be produced before a Gazetted Officer or Magistrate as provided under Section 50 before conducting any search of his person. That being so, in view of the interpretation given by the Supreme Court in the State of Punjab v. Balbir Singh (supra), more particularly, as recorded in paragraphs 21 and 26(5) of the said decision, the prosecution and the trial stand vitiated for non-compliance of Section 50 of the NDPS Act. If the trial itself stands vitiated, as it does, in this case for non-compliance of Section 50, the conviction and sentence imposed by the learned trial Court in the case also can not be-sustained. In the circumstances for non-compliance of the mandatory provision of Section 50 as interpreted by the Supreme Court in State of Punjab v. Balbir Singh (supra) the impugned conviction and sentence are hereby set aside and the accused appellant stand acquitted of the charge under Section 21 of the NDPS Act. The appeal also thus stands allowed. The accused appellant be forthwith released from detention, if his detention is not lawfully required in connection with any other matter.
6. Before we part with, we would like to record that Mr. Dilip kr. Dutt the learned Advocate who appeared in Cr. Appeal No. 89/92 and which was also heard on the same day brought the decision of the Supreme Court in State of Punjab v. Balbir Singh (supra), to our notice in connection with this appeal as well as in connection with aforesaid appeal as both the appeals arose out of conviction and sentence under the NDPS Act with certain common questions of law being involved in both the cases. We record our appreciation of the assistance rendered by Mr. Dutt in this appeal, particularly on questions of law.