JUDGMENT
J.K. Mehra, J.
(1) I have heard the parties. This is an appeal directed against the order/Judgment of conviction dated 16.01.1993, passed by Mr. Kuldcep Singh,ASJ, Delhi. The appellant has been convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a term of ten yea
(2) Briefly stating, the facts of the case are that on 14.7.1989, Asi Ram Kishan Along with Si Sri Kishan, Constable Ved Pal and Spo Hari Ram was present in the area of P.S. Nangloi. They received an information that a person who sells opium and is in possession of opium,is standing at the corner of Kamruddin Nagar waiting for the customers. They formed a raiding party and requested the passers-by to join, but no body agreed. Asi also informed the Sho about the secret information on telephone and requested him to reach the corner of Kamruddin Nagar, Najafgarh Road. Asi Along with the other staff reached the spot and arrested the accused. It is contended by the prosecution that an option under Section 50 of Ndps Act was given to the accused and he was informed that if he so desired, could be searched in the presence of a Gazetted Officer or a Magistrate, but he declined this offer.
(3) In this case, admittedly no written notice under Section 50 Ndps was given. The witnessses Public Witness . 2, Public Witness . 3, Public Witness . 4 and Public Witness . 10 have deposed about the fact of accused having been informed that he had a right to be searched in the presence of the Gazetted Officer. This at best could be considered as a partial compliance of the mandatory requirements of Section 50 Ndps Act. It appears that subsequently, the prosecution tried to improve upon its case by producing Public Witness . 6, Hari Ram, who is Special Police Officer and it cannot be ruled out that he is under the influence of the Police Authorities and he has deposed that a complete option was given. It may be noticed that statement of Public Witness . 6 was recorded on a date subsequent to the dates on which the earlier three witnesses had been examined. The chances of his having een tutored with a view to improve upon the case of prosecution cannot be ruled out. Therefore, his testimony does not inspire confidence. Strict compliance of Section 50 of Ndps Act in the present case is mandatory. In the facts and circumstances of the case, it appears that the prosecution has failed to comply with the said provision as the appellant was given at best only a partial option of being searched in the presence of a Gazetted Officer.
(4) There are some other points also urged before me, but it will not be necessary in the light of the above facts to dwell upon those grounds because in my opinion, this appeal can be disposed of on the question of failure to comply fully with the mandatory provisions of Section 50 of Ndps Act by the officers, who took a personal search of the appellant. Section 50 of Ndps Act reads as under :
“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 ring him before the gazetted Officer or the Magistrate referred to in Subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if 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 anyone excepting a female.”
(5) According to provisions of Section 50, the accused must be informed of his right that if he so wishes, he can be searched in the presence of the Gazetted Officer or the nearest Magistrate. The evidence referred to hereinabove clearly rings out that the option that was given, was only a partial one, i.e., the appellant was informed of his right that if he wanted to be searched in the presence of the Gazetted Officer, the same could be arranged. In the case of State of Punjab v. Balbir Singh, reported as , the Hon’ble Supreme Court has held that it was imperative on the part of the officer intending to search, to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. The Hon’ble Supreme Court has held this provision to be mandatory.
(6) I have already held in the case of Shri Krishan v. State in Crl.A. No. 54/91, decided on 4th September, 1995 that even partial option given to the appellant did not amount to compliance with the provisions of Section 50 of Ndps Act and in that view, had set aside the order of conviction.
(7) In another case of Satish @ Bomaiya v. State, reported as where a limited option of being searched before Gazetted Officer was given, this Court has held that there was a non compliance with the mandatory provision of the Act and the consequent conviction of the accused was set aside. Same was the situation in the case of Chameli Devi v. State, reported as 1993(2) Chandigarh Criminal Cases 146, which was also a case of partial option and it was held to be amounting to non-compliance with the mandatory provisions of Section 50 of the Act. In the cases of Jagdish Prasad v. State, reported as 1994(3) Ad (Delhi) 113 and Mukesh v. State (Delhi Administration), reported as 1994 (3) Crimes 337 also, the accused was informed that if he wanted, the search could be conducted in the presence of a Gazetted Officer. This option was held to be a partial offer limiting the choice having the effect of non-compliance of the mandatory provisions of Section 50, which resulted in the order of acquittal.
(8) The present case is not different from those referred to above and in view of the judgment of the Hon’ble Supreme Court and the various judgments, referred to herein above, the conclusion in the present case is also irresistible that the option given to the appellant at best was a partial option, which does not amount to compliance with the provisions of Section 50 of Ndps Act and such non-compliance would inevitably invite the setting aside of the order of conviction.
(9) Another peculiar fact in the present case is that nobody has proved die Fir and it is lying on record untendered and unproved. Taking a cumulative effect of the facts proved, I think the accused is entitled to the benefit of doubt.
(10) The result of the above discussion is that the appeal is allowed. The trial is held to have been vitiated on account of non-compliance with the provisions of Section 50 of Ndps Act; the order of conviction and sentence are set aside and the appellant is acquitted of the charges. He would be released forthwith, if not required to be detained in any other case. A copy of this order be sent to Superintendent, Central Jail. dusty.