Vijender Jain ( 1 ) THIS is an appeal against conviction and sentencepassed by the Additional Sessions Judge dated 2. 7. 1992. The appellant wassentenced to undergo rigorous imprisonment for a period of 10 years and to paya fine of Rs. 1 lac failing which he was to further undergo simple imprisonment forone year. The incident and alleged recovery is dated 3. 6. 1990. According to Mr. Sanjiv Kumar, learned Counsel for the appellant, notice under Section 50 of thendps Act, which is ex. PW-2/a , only limited option was given to the appellantbefore his search. I have perused the notice and it has been mentioned that if theappellant wishes, his search could be taken before a Gazetted Officer. Similarly inthe F. I. R. also this fact is reiterated. Mr. Kumar has argued that partial optionwould tantamount to no option in terms of the mandate of Supreme Court in viewof the decision in State of Punjab v. Balbir Singh, 1994 (1) Crimes 753. What thelearned Counsel for the appellant has contended is that from the bare reading ofsection 50 of the NDPS Act, it postulates that the appellant ought to have beengiven an option whether he would like to be searched before a Gazetted Officer orbefore a Magistrate. If the appellant was given a limited option, that would bemaking the option as contemplated under Section 50 of the Act nugatory as thelegislature has intended that the option should be real and meaningful and thatis why option to the person accused of the offence under the Act to be searchedbefore the Gazetted Officer or the Magistrate is given in the said Section of theact. In support of his arguments Mr. Kumar has cited the decisions of this Courtin Jagdish v. State, 1994 (3) A. D. Delhi 113, Chameli Devi v. State, (1993) 50 DLT439 and Satish @ Bombaiya v. State, (1991) (44) DLT 561. ( 2 ). On the other hand, Mr. Hirdayjot Singh, learned Counsel for the State, hascontended that in the facts and circumstances of this case and in view of thetestimony of PW-3 it was not necessary for the raiding party or the officerconcerned to have given a notice under Section 50 of the NDPS Act. Whatmr. Singh has contended is that there was no prior information with the Policethat the appellant was having article in contravention of NDPS Act. Whatmr. Singh has contended is that there was no prior information with the Policethat the appellant was having article in contravention of NDPS Act. His argumentis that it was a chance recovery and Mr. Singh has further contended that if thatwas so then there was no need for a notice under Section 50 of the Act to be givenby the officer or the raiding party. Mr. Singh has also contended that in any eventthe notice given under Section 50 of the Act was a valid notice and on this scorethe conviction and sentence cannot be set aside. ( 3 ) I have given my careful consideration to the arguments advanced bylearned Counsel for both the parties. Learned Additional Sessions Judge hascompletely mis-read the provisions of Section 50 of the NDPS Act. To thearguments advanced by the learned Counsel for the appellant, the Additionalsessions Judge has dealt the same in the following manner. "for the following reasons I do not hold with the views of the learned defencecounsel. Arguments urged by him do not appear to be coherent. A barereading of Section 50 NDPS Act clearly goes to show that the Investigatingagency is bound to search the accused either before a Gazetted Officer ora Magistrate. The choice has been given to the Investigating Agency and notto the accused. It is the wish and convenience of the Investigating Agencyto produce the accused either before a Gazetted Officer or a Magistrate. Theaccused has no choice in this matter. " ( 4 ). The aforesaid interpretation of Section 50 of the Act by the Additionalsessions Judge is neither here nor there. The Additional Sessions Judge hascompletely mis-read the provisions of Section 50 of the Act. From the plainlanguage of Section 50 of the NDPS Act, which is as follows :-"conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to searchany person under the provisions of Section 41, Section 42 or Section42, he shall, if such person so requires, take such person withoutunnecessary delay to the nearest Gazetted Officer of any of thedepartments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until hecan bring him before the Gazetted Officer or the Magistrate referredto in Sub-section (1 ). (2) If such requisition is made, the officer may detain the person until hecan bring him before the Gazetted Officer or the Magistrate referredto in Sub-section (1 ). (3) The Gazetted Officer or the Magistrate before whom any such personis brought shall, if he sees no reasonable ground for search, forthwithdischarge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. it would be clear that the option and choice is of the person, who is alleged to bein possession of the article and not of the Investigating Agency. The principle onthe basis of which the Additional Sessions Judge has dismissed the submissionsof the learned Counsel for the defence are patently mis-conceived and untenablein law. Coming to the arguments of Mr. Singh, learned Counsel for the State,that there was no need for the Police Officer to give notice under Section 50 of thendps Act, I find no substance in the arguments in view. , of the fact that noticewas given, which is ex. PW-2/a , it is fallacious on the part of the State to arugethat the Police Officer purported to act under law did not know that in what kindof cases, notice under Section 50 of the Act is to be given or not to be given and thatis why it seems that no such argument was raised by the State before the Trialcourt. Onceanoticeundersection50 of the Actis given by the State to the accused,it is the State, which has to explain whether the notice under Section 50 of thendps Act is in consonance with the mandatory requirement of the provisions oflaw. ( 5 ). In my considered opinion and following the aforesaid cases cited by thelearned Counsel for the appellant, the notice giving a partial option to the accusedcannot be termed as full compliance of Section 50 of the NDPS Act. On this groundalone, the conviction and sentence of the appellant cannot be sustained. The resultis that the appeal is allowed. The judgment of conviction and sentenced passed bythe Additional Sessions Judge is set aside. Appellant be released forthwith, if notrequired in any other case. Appeal is allowed accordingly.