JUDGMENT 1. - This appeal is directed against the judgment dated 24.7.93, whereby the accused appellant has been convicted for the offence under section 8/18 of the N.D.P.S. Act and sentenced to undergo 10 year's rigorous imprisonment and also pay fine Rs. 1,00,000/- (Rs. one lac), in default of payment of fine, further undergo one year's rigorous imprisonment. 2. The facts of the prosecution case are that on 21.8.92, at 11.45 a.m., Dy.S.P. Shri Nandram Chowdhary has lodged F.I.R. at Police Station Chhabra. In the report, it is alleged that at 10.00 - 11.30 a.m., accused Prabhu Lal S/o Mool Chand Mali, aged 35 years, was produced before him by Heera Lal, SHO, PS Chhabra for search of accused as there was a doubt that some opium is in possession of the accused. It is further alleged in the report that while Heera Lal, SHO, Head Constable Dashrath Singh and constable Mohammad Hanif were on round near Railway Station, accused was coming from Railway side. On enquiry, he disclosed his name Prabhu Lal. At that point of time, accused was in possession of a bag. It was doubted that opium is in his possession, therefore, he brought the accused before Dy.S.P. and Dy.S.P. has searched accused appellant. On search, opium weighing 2.590 gms. was found in possession of the accused. After recovery of opium, it was asked from the accused appellant whether he has any licence to keep opium. He denied and said that he has no licence for opium in question. That opium was seized and out of that opium, two samples 30 gms. each were taken. Those samples were sealed and sent for chemical examination. After examination, it was found opium. After due investigation, challan has been filed and charges have been framed. The prosecution has examined as many as 6 witnesses. The statement of accused has been recorded under section. 313 Criminal Procedure Code. In defence, Satya Narain (DW. 1), Kanhaiya Lal @ Kanha (DW. 2), Mool Chand (DW. 3), Duli Chand (DW. 4) and Jagdish Chandra (DW. 5) have been examined. Considering the material on record, the accused appellant has been convicted and sentenced as aforesaid. 3. Mr. Biri Singh, learned counsel for the appellant has submitted that documents which are not exhibited cannot be read against the accused. Admittedly, F.S.L. report has not been exhibited. 4. Mr. 3), Duli Chand (DW. 4) and Jagdish Chandra (DW. 5) have been examined. Considering the material on record, the accused appellant has been convicted and sentenced as aforesaid. 3. Mr. Biri Singh, learned counsel for the appellant has submitted that documents which are not exhibited cannot be read against the accused. Admittedly, F.S.L. report has not been exhibited. 4. Mr. Biri Singh has also brought to my notice that the prosecution has failed to comply with the mandatory provisions of Section 50 of the N.D.P.S. Act. Section 50 of the N.D.P.S. Act reads as under:- "50. Conditions under which search of persons shall be conducted:- (i) 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. (ii) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officeror the Magistrate referred to in Sub-Section (1). (iii) 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. (iv) No female shall be searched by anyone excepting a female." 5. The provisions of Section 50 of the N.D.P.S. Act requires that as soon as accused is arrested, he has a right, if he so requires, he can be searched only in presence of Gazetted Officer or Magistrate. In the instant case, the accused had not been informed about his right that under the provisions of N.D.P.S. Act, if he requires, he can be searched in presence of the Gazetted Officer or Magistrate. 6. In Bhanwar Singh & Anr. v. State of Rajasthan, 1990 (1) WLN 710 , this Court has considered the similar issue when accused has not been informed about his right under section 50 whether that vitiates the investigation. This Court has observed as under:- "Similarly in Section 50 when the officer authorised under Section 42 is about to search any person without any necessary delay to the nearest Gazetted Officer of any of the department mentioned in Section 42 or to the nearest Magistrate if the person so requires. This Court has observed as under:- "Similarly in Section 50 when the officer authorised under Section 42 is about to search any person without any necessary delay to the nearest Gazetted Officer of any of the department mentioned in Section 42 or to the nearest Magistrate if the person so requires. The officer, therefore, is obliged to inform the accused before a search is made that if he desires he can be taken to the nearest Gazetted Officer of any department for effecting the search." The Court has further observed as under:- "This is not a ritual or idle formality to be performed or to append a note at the end of the search memo that the accused has not desired to be taken to the Gazetted Officer. The right to effect the search to the officer mentioned in Section 42 is only available when he has informed the accused of his right. This is further clear from the words mentioned in Sub-section (2) of Section 50 wherein a right is given to the Gazetted Officer or the Magistrate before whom such person is brought to forthwith discharge that person if he sees no reasonable ground for search but otherwise he shall direct that the search be made. A composite reading of sub-sections (1) and (3) leaves no room of doubt to give the interpretation that the person to be searched has to be asked if he requires to be taken to the nearest Gazetted Officer of any department mentioned in Section 42 or to the nearest Magistrate." 7. In case of Prithvi Raj v. State, 1989 RCC 474 , this Court has observed as under:- "So, as per Section 50 of the Act, it was the duty of the Officer in charge to have brought to that person's knowledge after the seizure, search and arrest of the person, the provisions of this section, and should have asked him whether he desired to be produced before a Gazetted Officer or a Magistrate; and if he so desired, then, it was the duly of the Officer in Charge to have produced him before a Gazetted Officer or before the nearest Magistrate. In the present case, the police officer who had seized the article and arrested the person, had not brought to the notice of that person the provisions of Section 50 of the Act nor had he asked him whether he desired to be produced before a Gazetted Officer or before the nearest Magistrate. So, this was a clear violation of Section 50 of the Act." 8. The seizure memo Ex. P. 1 reveals that Heera Lal, SHO, PS Chhabra along with his police party prod uced the accused before Dy.S.P. The Dy.S.P. has asked that we have doubt that you have opium in your bag, I am a Gazetted Officer in police, can I take search. On that, accused agreed and on search, opium weighing 2.590 gms. were recovered. The requirement of Section 50 of the N.D.P.S. Act is that just after arrest on a doubt that accused has opium in his possession, he should be informed about his right that he can be searched in presence of Gazetted Officer or Magistrate if he so requires. No such information has been given by Heera Lal, SHO to accused Prabhu Lal. Not only that, while Heera Lal, SHO along with his police party took the accused to Dy.S.P., instead of making search of accused appellant by SHO Heera Lal in presence of Dy.S.P., Dy.S.P. has himself searched and recovered 2.590 gms. from the possession of accused. Section 50 of the N.D.P.S. Act requires that search should be in presence of Magistrate or gazetted Officer, and the search should not be by Magistrate or gazetted Officer, before whom the accused is produced. The provisions of N.D.P.S. Act are being stringent, therefore, while interpreting the provisions of this Act, one should keep in mind that the legislature speaks its mind by use of correct expression and unless there is ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to absurdity. The provisions of N.D.P.S. Act are being stringent, therefore, while interpreting the provisions of this Act, one should keep in mind that the legislature speaks its mind by use of correct expression and unless there is ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to absurdity. The word used in Section 50 `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' and sub-section (3) of Section 50 further provides 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. Admittedly, in this case, search has been made by the Dy. S.P. himself instead of directing the search to be made by S.H.O., thus the provisions of Section 50 has not been strictly complied with as required in Section 50 of the Act.In the result, the appeal is allowed and conviction and sentence are set aside. The accused be released forthwith, if not required in any other case.Appeal allowed. *******