S. K. MAHAJAN ( 1 ) THE short point involved in the case is whether the police under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short referred to as "ndps Act"), is required to give an option to the accused to have him searched in the presence of a gazetted officer or a Magistrate even when an Assistant Commissioner of Police, a gazetted officer was a member of the raiding party. Before dealing with this point, a few facts relevant to the case need be given as under : - ( 2 ) ON 23rd July, 1990 an information was alleged to have been received by Assistant Commissioner of Police, Gandhi Nagar to the effect that a person having Charas in his possession comes in a train from Uttar Pradesh and when die tram slows down near Kailash Nagar before the bridge, he gets down from the moving train. The informer then met SI Jaivir Singh and informed that on July 23, 1990 at about 5. 30 p. m. that particular person would be coming in the Moradabad passenger train carrying Charas in his briefcase and would get down there. On receipt of this information, a memo was prepared and two public witnesses were requested to join die raiding party and they agreed to join the same. Sh. O. P. Yadav, Assistant Commissioner of Police, Gandhi Nagar was informed and he also reached the spot. SI Jaivir Singh along with SHO Harvans Singh, two public witnesses and other staff had allegedly held Nakabandi along the western wall of Hanuman Mandir. At about 6. 02 p. m. Moradabad passenger train came and slowed down before it reached opposite Kailash Nagar and a man having a briefcase of light brown colour got down from the train. When he came near the temple he was overpowered at the instance of the informer. He was informed about the presence of ACP and was told that the police had a secret information regarding Charas in his possession. A memo was prepared and the ACP directed search of the accused. SI offered his own search to the accused but the accused declined to search the SI. On checking of the briefcase, a polythene packet containing Charas was recovered which on weighment was found to be seven kilograms. After completion of investigation, the challan was submitted to Court. A memo was prepared and the ACP directed search of the accused. SI offered his own search to the accused but the accused declined to search the SI. On checking of the briefcase, a polythene packet containing Charas was recovered which on weighment was found to be seven kilograms. After completion of investigation, the challan was submitted to Court. Charge under Section 50 of the NDPS Act was framed against the accused to which he pleaded not guilty. After the recording of evidence and completion of trial, the Additional Sessions Judge by his judgment dated 22nd November, 1991 held the appellant guilty of the charges leveled against him and convicted him under Section 20 of the NDPS Act and by order dated 28th November, 1991 sentenced him to undergo rigorous imprisonment of 10 years and a fine of Rs. 1 lakh. ( 3 ) AGGRIEVED by tills order, the appellant has filed this appeal. Admittedly, notice under Section 50 of the NDPS Act was not given to the appellant. The Additional Sessions Judge in his judgment while dealing with the provisions of Section 50 of the NDPS Act has held that in his view as the whole machinery was put into action by ACP, Sh. O. P. Yadav, who was a gazetted officer and he being present when the accused was apprehended and searched and the ACP having disclosed his identity to the accused before the search, there was no necessity of giving any notice under Section 50 of the Act because the accused was not to be taken anywhere for being searched and he was acquainted with the fact that ACP was a gazetted officer. It is this finding of the Court which is assailed before me by the appellant. ( 4 ) SECTION 50 of the NDPS Act reads as under:- 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 (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 ) IN terms of the provisions of Section 50 of the NDPS Act, if during search or arrest of a person about whom information has been received about his being in possession of narcotic drug or psychotropic substance and there is a chance of any narcotic drug and psychotropic substance being recovered from him, then the police officer, who is not empowered, should inform the empowered officer, and thereafter proceed in accordance with the provisions of the Act. If he happens to be an empowered officer also then from that stage onward he should carry out the investigation in accordance with other provisions of the Act. ( 6 ) IN State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 , it was held by the Supreme Court that the provisions of Section 50 of NDPS Act are mandatory in nature and non-compliance with the said provisions would vitiate the trial and affect the case of the prosecution. The Supreme Court while discussing as to how a person is required to be searched, has held as under:- "when the police, while acting under the provisions of Cr. P. C. as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of Cr. P. C. At this stage if there is any non-compliance of the provisions of S. 100 or 165, Cr. P. C. that by itself cannot be a ground to reject the prosecution case outright. . The effect of such non-compliance will have a. bearing on the appreciation, of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act the question of complying with the provisions of the said Act including S. 50 at that stage would not arise. In carrying out such searches if they come across any substance covered by the NDPS Act the question of complying with the provisions of the said Act including S. 50 at that stage would not arise. When the contraband seized during such arrest or searches attracts the provisions of NDPS Act then from that stage the remaining relevant provisions of NDPS Act would be attracted and the further steps have to be taken in accordance with the provisions of the said Act. ( 7 ) ON prior information, the empowered officer or authorised officer while acting under S. 41 (2) or 42 should comply with the provisions of S. 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. 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 S. 5 0 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. ( 8 ) IT is an imperative requirement 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. Thus the provisions ofs. 50 are mandatory. " ( 9 ) THIS view of the clear mandate of Section 50 of the NDPS Act that the person who is being searched has to be informed that he had the right to be searched in the presence of a gazetted officer or a Magistrate, the search conducted by an ACP who is a gazetted officer cannot be said to be in compliance of Section 50 of the NDPS Act. If such a person was informed of his right to be searched in the presence of a gazetted officer or the Magistrate, the said person might have opted to be searched before a Magistrate. The compliance, if any, is, therefore, only partial. If such a person was informed of his right to be searched in the presence of a gazetted officer or the Magistrate, the said person might have opted to be searched before a Magistrate. The compliance, if any, is, therefore, only partial. On similar facts, even assuming that the accused was aware that the ACP was a gazetted officer and no offer to be searched before a Magistrate was given, it was held by Jaspal Singh. J. in case reported as Jagdish Prashad Vs. State 54 (1994) DLT 424 that the offer with regard to search was only partial and was in clear violation of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. If the accused is not told about his right to be searched before a gazetted officer or before a Magistrate, in my opinion, the provisions of Section 50 of the NDPS Act are not satisfied. It is no compliance of the Section 50 of the Act to say that the search was conducted in the presence of ACP who happened to be a gazetted officer. ( 10 ) IN view of the fact that the provisions of Section 50 of the NDPS Act have not been complied with, the whole trial stands vitiated and the conviction and sentence passed against the appellant cannot be maintained. I, therefore, allow this appeal and set aside the conviction and sentence passed against the appellant. ( 11 ) THE appellant is directed to be released forthwith. ( 12 ) AN intimation of this order be sent immediately to Superintendent, Central Jail, Tihar.