JUDGMENT 1. - Heard. 1. This is a bail application under Section 439, Cr.P.C., and the accusation against the accused-applicant, is for offence under Section 8/21 of NDPS Act. 2. In this case, a printed notice under Section 50 of the NDPS Act, has been given to the accused-applicant, asking him as to whether he would like the search to be effected in the presence of any Magistrate or Gazetted Officer. But, in the memo of search & recovery, it has been mentioned that the accused-applicant was asked under Section 50 of the NDPS Act as to whether he wants the search to be effected before a Magistrate or before the Gazetted Officer, Shri M.C. Vijay, who is the member of the search/raiding party.2A. In the case of Nadeem v. State of Rajasthan 1998(2) EFR 632 , it has been held by this Court that the Gazetted Officer or the Magistrate, referred to in Section 50 of the NDPS Act, is not the Gazetted Officer or the Magistrate, who is accompanying the search/raiding party. The Gazetted Officer or the Magistrate, mentioned in Section 50, should be one, who is not the member of the search/raiding party. 3. The learned counsel for the accused-applicant, has argued & contended that from the memo of search & recovery, it is clear that the accused-applicant has been given option under Section 50 of the NDPS Act, with regard to search before the Magistrate only, and not before the Gazetted Officer. According to the learned counsel, giving option of search to be made in the presence of a Gazetted Officer, who was accompanying the search/raiding party, is not proper compliance of the provisions of Section 50 of the NDPS Act. According to him, the provisions of Section 50 of the NDPS Act, have not been properly complied with and that the printed notice given to the accused applicant, is of no consequence, because, the search-memo does not mention that the option was given to the accused-applicant, with regard to search in presence of an independent Gazetted Officer, who was not the member of the search/raiding party. 4. 4. The learned Advocate for the prosecution, has contended that even if it is taken that Section 50 of the NDPS Act, has not been complied with by the officer, taking the search, it is not obligatory on the part of the officer to inform the person to be searched, of his right under Section 50 of the NDPS Act. To support his argument, he has relied upon a decision of the Kerala High Court, reported in I (1995) CCR 591 (V. Muhammed Basheer v. State of Kerala) . 5. But, in the case of Saiyad Mohd. Saiyad Umar Saiyad & others v. State of Gujarat (1995) 3 SCC 610 , a three Judges Bench of Hon'ble The Supreme Court has held that it is taken to be 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 and that the provisions of Section 50, are mandatory. Hon'ble The Supreme Court has observed as under:- "Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case ( (1992) 2 SCC 299 ) that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Balbir Singh's case ( (1992) 2 SCC 299 ) that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched, of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114, Illustration (e) of the Indian Evidence Act, 1872 Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established." 6. In view of this decision of Hon'ble The Supreme Court, the contention of the learned counsel appearing for the prosecution that it is not obligatory on the part of the officer, to inform the person to be searched, of his right under Section 50 of the NDPS Act, is not tenable. The learned counsel, appearing for the prosecution, then contended that in this case, the officer of the Narcotic Department has recorded the statement of the accused-applicant, wherein, he has admitted the alleged crime. According to him, the officer of the Narcotic Department, is not a police officer, and as such, the statement of the accused-applicant, recorded by him, is not hit by the provisions of Section 25 of the Evidence Act. 7. But, a perusal of the statement of the accused-applicant, recorded by the officer of the Narcotic Department, would show that he has mentioned the factum of his arrest, in the statement. He has also mentioned the factum of search, seizure etc. in the statement. 7. But, a perusal of the statement of the accused-applicant, recorded by the officer of the Narcotic Department, would show that he has mentioned the factum of his arrest, in the statement. He has also mentioned the factum of search, seizure etc. in the statement. This goes to indicate that the statement of the accused-applicant has been recorded after his arrest, search & recovery. 8. In the case of Kingsley & another v. State of Rajasthan ( 1996 (3) Crimes 370 (Raj.) , it has been held by this Court that if the statement of the accused has been recorded by the Investigating Officer, after his arrest, the statement cannot be read against him because of the bar created by Article 20(3) of the Constitution of India. 9. In the case of R.B. Shah & another v. D.K. Guha & others AIR 1973 SC 1196 , Hon'ble The Supreme Court has held that statement recorded under the Foreign Exchange Regulation Act, after the person was made accused, was hit by Article 20(3) of the Constitution of India. Evidently, on the same analogy, in the present case in hand, the statement of the accused-applicant, recorded by the officer of the Narcotic Department, after the accused-applicant has been arrested, is hit by Article 20(3) of the Constitution of India, and as such, it cannot be read against him. 10. Having regard to the overall facts & circumstances of the case and considering the above arguments advanced by both the sides and without expressing any opinion on the merits of the case. I am of the opinion that it is a fit case, where, the benefit of bail should be extended to the accused-applicant. 11. Accordingly, the bail application under Section 439, Cr.P.C., is allowed and it is ordered that the accused applicant, Babulal, son of Ghasilal, involved in FIR No. 3/98, of Police Station-Narcotic Department, Jhalawar, be released on bail, if he furnishes two surety bonds for Rs. 10,000/- each and a personal bond for Rs. 20,000/-, to the satisfaction of the learner trial court.Bail Allowed. *******