JUDGMENT : - S.B. Sinha, ACJ.: Reference to this Bench has been made by one of us (G. R. Bhattacharjee, J) by an order dated 5.3.1999 as His Lordship doubted the correctness of the decision of a Division Bench of this Court in Ajoy Srivastava vs. State of West Bengal, reported in 1998 Cal. Cri. L. R. 417 opining that the search in presence of a Gazetted Officer would be in substantial compliance of the requirements laid down in section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985. 2. The case at hand raises a question as regard interpretation of section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the said Act'). The provisions which are relevant for decisions in this case are as follows : "S.41. Power to issue warrant and authorization-(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence of any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to be live from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter-IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being in officer superior in rank to a peon, sepoy of constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that. any Narcotic Drug or Psychotropic Substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset (a) enter into and search any such building, conveyance or place ; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other' article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording. opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof of his immediate official superior. (Underlining is mine for emphasis) 43. Power of seizure and arrest in public places Any officer of any of the departments mentioned in section 42 may. (Underlining is mine for emphasis) 43. Power of seizure and arrest in public places Any officer of any of the departments mentioned in section 42 may. (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance ; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation : - For the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 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 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 mode, 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." 3. It is now a well settled principles of law that section 50 conferred a valuable right upon an accused. forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female." 3. It is now a well settled principles of law that section 50 conferred a valuable right upon an accused. In terms of Article 21 of the Constitution of India as has been interpreted by the Apex Court in Dilip K. Basu vs. State of West Bengal & Ors., reported in AIR 1997 SC 3017 a person who may be arrested has some valuable rights. 4. A person, thus, has been conferred upon certain rights before or after he is arrested on the suspicion of commission of some cognizable offences. Section 50 of the said Act confers such a right. The conditions laid down under section 50, are : 1. That the officer conducting search of a person, must be authorised under section 42. 2. Immediately before such a search is caused under the provisions of section 41, section 42 or section 43, he would inform the said person about his right that he may be searched in presence of a Gazetted Officer or a Magistrate. Once such an option is exercised he shall be taken to the nearest Gazetted Officer of any of the Department mentioned in section 42 or the nearest Magistrate. Once an option is exercised, the officer has a right to detain the person till he is brought before the Gazetted Officer or the Magistrate, as the case may be. 3. The Gazetted Officer or the Magistrate before whom any such person is brought, must apply his mind as regards the question as to whether any such search at all is required to be made and issue an appropriate direction i.e. either discharge the person or directing that a search be made. . 5. 3. The Gazetted Officer or the Magistrate before whom any such person is brought, must apply his mind as regards the question as to whether any such search at all is required to be made and issue an appropriate direction i.e. either discharge the person or directing that a search be made. . 5. Before proceeding to advert to the question posed in this reference the court has also to bear in mind that even in terms of section 42 of the said Act the officer specified therein may enter into for causing the search of any building, conveyance or place if he has reason to believe either from his personal knowledge or information given by any person and taken down in writing, that any Narcotic Drug or Psychotropic Substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place. 6. Thus, 'reason to believe' in terms of section 42 or application of mind in terms of sub-section (3) of section 50 is imperative. With a view to see• as to whether in the instant case the aforementioned mandatory requirements have been complied with or not, the evidence on record may be considered. 7. P.W. 1 was the Officer-in-Charge of the Excise, Howrah, E.I.B. On his own showing, he on hearing an announcement of arrival of Dn. Mithila Express, along with others took position near the engine side of the platform and each had been standing at a distance of 3/4 cubits from the other. This statement goes to show that he had some prior information as otherwise there is absolutely no reason as to why he and his accompanying constables would take position near the engine side of the platform. 8. P.W. 2, Niranjan Ghosh, suspected a person and intercepted him which amounts to detention. He called P.W. 1 who in turn called .his staff with the DEC. The DEC was also a party to the said raid. P. W. 2, Niranjan Ghosh in his 'deposition stated : "I called O/C other staff also came, O/C directed me to bring a witness. I called one public witness. In presence of that witness and us including D.E.C. search was conducted in presence of the accused." 9. The DEC was also a party to the said raid. P. W. 2, Niranjan Ghosh in his 'deposition stated : "I called O/C other staff also came, O/C directed me to bring a witness. I called one public witness. In presence of that witness and us including D.E.C. search was conducted in presence of the accused." 9. The said witness also does not say that the accused was informed about his right in terms of section 50. He, however, alleged that D.E.C. is a Gazetted Officer. According to him the accused was told about the presence of Gazetted Officer. He alleges that D.E.C. was there and in presence of the witness, the staff and D.E.C., the search was conducted on the person of the accused, who told his name as Jadunandan Roy. Admittedly, thus, the accused was not informed about his right of option as envisaged under section 50 of the Act. 10. P.W. 3, Naresh Chakraborty is the so-called public witness. He, in his deposition, stated :- "The Officer then tole me to wait there and in presence of myself the search of the person of the accused was conducted." 11. He, therefore, does not support that statements made by P.W. 2. His evidence is otherwise also not reliable as he admitted that he had deposed earlier in similar cases in the court evidently at the instance of the prosecution. 12. P.W. 4, Chiranjib Ganguly, is said to be a Gazetted Officer. He III his deposition stated :-. "One public witness was brought by him by O/C asked the suspected person that one Gazetted Officer was with us and he pointed to me." He again stated : "There is no signature of mine either in the FIR or on any documents. There is no document to show my presence then on that day." 13. He also does not state that he had applied his mind on the materials available before him so as to enable him to perform his statutory duty as envisaged under sub-section (3) of section 50 of the Act 14. Although his name appears in the seizure memo but the said statement castes doubt upon the veracity of such seizure memo. 15. P.W. 5, Tapan Kumar Roy, is one of the Excise Constables. Although his name appears in the seizure memo but the said statement castes doubt upon the veracity of such seizure memo. 15. P.W. 5, Tapan Kumar Roy, is one of the Excise Constables. In his deposition he stated : "Then in presence of public witness and us O/C conducted search on the accused who told his name as Jadunandan Roy (identifies)." 16. The witness also does not state that any option had been given to the accused nor the other requirements of section 50 had been complied with. 17. The evidence of P.W. 6 Dilip Kumar Seth is not relevant. 18. Upon analysis of aforementioned evidences on record it is, therefore, clear that P.W.I. did not inform the accused about his right that he may be searched in presence of a Gazetted Officer or Magistrate. P.W. 4 Chiranjib Ganguly never disclosed his identity as a Gazetted Officer nor did he apply his mind as regard the question as to whether he should be searched or not. 19. The statements of P.W. 1 and P.W. 2 as regard the presence of P.W. 4 cannot also be relied upon. 20. P.W. 2 is not an officer authorised to conduct search. He, however, detained the accused which authority he did not have and informed P.W.1. P.W.1 neither states nor does disclose any material to show as to how he formed an opinion as regard "his reason to believe" that an offence under the Act had been committed that the said person be searched. The railway platform is a public place. Thus, 'formation of belief on his part was imperative. He was also required to comply with the provisions contained the section 50 of the Act. 21. Thus, on the materials on record, in my opinion, it is evident that requirements of section 50 of the Act have not been complied with. 22. Although it is not necessary how to consider the question as to whether mere presence of a Gazetted Officer who accompanies the raiding party satisfies the requirements of section 50 of the Act, it appears that on a plain reading of the said provision the answer to the said question must be rendered in negative, the reasons where for are as follows : (1) An option has to be given to the accused before a search is conducted as would be evident from the words "is about to search any person". Such an option cannot be given if a Gazetted Officer is a member of the raiding party ; (2) Once an option is exercised, the accused is required to be taken to the nearest Gazetted Officer or the Magistrate, as the case may be, but the said provision would be made nugatory if a Gazetted Officer is already at the spot ; (3) In such an event, even the detention of the accused in terms of sub-section (2) of section 50 would be meaningless. (4) Sub-section (3) of section 50 mandates application of mind by the Gazetted Officer as regard the materials produced before him to arrive at a conclusion whether there exists any reasonable ground for searching the suspect. Only upon application of his mind, the authority would be able to come to a decision as to whether the person who is about to be searched should be released or a direction for search should be issued. Thus, the provision contemplates a decision by an independent officer and not an officer who is already a member of the raiding party and, thus, a biased person ; (5) The provision of section 50 having been enacted with a view to safeguard the interest of the accused, each provision must be strictly complied with ; (6) A penal statute, as is well known, must be strictly construed ; (7) It is the golden rule of interpretation of statute that the words employed therein must be read literally and be given a purposive meaning which would fulfil the object thereof. Any other construction, in my opinion, would not only defeat the purpose but shall render the provisions of sub-sections (2) and (3) of section 50 of the Act otiose, which should be avoided. However mere failure to comply with the said provision shall not vitiate the entire trial but the accused cannot be convicted only on the basis of recovery of the offending article in a search conducted in violation of .the said provisions. 23. However mere failure to comply with the said provision shall not vitiate the entire trial but the accused cannot be convicted only on the basis of recovery of the offending article in a search conducted in violation of .the said provisions. 23. It is not necessary to refer to the other decisions cited at the Bar in view of the recent pronouncement of the Apex Court in State of Punjab vs. Baldev Singh, reported in 1999(6) Supreme 159 whereupon considering all its earlier decisions it has been laid down ; "On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information without informing the person of his right that if he so required, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of section 50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigation agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigation authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy can not be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted An accused in entitled to a fair trial. A conviction resulting from an unfair trial is contrary of our concept of justice. The use of evidence collected in breach of the safeguards provided by section 50 at the trial would render the trial unfair. (5) That whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the court on the basis of evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of section 50 and particularly the safeguards provided therein were duly complied with it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched we do not express any opinion whether the provisions of section 50 are mandatory or directory but, hold that failure to inform the concerned person of his right as emanating from sub-section (1) of section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings against an accused, notwithstanding the recovery of that material during an illegal search ; (8) A presumption under section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act. (9) That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during a search of a person on prior information conducted in violation of the provisions of section 50 of the Act can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search. (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mals case and the broad observations made in Pirthi Chand’s case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. 24. It may be noticed that in that case reference to a Larger Bench was made in view of divergent views of the earlier judgments of the Apex court in State of Himachal Pradesh vs. Pirthi Chand & Anr., reported in 1996 (2) SCC 37 which was affirmed in the case of State of Punjab vs. Labh Singh, reported in 1996(5) SCC 520 that breach of section 50 does not affect the trial wherein the case of Ali Mustaffa Abdul Rahman Massa vs. State of Kerala, reported in 1994(6) SCC 569 it was held that breach of section 50 makes the conviction illegal. 25. The reference is answered accordingly. 26. The Appeal, is, therefore, allowed and the appellant is acquitted of the charges. He is directed to be set at liberty forthwith unless wanted in connection with any other case. Gitesh Ranjan Bhattacharjee. J. : 27. 25. The reference is answered accordingly. 26. The Appeal, is, therefore, allowed and the appellant is acquitted of the charges. He is directed to be set at liberty forthwith unless wanted in connection with any other case. Gitesh Ranjan Bhattacharjee. J. : 27. This criminal appeal against the orders of conviction and sentence passed by the learned Additional Sessions Judge, 3rd Court, Howrah under section 20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act, for short), 1985 was heard by a Division Bench of this court comprising Vidyanand, J. and S. K. Tewari, J. As there was a difference of opinion between the two learned Judges the appeal was referred to G. R. Bhattacharjee, J. as third Judge. Mainly on the question whether the presence of a Gazetted Officer in the raiding party constitutes sufficient compliance of section 50, NDPS Act and whether the Division Bench decision of this court in Ajoy Srivastava vs. State of W.B.; 1998 C.Cr.L.R. (Cal) 417 holding that mere presence of Gazetted Officer in the raiding party would not meet the requirement of section 50(1) reflects the correct proposition of law, the entire appeal has been referred to Larger Bench by the Id. third Judge under the proviso to section 392 Cr.P.C. and that is how the appeal is now before this Bench. 28. The prosecution case in short is that on 2.1.93 P.W.1 Sudarshan Chandra Parui, O.C. of Excise, E.I.B. Howrah and the other excise personnel who were on checking duty at Howrah Railway Station at about 6.10 a.m. intercepted the appellant-accused at platform no. 9 after the down Mithila Express came to the station and passengers were coming out of its compartments and on search in presence of witness and P.W. 4, Chiranjib Ganguly, DEC of Excise (Deputy Excise Collector) 13 sticks of Charas were recovered from the person of the appellant and the recovered sticks of Charas were seized and sample was taken and the accused was arrested and forwarded to court and subsequently charge-sheet was also submitted after obtaining the report of chemical examination. On trial by the learned trial court the accused was found guilty and was convicted under section 20(b) (ii) of the NDPS Act and sentenced to suffer R.I. for 10 years and' to a fine of Rs. 1 lac and in default R.I. for three months more. The appellant then preferred the present appeal. On trial by the learned trial court the accused was found guilty and was convicted under section 20(b) (ii) of the NDPS Act and sentenced to suffer R.I. for 10 years and' to a fine of Rs. 1 lac and in default R.I. for three months more. The appellant then preferred the present appeal. The cardinal question before us is whether section 50 of the NDPS Act was complied with in this case. Section 50 of the NDPS Act reads as follows :- "S.50. Conditions under which search of person 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 with-out 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." 29. At this stage we may look to the evidence on record. P.W.1 Sudarshan Chandra Parui is the O.C. of Excise, Howrah EIB. His evidence is that on 2.1.93 he along with his staff A.S.I. Md. Yunus, constable as Niranjan Ghosh, Tapan Kr. Roy, D. K. Sarkar, Bhuban Chandra Bera and DEC Chiranjib Ganguly had been doing duty at Howrah railway platform and in the morning at 6-10 a.m. on hearing an announcement of arrival of Down Mithila Express at platform no. 9 they took position near the engine side of that platform and were standing at a distance of about 3/4 cubits from one another and after the arrival of Mithila Express as the passengers were moving out constable Niranjan Ghosh intercepted the accused on suspicion and then he (the P.W. 1) was called by the said constable and he also called his staff with DEC and witness was also called. He says that DEC was there and in presence of the witness, the excise staff and the DEC he (P.W. 1) conducted search on the person of the accused and 13 sticks of Charas were recovered from the possession of the accused. P.W. 2 Niranjan Ghosh is an excise constable who was there at the time of search of the accused. He called the public witness. He says that in presence of that witness and the excise staff including DEC search was conducted on the person of the accused and. 13 sticks of Charas were recovered and seized. He says that O. C. prepared the seizure list in presence of the public witness and others. He also says in his examination in-chief that the DEC is a Gazetted Officer and the accused was told about the presence of Gazetted Officer. P.W. 3 Naresh Chakraborty is a hawker and vegetable vender. He was the public witness who was called there and in whose presence the search and recovery was made. In his cross-examination he says that he deposed earlier in such type of cases in court. He further says that he does business of hawking in the vicinity of Howrah Railway Station. P.W. 4, Chiranjib Ganguly is the Deputy Excise Collector (since retired with effect from 31.3.94). He says that on 2.1.93 he was in additional charge of Howrah EIB check post and on that day in the morning he was present at Howrah Railway Station for checking duty and he along with O.C., S.C. Parui, A.S.I. Md. Yunus, Constables Niranjan Ghosh, Tapan Kr. Roy and others reached platform no. 9 on hearing that Mithila Express will be coming at that platform and that the O.C. deputed the staff for checking purpose on that platform. He speaks about the search of the accused and recovery of 13 sticks of Charas from him in his presence. He says that the O.C. asked the suspected person that one Gazetted Officer was with them and he pointed to the witness (i.e. Chiranjib Ganguly, the Deputy Excise Collector). He further says that after observing all formalities of search, the O.C. searched the accused and then recovery of 13 sticks of Charas etc. was made from his possession. P.W. 5, Tapan Kr. Roy, is also an Excise Constable who speaks about search and seizure. P.W. 6, Dilip Kr. He further says that after observing all formalities of search, the O.C. searched the accused and then recovery of 13 sticks of Charas etc. was made from his possession. P.W. 5, Tapan Kr. Roy, is also an Excise Constable who speaks about search and seizure. P.W. 6, Dilip Kr. Seth, is the Assistant Chemical Examiner in the Department of Chemical Examiner, Govt. of West Bengal. He examined the sample sent to him and gave his finding that it was Charas. 30. From the evidence adduced on behalf of the persecution there is no doubt that Charas was recovered from the person of, the appellant on search on the concerned date at Howrah station platform no. 9. The search was made by P.W. 1, S.C. Parui, O.C. of Excise, Howrah E.I.B. in presence of witness, excise staff and, P.W. 4 Chirahjib Ganguly, Deputy Excise Collector who was a Gazetted Officer. It also appears from the evidence that at the time of search the accused was told that the search was being made in presence of P.W. 4, a Gazetted Officer who was present there at that time. It is contended on behalf of the appellant that the requirement of section 50 of the NDPS Act in this case has not been complied with because before or at the time of search the appellant-accused was not told about his right that he could opt for being searched in presence of a Gazetted Officer or a Magistrate and at any rate since there was no Magistrate present at the time of search and no option was given to the appellant that he could choose to be searched in presence of a Magistrate the mere fact that the petitioner might have been searched in presence of DEC, a Gazetted Officer does not meet the requirement of section 50. It is further contended that DEC being a member of the raiding party the fact that• the search was made in his presence does not also meet the requirement of section 50, irrespective of other aspects of the questions. It is also contended that there is no signature of the DEC in any of the connected papers showing or indicating his presence at the time of search and that being so oral evidence about his presence should not be relied upon or believed. It is also contended that there is no signature of the DEC in any of the connected papers showing or indicating his presence at the time of search and that being so oral evidence about his presence should not be relied upon or believed. Having regard to the evidence on record including the evidence of the DEC who is a responsible Gazetted Officer of the Excise Department I have no reason to disbelieve the prosecution case that the DEC was present at the time of search. It is true that the seizure list which was prepared after the search and seizure on the very date of occurrence does not contain the signature of the DEC, although it contains the signatures of others, yet in the remarks column of that seizure list ext. 1 it has been clearly recorded along with other statements recorded therein that DEC (H) was present at the time of detention/detection. In the charge-sheet also, I find, the name of the DEC has been included in the column of the names and addresses of the witnesses. There is therefore no reason, I reiterate, to disbelieve the presence of DEC at the time of search and seizure or to hold that his presence has been falsely imported at the time of hearing of the case as an afterthought. I hold that indeed he has present at the time of search and recovery. However although the learned Additional Public Prosecutor submitted that DEC was not a member of the raiding party yet in view of the facts, circumstances and evidence on record I find it difficult to accept this submission. From the evidence of P.W. 4, Chiranjib Ganguly, DEC himself it would appear that he along with the O.C., S.C. Parui and other excise staff was on checking duty at the Howrah railway station at that time. The appellant was apprehended at that time by some members of the checking party and the DEC was also associated with the operation. In the circumstances it will have to be held that the DEC was also a member of the checking party and the detention, search and recovery were the result of the activities of the checking party at that time and therefore it cannot be said that the DEC was not involved in the operation of the checking party. In the circumstances it will have to be held that the DEC was also a member of the checking party and the detention, search and recovery were the result of the activities of the checking party at that time and therefore it cannot be said that the DEC was not involved in the operation of the checking party. But then the question still remains that even if he were a member of the checking party or raiding party, would that by itself be fatal to the prosecution in the matter of compliance of section 50. 31. It has been contended on behalf of the appellant that at any rate the appellant at the time of search was not told about his right that he could opt for being searched in presence of a Gazetted Officer or a Magistrate as required by section 50, and that itself is fatal to the prosecution. It is not in dispute that P. W. 1, the O.C. of Excise, EIB is an officer authorised under section 42 to make' a search of a suspected person under the provisions of sections 41, 42 & 43. Section 50 does not debar or disqualify him from making a search of a suspected person under any of the said sections. The requirement of section 50 is that the person going to be searched has to be told about his right that instead of being searched by the officer authorised under section 42, in the absence of a Gazetted Officer or Magistrate he could opt for being searched in presence of a Gazetted Officer or a Magistrate. In Abdul Bhai Daud Bhai vs. State of Gujarat, (1998) 9 SCC 675 the Supreme Court observed that the mandatory provision of section 50 of the NDPS Act had not been followed in that case and therefore the conviction could not be sustained. What precisely was the lapse in respect of the factual aspect of the case however has not been mentioned in that decision. In Saiyad Mohd. What precisely was the lapse in respect of the factual aspect of the case however has not been mentioned in that decision. In Saiyad Mohd. Saiyad Umar Saiya vs. State of Gujarat, JT 1995 (3) SC 489 it was observed by the Supreme Court in paragraph 12 that the courts dealing with offences under the NDPS Act should be very careful to SCC that it is established to their satisfaction that the accused had been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. Since that was not done in the said case the accused was acquitted. It is however to be noticed that in the said case the search was made by two police sub-inspectors who were obviously not Gazetted Officers. Since they did not inform the accused before search that he had the right to choose to be searched in presence of a Gazetted Officer or a Magistrate there was obviously non-compliance of section 50 and that is why they were acquitted by the Supreme Court. In Ali Mustafa vs. State of Kerala, 1995 C.Cr.L.R. (SC) 1 also the search of the accused was made by a non-Gazetted Officer, namely a Sub-inspector of Police. But before the search the accused was not given any option as to whether he desired to be searched in presence of a Gazetted Officer or a Magistrate and accordingly the Supreme Court held that the mandatory provision of section 50 had not been complied with and therefore the conviction was vitiated. Similarly in Mohinder Kumar vs. State, Panaji, 1995 AIR SCW 1208 also search was held by a non-Gazetted Officer, namely, Sub-inspector of Police and the Supreme Court inter alia held in paragraph 3 that he did not adhere to the provisions of section 50 of the Act in that he did not inform the person to be searched if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. The conviction and sentence were set aside and the accused was acquitted by the Supreme Court. The conviction and sentence were set aside and the accused was acquitted by the Supreme Court. In State of Punjab vs. Balbir Singh, 1994 C.Cr.LR (SC) 121 at page 143 it has been held inter alia by the Supreme Court that on prior information the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 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 and that it is obligatory on the part of such officer to inform the person to be searched and 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 section 50 which is mandatory and would thus effect the prosecution case and vitiate the trial. The Supreme Court in that decision was considering a number of cases where the police officers made search. There is nothing in that decision which would indicate that the police officers making the search were of Gazetted rank. All the above mentioned decisions, it may be noted here, were cited by the learned Advocate for the appellant. 32. On the other hand the learned Additional Public Prosecutor has in this connection cited two decisions of the Supreme Court, namely Monohar Lal vs. State of Rajasthan, 1997 SCC (Cri) 505 and Raghbir Singh vs. State of Haryana, AIR 1996 SC 2926 . 'In Monohar Lal vs. State of Rajasthan (supra) the Supreme Court held that the provision of section 50 of the NDPS Act only requires the option to be given to the accused to say whether he would like to be searched in presence of a Gazetted Officer or a Magistrate, and on exercise of that option by the accused, it is for the officer concerned to have the search made in presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order' to avoid undue delay in completion of that exercise. It is further observed in that decision that it is clear from section 50 of the NDPS Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate and that the choice of the nearest Gazetted Officer or Magistrate has to be exercised by the officer making the search and not by the accused. In Raghbir Singh vs. State of Haryana (supra) it appears that the police party was not headed by any Gazetted Officer but was led by the station house officer, Jakhal and the accused was given the option of being searched by the said police officer or before a Gazetted Officer and the accused opted to be searched before a Gazetted Officer and accordingly he was searched in presence of a Gazetted Officer and opium was recovered. The accused was convicted on trial. It appears that before the Supreme Court a plea was taken by the appellant-accused that he was not told that he could opt to be searched before a Gazetted Officer or before a Magistrate and therefore the provisions of section 50 were not satisfied. As we have seen, in that case the accused was given the option to be searched by the police officer who held the raid or in presence of a Gazetted Officer. Nothing was told to the accused about option to be searched before a Magistrate. The Supreme Court in that decision in paragraph 11 held that the option under section 50 of the Act is only of being searched in presence of senior officer (Gazetted Officer or Magistrate) and there is no further option of being searched in presence of either a Gazetted Officer or of a Magistrate. It was further observed by the Supreme Court in that connection that the use of the word 'nearest' in section 50 is relevant and the search has to be conducted at the earliest and once the person to be searched, opts to be searched in the presence of such senior officer it is for the police officer who is to conduct the search to conduct it in presence of whoever is the most conveniently available Gazetted Officer or 'Magistrate. In view of the Supreme Court decisions in Raghbir Singh vs. State of Haryana and Monohar Lal vs. State of Rajasthan (supra) there is no scope of raising any contention that the option given to the accused for being searched in presence of a Gazetted Officer without mentioning anything about Magistrate, will be only a partial officer or option and will therefore be bad in law in the matter of compliance of mandatory provision of section 50. Any such contention is wholly untenable in view of the Supreme Court decisions. There is no option with the accused to be searched either in the presence of the Gazetted Officer or in the, presence of the Magistrate at his choice. That being so there is good compliance of section 50 if the accused is given an option to be searched in presence of a Gazetted Officer without mentioning anything about Magistrate, and that is precisely what happened in the said Supreme Court decision in Raghbir Singh vs. State of Haryana (supra). The theory that any such option is bad in law being partial option as propounded in some decisions of some High Courts (such as Aswini vs. State of Orissa, 1996 Cr. L.J. 900, Sardar Singh vs. State of Rajasthan, 1996 Cr.L.J. 3186, Rajinder Kumar vs. State, 1998 Cr.L.J. 51, Neki Ram vs. State of Haryana, 1998 Cr.L.J. 199, Guljar Singh vs. State of Haryana, 1998 (4) A.I. Cr.L.R. 386, R. Gurnam Singh vs. State of Punjab, 1998 (4) A.I. Cr.L.R. 143, Mohinder Singh vs. State of Haryana, 1999 (1) A.I. Cr.L.R. 81) is definitely not good law on this point in view of the Supreme Court decision in Raghbir Singh vs. State of Haryana (supra) and the other decisions mentioned therein. That no option to be searched in presence of a Magistrate was given or pointed out to the appellant in our present case is therefore of no consequence because the search in the present case has been conducted in the presence of a Gazetted Officer, namely, the Deputy Collector of Excise. 33. The question that has still to be considered in' our case is whether the search in presence of a Gazetted Officer of the same department to which the searching officer belongs is an adequate compliance of section 50. 33. The question that has still to be considered in' our case is whether the search in presence of a Gazetted Officer of the same department to which the searching officer belongs is an adequate compliance of section 50. In my considered view that is an adequate compliance of section 50, having regard to the provisions of section 50 itself and the decisions of the Supreme Court in Raghbir Singh vs. State of Haryana (supra), etc. But however the decision of a Division Bench of this court in Ajoy Srivastava vs. State of West Bengal, 1998 C.Cr.L.R. (Cal) 417 has been relied upon by the learned Advocate for the appellant wherein it has been held that mere presence of Gazetted Officers in the raiding party would not meet the requirements of section 50(1), particularly when the option required under section 50(1) was not given to the accused. The Division Bench, it seems, preferred to accept the, view taken by the Karnataka High Court in the matter in D. Singh vs. State of Karnataka, 1993 Cr.L.J. 94 rather than the contrary views expressed in some decisions of the Delhi High Court and Orissa High Court. On the other hand the learned Additional Public Prosecutor has relied upon the Gauhati High Court decision in Md. Jainul Abdin vs. State of Manipur, 1991 Cr.L.J. 696 and the Bombay High Court decision in R.D. Makwana vs. State of Maharashtra, 1994 Cr.L.J. 1987. in support of his submission that the presence of a Gazetted Officer in the raiding party will suffice to meet the requirement of section 50 of the NDPS Act. It is clear from the Supreme Court decision in Raghbir Singh vs. State of Haryana and Monohar Lal vs. State of Rajasthan (supra) that the choice is not with the accused, as between the Gazetted Officer and the Magistrate, as to in whose presence he should be searched. This is a choice' of the searching officer depending upon the convenience of quick availability. In .view of those decisions search is valid if made in presence of a Gazetted Officer pursuant to an acceptance of the offer of search in presence of a Gazetted Officer without even a whisper being made to the accused about Magistrate, as happened in the case considered by the Supreme Court in Raghbir Singh vs. State of Haryana. In .view of those decisions search is valid if made in presence of a Gazetted Officer pursuant to an acceptance of the offer of search in presence of a Gazetted Officer without even a whisper being made to the accused about Magistrate, as happened in the case considered by the Supreme Court in Raghbir Singh vs. State of Haryana. It has to be noticed that section 50 of the NDPS Act does not reflect any distrust in respect of an authorised non-Gazetted Officer in the matter of searching a suspected person under the NDPS Act. It is of great significance to note that section 50 does not debar a competent non-Gazetted Officer from making a search of a suspected person which means that the legislature has no distrust for such non-Gazetted Officer and search is valid if inspite of offer the accused does not opt for being searched in presence of a senor officer (Gazetted Officer, Magistrate). What section 50 provides is that the accused for his own satisfaction may opt for being searched in presence of a Gazetted Officer or a Magistrate rather than by a competent non-Gazetted Officer in the absence of any such senior officer. This provision of section 50 is not embedded in any distrust for any class of officers, but is intended to give 'only an option to the accused to be searched in presence of some officer of higher rank for the satisfaction of the accused himself. If inspite of being informed of his right under section 50 the accused does not opt for being searched in presence of any senior officer of higher rank (Gazetted Officer, Magistrate), or opts to consign himself to the competent non-Gazetted Officer for being searched by the latter even in the absence of such senior officer, in that event also the search by the competent non-Gazetted Officer meets the requirement of section 50. What we are trying to project is that the competent non Gazetted Officer is not inherently disqualified by section 50 to hold the search. The section rather only gives an option to the accused to be searched in presence of an officer of still higher rank. What we are trying to project is that the competent non Gazetted Officer is not inherently disqualified by section 50 to hold the search. The section rather only gives an option to the accused to be searched in presence of an officer of still higher rank. Keeping that aspect in view it is evident that if the• raiding party or search party itself has a Gazetted Officer and the search is conducted in his presence that is sufficient compliance of section 50 inasmuch as it will be illogical to totally disqualify a Gazetted Officer of the raiding party or search party when even a competent Officer of non-Gazetted rank can also hold a valid search if in spite of option given, the accused prefers to be searched by such non-Gazetted Officer without the presence of a senior officer of higher rank' or does not exercise any option or remains unconcerned. The legislature also definitely did not intend that ignoring the presence of a Gazetted Officer in the raid or search party the direction to make the search will have to be obtained by approaching another Gazetted Officer of the same or even inferior rank elsewhere of a different department. Also the emphasis in the provisions of section 50 is not at all on the department to which such senior officer belongs so that such senior officer and the searching officer must belong to different departments. The emphasis is rather on rank or for that matter the seniority in rank of the concerned officer and this has also been pointed out in the decision of Raghbir Singh vs. State of Haryana (supra), as we have seen. 1f the legislature so intended it could very well have stated in the section itself that the Gazetted Officer in whose presence the search can be made must belong to a different department. But the legislature does not say that. As we have seen the legislature also does not hold in distrust even a competent officer of non-gazette rank. 34. Read as a whole and keeping in view the object behind and the relevant decisions of the Supreme Court discussed above it is evident that what section 50 requires is that the accused should be searched in presence of a senior officer of higher rank mentioned therein if and only if he so desires. 34. Read as a whole and keeping in view the object behind and the relevant decisions of the Supreme Court discussed above it is evident that what section 50 requires is that the accused should be searched in presence of a senior officer of higher rank mentioned therein if and only if he so desires. That is the core requirement of section 50 and that must be complied with. The question, of offer of option to the accused arises for ensuring that the said core requirement is not violated deliberately or by oblivion. If the said core requirement is complied with by holding the search in presence of a Gazetted Officer who mayor may not be a member of the searching party, the further question whether he was given option to be searched in presence of Gazetted Officer or Magistrate becomes wholly redundant and immaterial. I am therefore of the view that if the raiding party or searching party has a Gazetted Officer and the search is made in his presence, that itself is a sufficient and substantial compliance of the mandatory provision of the section 50 of the NDPS Act. In such a situation the question whether the search which was in fact held in the presence of a Gazetted Officer was preceded by any offer of option to the accused loses all its practical utility and rather silently recedes to the vanishing point in the insignificance of futility. For reasons recorded above I am, with respect, unable to persuade myself to agree with the contrary view taken by a learned single Judge in the decision of the Punjab & Haryana High Court in Raghbir vs. State of Haryana, 1999 (1) A.I. Cr.L.R. 698 where the learned Judge proceeded to apply the principle of administrative law that where the legislature has intended a particular act to be done in a particular, manner the same should be done in that very manner and in no other manner, rather than applying the 'test of prejudice and failure of justice' which is apposite in judging the effect of an irregularity of act in a sphere governed by the principles of criminal jurisprudence. The Division Bench decisions of this court in Ajoy Srivastava vs. State of West Bengal, 1998 C.Cr.L.R. (Cal) 417 and in Antony Okoye vs. State, 1997 C.Cr.L.R. (Cal) 22 taking a similar contrary view is also not good law so far as this point is concerned. 35. The learned Advocate for the appellant has attracted out attention to the Single Bench decision of the Punjab & Haryana High Court in Mehboob Khan vs. State, 1999 (1) A.I. Cr.L.R. 603 where it has been held that the statement made by the accused in exercising his option under section 50, NDPS. Act should be recorded in writing. All that we need to say is that section 50 does not contain any such mandatory requirement that notice of option should be given to the accused in writing or the statement made by the accused in exercise of such option should be recorded in writing. The absence of any written record in this respect does not necessarily nullify the oral evidence on the point. It is rather a matter of appreciation of evidence in the back drop of the facts, circumstances and evidence obtaining in a particular case. 36. In the recent Supreme Court decision in State of Punjab vs. Baldev Singh etc., 1999 (6) Supreme 159 , the obligation of the empowered officer to inform the person to be searched about his right to opt for being searched before a Gazetted Officer or a Magistrate has been pointed out. But in this decision the Supreme Court refrained from expressing any option as to whether the provisions of section 50 NDPS Act are mandatory or not (vide, para 31, ibid). In fact, it also did not fall for consideration of the Supreme Court in the said decision whether there will be substantial compliance with the core requirement of section 50, NDPS Act where the search has in fact been made in the presence of a Gazetted Officer who might or might not have been a member of the search party. In fact, it also did not fall for consideration of the Supreme Court in the said decision whether there will be substantial compliance with the core requirement of section 50, NDPS Act where the search has in fact been made in the presence of a Gazetted Officer who might or might not have been a member of the search party. The said question not having fallen for consideration of the Supreme Court in the said decision and the Supreme Court not having rendered any decision on that point, I am of the humble opinion that this court is entitled to take its decision in the matter and that being so I am of the opinion for reasons discussed above that there has been sufficient and substantial compliance of the core requirement of section 50 NDPS Act in this case inasmuch as the search in this case was made in the presence of a Gazetted Officer accompanying the search party. 37. It has been contended by the learned Additional Public Prosecutor that section 50 is not attracted in case of chance recovery and in the present case it is an instance of chance recovery as there was no prior information. In support of his submission he relies upon the decision of the Supreme Court in State of Punjab vs. Balbir Singh. 1994 SCC (Cri) 634, particularly paragraph 25 of the said decision. On a closer study of the said decision it will however be evident that the contention of learned Additional Public Prosecutor is not correct. There is no doubt that sub-paragraph (1) of paragraph 25 of that decision speaks of and deals with chance recovery. But the same is applicable only to a police officer, who without any prior information under the provisions of the NDPS Act, makes a chance recovery of any narcotic drug or psychotropic substance during search or arrest in the normal course of investigation into an offence or suspected offence as , provided under the provisions of the Cr.P.C. This sub-paragraph (1) is not applicable to any officer of any other department who is not a police officer and as such has no scope to make any search or arrest in normal court of investigation into an offence under Cr.P.C. which a police officer can do. Sub-paragraph (1) of paragraph 25 of that decision applies, when police officer in normal course of investigation into any offence, say of theft or murder, etc. under the provisions of Cr.P.C. happens to recover a narcotic drug by chance. This has no application to any officer of any other department who is not a police officer, and indeed such an officer has no scope to make any investigation under Cr.P.C. and to make any chance recovery in course of such investigation. Sub-paragraph (5) of paragraph 25 of that decision no doubt speaks of empowered officers acting on prior information. But it has to be noticed that the, said sub-paragraph (5) only contemplates empowered officers acting under section 41(2) or section 42 on prior information. But apart from section 41 and section 42 there exists another relevant section, namely section 43 which has been left outside the ambit of sub-paragraph (5) of paragraph 25 of the said Supreme Court decision. Section 43 inter alia contemplates a situation where an officer of any of the departments mentioned in section 42 may detain and search any person whom he has reason to believe to have committed an offence punishable under the NDPS Act. Now suspicious movement of a person or suspicious circumstances associated with a person may afford reason to an officer to believe that such an offence has been committed by such person and in, that event he may detain and search such person under section 43. This is precisely what happened in our present case also. Now section 50 is also attracted where section 43 is attracted. It therefore cannot be said that in the facts and circumstances of the present case section 50 was not attracted. It was indeed attracted. But as we have already seen, there has been sufficient and substantial compliance of section 50 in the present case. In view of the elaborate discussion on different aspects of facts and law it is held that there is no merit in the present appeal. The appeal is accordingly dismissed. Debi Prasad Sengupta. J.: 38. This criminal appeal is against the order of conviction arid sentence passed by the learned Additional Sessions Judge, 3rd Court, Howrah under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal is accordingly dismissed. Debi Prasad Sengupta. J.: 38. This criminal appeal is against the order of conviction arid sentence passed by the learned Additional Sessions Judge, 3rd Court, Howrah under section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appeal was heard by a Division Bench of this Court and since there was a difference of opinion between the two learned Judges, the same was referred to the learned Third Judge. 39. At the time of hearing of the said appeal before the learned Single Judge of this Court a judgment was cited before him reported in 1998 C.Cr.L.R. (Cal) 417 (Ajoy Srivastava vs. The State of West Bengal) wherein it was held by a Division Bench of this Court that mere presence of a Gazetted Officer in the raiding party would not meet the requirements of section 50(1) of the NDPS Act, particularly when the option required under section 50(1) was not given to the accused. However, the learned Single Judge was of the view that if the raiding party or search party has a Gazetted Officer and the search is made in his presence, that itself is sufficient compliance of the mandatory provision of section 50 of the NDPS Act. Since a contrary view was taken by the Division Bench of this court in the case of Ajoy Srivastava vs. State of West Bengal, 1998 C. Cr.L.R. (Cal) 417, the learned Judge thought that the entire appeal should be heard and decided by a Larger Bench in view of the provision laid down in the proviso to section 392 of the Code of Criminal Procedure. 40. The prosecution case in short is that on 2.1.93 P.W.1 Sudarshan Chandra Parui, Officer-in-Charge of Excise, E.I.B., Howrah and other excise personnel who were on checking duty at Howrah railway station at about 6.10 a.m. intercepted the accused appellant at platform No.9 after the "Down Mithila' Express" arrived at the said platform and passengers were coming out of its compartments. On search in presence of witnesses and P.W.4 Chiranjib Ganguly, D.E.C., Excise (Deputy Excise Collector) 13 sticks of 'Charas'• were recovered from the person of the appellant. Recovered sticks of Charas were seized, sample was taken and accused was arrested and forwarded to the court. 41. Mr. On search in presence of witnesses and P.W.4 Chiranjib Ganguly, D.E.C., Excise (Deputy Excise Collector) 13 sticks of 'Charas'• were recovered from the person of the appellant. Recovered sticks of Charas were seized, sample was taken and accused was arrested and forwarded to the court. 41. Mr. Partha Sarathi Bhattacharya, learned Advocate appearing for the appellant submits that the requirements of section 50 of the NDPS Act has not been complied with because before or at the time of search the accused appellant was not told about his valuable right to be searched in presence of a Gazetted Officer or a Magistrate. The learned Counsel submits that Deputy Excise Collector being a member of the raiding party, the search in his presence does not meet the requirement of section 50 of the Act. It is also submitted that there is no signature of the D.E.C. in any of the connected papers showing or indicating his presence at the time of search and that being so oral evidence about his presence at the time of search should not be relied upon. 42. In support of his contention Mr. Bhattacharya relies on a judgment reported in 1994 SCC (Cri.) 634. In paragraph 16 of the said judgment it was held by the Hon'ble Apex Court as follows:- "In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given' to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right." 43. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right." 43. In paragraph 20 of the said judgment it was held as follows :- "When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under section 50 in the context is all the more important and valuable. Therefore, it is to be taken as 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 of section 50 are mandatory." 44. Mr. Bhattacharya next relies on' a judgment reported in J.T. 1995 (3) SC 489 (Saiyad Mohammad, Saiyad Umar Saiyad & Ors. vs. State of Gujarat), wherein affirming the judgment of Balbir Singh's case (1994 SCC (Cri) 634) it was held by a three Judge Bench of the Hon'ble Apex Court that the provision of section 50(1) of the Act is 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. In the said case search was conducted by two police Sub-Inspectors. Since they failed to inform the accused before search about his right to be searched in presence of a Gazetted Officer or a Magistrate, they were acquitted by the Hon'ble Supreme Court for non-compliance of section 50 of the Act. 45. In the case of Antony Okoye vs. The State, reported in 1997 C.Cr. L.R. (Cal) 22, the Division Bench of this Court relying on the case of Balbir Singh [1994 SCC (Cri) 634] held that the provision of section 50 of the Act is mandatory and it is the duty of the officer concerned 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. Since there was non-compliance of section 50 of the- Act, the appeal was allowed and the appellant was acquitted. 46. The next judgment relied on by the appellant's learned Advocate is reported in 1999 (1) All India Criminal Reporter, page 698, in which the learned Single Judge of Punjab and Haryana High Court held that according to the provisions of section 50 of the Act it is incumbent on the part of the I.O. to apprise the person to be searched of his right as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. Once the provisions of section 50 of the Act have not been complied with, it will vitiate the recovery as well as the trial. In the case of Ali Mustafa Abdul Rahaman Moosa vs. The State of Kerala [1995 Cal. Cr.L.R. (SC) 1] the Hon'ble Apex Court relying on the judgment in Balbir Singh's case [1994 SCC (Cri) 634] held that mandatory provision of section 50 of the Act had not been complied with as the accused was not given any option as to whether he desired to be searched in presence of a Gazetted Officer or a Magistrate and accordingly conviction was set aside. 47. The ratio of all the judgments referred to above is that section 50 of the Act is a mandatory provision and non-compliance of the same vitiates the order of conviction. It is the bounden duty of the officer concerned, intending to search any person" to inform the person to be searched that he has got a valuable right that if he' so chooses he will be searched in the presence of a Gazetted Officer or a Magistrate. 48. Mr. Sudipto Moitra learned Additional Public Prosecutor relies on a judgment reported in AIR 1996 SC 2926 (Raghbir Singh vs. State of Haryana), in which it was held by the Hon'ble Apex Court as follows:- "The option under section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or being searched in the presence of a Magistrate. The use of the word 'nearest' in section 50 is relevant. There is no further option of being searched in the presence of either a Gazetted Officer or being searched in the presence of a Magistrate. The use of the word 'nearest' in section 50 is relevant. The 'search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search, to conduct it in the presence of whoever is the most conveniently available Gazetted Officer or Magistrate." In the case of MOl1oharlal vs. The State of Rajasthan [1997 SCC (Cri) 505], relied upon by Mr Moitra, it was held by the Hon'ble Supreme Court that the provision of section 50 of the NDPS Act only requires the option to be given to the accused as to whether he would like to be searched in presence of a Gazetted Officer or a Magistrate. Once such option is exercised by the accused it is for the officer concerned to conduct the search in presence of the nearest Gazetted Officer or the nearest Magistrate whoever is conveniently available for the purpose in order to avoid undue delay. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused. Relying upon the aforesaid two judgments it is submitted by Mr. Moitra that the search and seizure conducted in presence of the Deputy Collector of Excise, who is a Gazetted Officer, was in compliance of the mandatory provision of section 50 of the NDPS Act. According to Mr. Moitra simply because no option to be searched in presence of a Magistrate was given to the appellant, the search can not be said to be in violation of mandatory provision of section 50 of the NDPS Act. 49. Now, the point which is to be decided by us is whether the search in presence of a Gazetted Officer of the same department, to which the searching officer belongs, is an adequate compliance of section 50 of the NDPS Act. Learned Single Judge of this court in his judgment has expressed his view that if the raiding party or search party has a Gazetted Officer and the search is conducted in his presence that itself is sufficient compliance of the mandatory provision of the Act. Learned Single Judge of this court in his judgment has expressed his view that if the raiding party or search party has a Gazetted Officer and the search is conducted in his presence that itself is sufficient compliance of the mandatory provision of the Act. As it has already been stated, such view is contrary to the view taken by a Division Bench of this Court in 1998 C. Cr. L.R. (Cal) 417 (Ajoy Srivastava vs. The State of West Bengal L 50. Let us now examine the provisions of section 50 of the Narcotic Drugs and Psychotropic Substances Act. Section 50 of the NDPS Act reads as follows: 50. Conditions under which search of persons shall be conducted.-(l) When any officer duly authorised under section 42 is about to search any person under the provision of section 41, section 42 or section 43, he shall if such person so requires, take such person with-out 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." 51. The words and expression used in section 50 are of great significance and do indicate its characteristics. The starting point of section 50 is indicated in sub-section (1) in the words, "is about to search any person under the provisions of section 41, section 42 or section 43.........". It is at that point of time the authorised officer is to inform the person to be searched that he has a right to be taken without unnecessary delay to the nearest Gazetted Officer of the departments mentioned in section 42 or the nearest Magistrate. Once the right is availed of by the person concerned search by the authorised officer is suspended and in view of the provisions of sub-section (2) of section 50, the officer gets the right to detain such person till such time the person is brought to the nearest Gazetted Officer or the nearest Magistrate as mentioned in sub-section (1). Once the right is availed of by the person concerned search by the authorised officer is suspended and in view of the provisions of sub-section (2) of section 50, the officer gets the right to detain such person till such time the person is brought to the nearest Gazetted Officer or the nearest Magistrate as mentioned in sub-section (1). What is significant from a reading of sub-sections (1) and (2) is that the officer who was about to search, cannot search the person once the requisition is made for being taken before the Gazetted Officer or the Magistrate and the person concerned continues to be detained by the authorised officer till he is taken before the Gazetted Officer or the Magistrate. Situation which emerges from a reading of sub-sections (1) and (2) of section 50 is to the effect that the person is deprived of his liberty and of free movement and continues to be under the control of the officer who has arrested him and that the search is not to be made till a decision is reached under sub-section (3) of section 50. Sub-section (3) of section 50 is the provision which indicates the authority of the Gazetted Officer or the Magistrate in the matter relating to the search to be made. The words employed in sub-section (3) unequivocally and in the most explicit manner disclose the legislative intent in providing opportunity to the person concerned referred to in sub-section (1) of section 50. Sub-section (3) indicates that the Gazetted Officer or the Magistrate before whom the person is brought shall, "if he sees no reasonable ground for search forthwith discharge the person, but otherwise shall direct search to be made." Implication of the decision under 'sub-section (3) is enormous. If the decision is in favour of the person concerned, he regains his liberty, exonerates himself from accusation of having Narcotic Drugs and Psychotropic Substances in his possession illicitly and becomes a free man with no investigation to be continued against him. Since the matter relates to liberty of a citizen, procedure followed in regard thereto must be fair, just, non-oppressive and non-arbitrary in order to fulfil the requirement of Article 21 of the Constitution of India. 52. Since the matter relates to liberty of a citizen, procedure followed in regard thereto must be fair, just, non-oppressive and non-arbitrary in order to fulfil the requirement of Article 21 of the Constitution of India. 52. To ascertain as to whether a Gazetted Officer, who is a member of the raiding party which includes officer who detained the person and intends to search him, is entitled to take the decision under section 50(3) of the NDPS Act or not, other sections of the NDPS Act are required to be looked into. Section 56 of the NDPS Act reads as follows ;- "Obligation of officers to assist each other.-All officers of the several departments mentioned in section 42 shall upon notice given or request made, be legally bound to assist each other in carrying out the provisions of this Act." 53. Section 59(1) of the NDPS Act runs as follows:- "Failure of officer in duty or his connivance at the contravention of the" provisions of this Act.-(J) Any officer on who any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from the duties of his office shall unless he has obtained the express written permission of his official superior or has other lawful excuse for so doing, be punishable with imprisonment for a term which may extend to one year or with fine or with both.". 54. An analysis of the sections aforementioned are necessary in order to arrive at our conclusion with regard to the maintenance of fairness, and/or justness in the procedure to be followed in arriving at a decision under section 50 of the NDPS Act. Section 56 of the NDPS Act is mandatory one compelling the officers of several departments mentioned in section 42 of the Act to assist each other in carrying out the provisions of the Act. Noticeable in the section is the reference to section 42 of the Act which comprises of both Gazetted and non-Gazetted Officers and in view of the legislative command incorporated in section 56 of the Act all these officers are bound to assist each other in carrying out the provisions of the Act. Noticeable in the section is the reference to section 42 of the Act which comprises of both Gazetted and non-Gazetted Officers and in view of the legislative command incorporated in section 56 of the Act all these officers are bound to assist each other in carrying out the provisions of the Act. Section 59 provides for imposition of penalty on the negligent or the reluctant or the non-performing officer unless he has a lawful excuse for failure to perform the duty entrusted on him or imposed upon him by or under the NDPS Act. A joint reading of sections 56 and 59 lead to the conclusion that every officer of the departments mentioned in section 42 by virtue of the mandatory imposition of duty under section 56 is bound to assist each other in carrying out the provisions of the Act which definitely includes arrest of a person, search, and/or seizure of any Narcotic Drug and Psychotropic Substances from the custody of such person. Section 59 on the other hand takes a serious view of the failure on the part of the officer in rendering his assistance in carrying out the provisions of the Act without any lawful exercise or cause. Section 58 is designed to provide a check on arbitrary or unlawful exercise of power by, any person (which definitely includes an officer) empowered under section 42 or section 43 or section 44 to act or to exercise powers under the NDPS Act. Section 58 is very clear and specific in its application against vexatious entry, search, seizure or arrest and the provision of this section is meant for protection against vexatious entry, search, seizure and arrest. This provision is salutary and serves as a warning signal to those officers who may in their over-jealousness and in abuse of their official power vested in them may act to the prejudice of any person traveling beyond the limit of their legal authority. 55. Now in the' context of sections 56, 58 and 59 of the NDPS Act, we will examine to conclude the moot question whether the presence of Gazetted Officer in the raiding party and/or Gazetted Officer who is already there in the company of the officer who intends to search a person amounts to compliance with the provisions of section 50 or not. It has been already stated that anything done or purported to be done under the provisions of section 50 must maintain the element of fairness and a clear unambiguous exhibition of neutrality, When a Gazetted Officer of the departments mentioned in section 42 is in the company of an officer who intends to make a search, it is clear and can be assumed without any hesitation that the Gazetted Officer is in the know of the prior information received by the officer who is going to search the person concerned and it is this prior information with regard to the possible seizure of Narcotic Drugs and Psychotropic Substances that has led the Gazetted Officer mentioned in section 42 to accompany the other officer and in doing so he is bound by the mandate of section 56 to assist other officers in carrying out the provisions of the Act, If he does not do so without any legal cause, he subjects himself to rigours of section 59 of the Act. If a Gazetted Officer is already there in the company of the officer who intends to search a person, he is at the time of joining the company of the searching officer is of the view that what is required of him by law is to assist the searching officer in carrying out the search under the provisions of the Act. He then espouses the same cause that the searching officer pursues and intends to achieve. He is not merely the companion Gazetted Officer but an official companion in achieving the object of search and seizure. Neutrality in such a situation is hard to expect., If neutrality is to be maintained, fairness is to be imposed and the right of the person under section 50 of the NDPS Act is not to be rendered illusory or redundant, no accompanying Gazetted Officer of any of the departments under section 42 of the NDPS Act should be allowed the authority to take a decision under sub-section (3) of section 50 of the NDPS Act. 56. It is one of the established canon and/or rules of interpretation of statute that the meaning of a word used in a• section can be ascertained, understood and appreciated taking into account the meaning of the word or words proceeding or following the word to be interpreted. 56. It is one of the established canon and/or rules of interpretation of statute that the meaning of a word used in a• section can be ascertained, understood and appreciated taking into account the meaning of the word or words proceeding or following the word to be interpreted. It is worth taking note of that both in sub-sections (2) and (3) word, "Gazetted Officer" is followed by the words "or the Magistrate". The word, "Magistrate" is an indication of neutrality. The word, "Magistrate" suggests a functionary which is not involved either in the pursuit of prior information or making a search, or receipt of information of illicit possession of Narcotic Drugs and Psychotropic Substances by any person or involve in the act of detaining such person for the purpose of search. Parliament has consciously used the word "Magistrate" and has thus selected a "Magistrate" to be one of the functionaries under section 50. When neutrality has been imposed and element of fairness is attached in the process of taking a decision under section 50 by introducing the participation of the Magistrate thereto, should it not be reasonable to expect that some neutrality or fairness ought to be maintained in the participation of Gazetted Officer of any of the departments mentioned in section 42 by ensuring that he is equally a person who is not involved either in the receiving of prior information, detention of the person to be searched and/or in accompanying the searching officer as per the provisions .of the NDPS Act? In the provisions of law engrafted in section 50 on being considered with the concept of personal liberty and the indispensable' requirement of maintenance of fairness, non-arbitrariness and non-oppressiveness in the application of the' procedure established by law, it can be held unhesitantly that a Gazetted Officer who accompanies the party of police officers or the officers who are authorised under the Act to search, seizure and arrest and investigate the offences under the Act, is not entitled to take a decision under section 50(3) of the Act and any option given to the person concerned that he can be taken before such Gazetted Officer for a decision under sub-section (3) is against the spirit and letter of section 50 and does not also conform to the requirement of fair, just and non-arbitrary procedure established by law. 57. 57. In section 50 sub-section (1) the words "take such person" are very important, In sub-section (3) the words "the Gazetted Officer or Magistrate before whom any such person is brought" are also equally important. The words "take" and "brought" used in sub-sections (1) and (3) as aforesaid indicate that the person arrested by the raiding party has to be "taken" before a Gazetted Officer or a Magistrate and if the accused is "brought" before a Magistrate or a Gazetted Officer and if he sees no reasonable ground for search, such person shall be discharged immediately if there are reasons for taking search, such Magistrate or Gazetted Officer shall direct the search to be conducted in his presence. From the language of the section it becomes evident that the legislature has taken a special care to SCC that search of the accused should be taken before an independent person, who may be a Magistrate or a Gazetted Officer. Such an independent person shall ensure that the accused should get all necessary protection guaranteed by the law.' Taking a Gazetted Officer with the raiding party make's such officer indirectly interested in the success of the raid and such an officer can never be said to' be an independent person. 58. It has been repeatedly held by the Hon'ble Apex Court that right of being searched before a Magistrate or a Gazetted Officer is a valuable right which is given to a person accused of an offence under the NDPS Act. The investigating agency should never, be allowed to frustrate the intention of the legislature. Taking a Gazetted Officer with the raiding party, which has now become a common practice in almost all cases of search and seizure under the Act, is a dubious method which is adopted by the raiding party for the purpose of showing that the raiding party took all effective measures to comply with the mandatory provisions of section 50 of the NDPS Act. In our considered opinion mere presence of a Gazetted Officer of the same department, to, which the searching officer belongs, is not an adequate compliance of section 50 of the NDPS Act. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid. 59. For strict compliance of section 50 of the Act a search must be conducted in presence of a Magistrate or a Gazetted Officer who is totally independent and is not in any way interested in the success of the raid. 59. In the judgments referred to by Mr. Moitra the Hon'ble Supreme Court was not called upon to decide the question or proposition, which have been dealt with herein. 60. Now, let us discuss the evidence of the prosecution witnesses and consider the' circumstances in which the recovery was made by the raiding party. From the evidence adduced by the prosecution it becomes clear that on 2.1.93 P.W.1 Sudarshan Chandra Parui, Officer-in-Charge Excise, KI.B., Howrah and other excise personnel intercepted the appellant at Howrah station platform No. 9 after "Down Mithila Express" arrived at the said platform and passengers were coming out of its compartments. On search, it is the case of the prosecution, in presence of P.W.4 who is a Gazetted officer, 13 sticks of "charas" were recovered from the person of the appellant. 61. From the evidence of P.W.1 it appears that he deposed in the court that D.E.C. was present at the time of search and in his presence search was conducted. But, in our opinion, this is not sufficient compliance of mandatory provision of section 50 of the NDPS Act. There is nothing in the evidence of P.W.1 to show that he told the accused that such D.KC. is a Gazetted Officer or that the accused had a valuable right to be searched in presence of a Gazetted Officer or a Magistrate as required under section 50 of the NDPS Act. Mere presence of a Gazetted Officer in the raiding party is not sufficient compliance of section 50 of the Act. P.W.2 who is an Excise Constable stated in his evidence that the accused was told about the presence of Gazetted Officer. But for the same reason, as we discussed above, we cannot accept such type of evidence and we hold that this is not sufficient compliance of section 50 of the Act. P.W.3 has not stated anything about the presence of a Gazetted Officer with the raiding party. P.W.4, the Deputy Excise Collector himself stated in his cross-examination "there is no signature of mine either in the FIR or on any documents. P.W.3 has not stated anything about the presence of a Gazetted Officer with the raiding party. P.W.4, the Deputy Excise Collector himself stated in his cross-examination "there is no signature of mine either in the FIR or on any documents. There is no document to show my presence on that day." In view of such evidence of P.W.4 it must be held that there is every doubt regarding the presence of P.W.4 the Deputy Excise Collector, with the raiding party at the time of search and seizure and in our opinion such benefit of doubt must go in favour of the accused. 62. Even assuming that P.W.4 was present with the raiding party, we are of the opinion, that there was no compliance of section 50 of the NDPS Act as there is nothing in the evidence to show that the accused was informed about his valuable right to be searched in presence of a Gazetted Officer or a Magistrate, nor he was given any option to be searched in presence of such Gazetted Officer or a Magistrate. The appellant was never given opportunity to give his option as to whether he wanted to take the assistance of a Magistrate or a Gazetted Officer and this, in our opinion, is non-compliance of section 50 of the NDPS Act. 63. In the result the appeal is allowed. Order of conviction and sentence is hereby set aside. The appellant is acquitted of the charges framed against him. The case property stands confiscated to the State. The accused appellant may be set at liberty forthwith if not wanted or convicted in any other case. 64. In view of the majority opinion, this' appeal shall stand allowed. In view of majority opinion appeal stands allowed.