JUDGMENT - S.D. GUNDEWAR, J.:---This appeal by original accused No.1 is directed against the judgment and order dated 29-1-1999 passed in Special Criminal Case No. 48/97 by the learned Special Judge (NDPS), Nagpur. The learned Judge tried the appellant/accused along with his wife Smt. Rekha for the offences punishable under sections 21, 25 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as" the N.D.P.S. Act") . The learned Judge acquitted the original accused No. 2. Smt. Rekha but held the appellant/accused guilty of the offence punishable under section 21 of the N.D.P.S. Act and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac and in default to suffer R.I. for 2 years. 2. The prosecution case in brief is that on 24-7-1997 Head Constable Hemant Pali (P.W.5) was patrolling along with PSI Tidke and other police staff for carrying out the raids in connection with narcotic drugs. The raiding party took with it weights, scale and sealing material. The station diary entry to that effect was taken. While patrolling when the raiding party happened to come in Durgawati Chowk, H.C. Pali received a secret information that a lady by name Rekha possessed and was clandestinely making sale of brown sugar to her known customers in her house situated in Jay Bhole Nagar, Binaki Managalwari area. H.C. Pali reduced the said information into writing and sent its copy to P.I. Shirbate, his immediate superior officer along with H.C. Pande. He then fetched two panchas, namely, Naresh Ganpat Arsade (P.W. 4) and one Ashok Narhari Gokhe and apprised them of the sum and substance of the information received by him. Thereafter the raiding party along with two panchas proceeded towards the place indicated, i.e. Binaki Mangalwari area. On reaching, H.C. Pali enquired about the house of Rekha and on getting the information about the same, they went to her house. After reaching there, H.C. Pali gave a call, in response to which, one person came outside the house to whom H.C. Pali disclosed his identity. On being questioned, the said person gave out his name as Laxman Bhaiyalal Dendwal, being the accused No. 1. After reaching there, H.C. Pali gave a call, in response to which, one person came outside the house to whom H.C. Pali disclosed his identity. On being questioned, the said person gave out his name as Laxman Bhaiyalal Dendwal, being the accused No. 1. H.C. Pali then informed him about the purpose of the raid and told him that he had received an information that a lady by name Rekha possessed and was making sale of brown sugar in the said house. 3. H.C. Pali then asked the accused No.1 as to whether he wanted to give his personal search before any Gazetted Officer or a Magistrate, to which the accused No.1 declined. H.C. Pali then gave a notice (Exh-27) under section 50(1) of the N.D.P.S. Act to him in the presence of panchas and obtained his signatures thereon. The panchas also signed it. H.C. Pali also asked the accused No.1 as to whether he wanted to have the search of the members of the raiding party including the panchas to which also accused No.1 declined. Thereafter, H.C. Pali took personal search of accused No.1 in the presence of panchas. In the course of his personal search, two packets were found in his Lungi near waist. Both the packets were opened. Each of them contained brown sugar. The brown sugar found in those packets was collected together and weighed. It was found to be 2 grams. Out of the said brown sugar, two samples, each being of 100 mg. were taken. Both the sample packets were sealed separately. The sample packets were marked as S-1 and D-1, whereas the packet containing remaining brown sugar was marked as P-1. Besides the brown sugar the cash amount of Rs. 215/- was also found in the pocket of the shirt of accused No.1. It was also seized separately. 4. The raiding party then entered into the house. Accused No. 2 Rekha was present there. H.C. Pali informed her about the purpose of the raid and asked her as to whether she wanted to have her personal search being taken either before a Gazetted Officer or a Magistrate, to which she declined. A notice to that effect, i.e. Exh. 28 under section 50(1) of the N.D.P.S. Act was given to her. Accused No. 2 Rekha put her signature on the said notice, so also the panchas and H.C. Pali. A notice to that effect, i.e. Exh. 28 under section 50(1) of the N.D.P.S. Act was given to her. Accused No. 2 Rekha put her signature on the said notice, so also the panchas and H.C. Pali. A Lady Police Constable who was accompanying the raiding party was then asked by H.C. Pali to take personal search of accused No. 2 Rekha. The personal search of accused No. 2 Rekha was accordingly taken but nothing incriminating was found with her. Thereafter the search of the house was taken and in the course of the said search, 4 tiny packets were found near the speaker of a tape recorder. Those packets were opened. Each of them contained brown sugar. The brown sugar found in those packets was collected together and weighed. It was found to be 1 gram. Out of the said brown sugar, two samples each being of 100 mg. were taken. Both the samples were then sealed separately. The sample packets were marked as S-2 and D-2, while the packet containing remaining brown sugar was marked as P-2. A detailed panchnama of the same was then drawn. 5. The accused Nos.1 2 were then put under arrest and taken to the Police Station, Panchpaoli. After reaching the Police Station, H.C. Pali handed over the seized property to PSI Deoghare, who was then in-charge of the said Police Station. H.C. Pali also produced both the accused before him and lodged his complaint (Exh. 22) in the matter. On the basis of the said complaint, PSI Deoghare had registered the offence as Crime No. 139/97 under sections 21, 25 29 of the N.D.P.S. Act. H.C. Pali then handed over the C.A. forms to PSI Deoghare. PSI Deoghare in his turn affixed his seal on those packets and handed over the seized property to H.C. Madavi. H.C. Madavi received the said property along with the sample packets and took its entry in the property register at Sr. No. 69. The sample packets were then sent to C.A. Nagpur along with P.C. Narendrasingh Solanki on 25-7-1997. The P.C. Solanki carried those sample packets and deposited the same in the office of C.A., Nagpur on the same day along with invoice challan. The report of C.A. (Exh. 35) was received . It indicated that heroin (Diacetyl-Morphine) was detected in the samples along with other opium alkoloids. The P.C. Solanki carried those sample packets and deposited the same in the office of C.A., Nagpur on the same day along with invoice challan. The report of C.A. (Exh. 35) was received . It indicated that heroin (Diacetyl-Morphine) was detected in the samples along with other opium alkoloids. Heroin falls under section 2(xvi)(e) of the N.D.P.S. Act. As such, after completion of investigation, charge-sheet came to be presented against both the accused in the Court of Special Judge, N.D.P.S., Nagpur on 20-10-1997. 6. A charge (Exh-11) was framed by the learned Special Judge against the appellant/accused No. 1 under sections 21 25 of the N.D.P.S. Act. The appellant/accused No. 1 was also charged along with the original accused No. 2 Rekha under section 29 of the said Act . The charge was explained to both the accused in vernacular to which they pleaded not guilty and claimed to be tried. Their defence was one of total denial and false implication. 7. In support of its case, the prosecution examined in all 5 witnesses, including panch Naresh Arsade (P.W.4), H.C. Hemant Pali (P.W. 5) and PSI Deoghare (PW.2). Besides the said ocular evidence, the prosecution has produced the documentary evidence including a C.A. report (Exh-35). 8. The learned Judge upon consideration of the entire evidence on record found only the appellant/accused guilty under section 21 of the N.D.P.S. Act and sentenced him as stated above. 9. Shri R.B. Gaikwad, the learned Counsel for the appellant/accused, submitted that there was non-compliance of the mandatory provisions of the section 50 of the N.D.P.S. Act with the result that the whole search was vitiated. He also urged before us that though panch P.W .4 Naresh, an independent witness, did not state that the appellant/accused was informed of his right of search being taken before the Magistrate, the learned Judge did not consider it and by simply relying upon the evidence of H.C. Pali (P.W. 5) and notice/memo (Exh. 27) given under section 50 of the N.D.P.S. Act found the appellant/accused guilty under section 21 of the N.D.P.S. Act, which finding, according to him, is erroneous and liable to be set aside. 10. 27) given under section 50 of the N.D.P.S. Act found the appellant/accused guilty under section 21 of the N.D.P.S. Act, which finding, according to him, is erroneous and liable to be set aside. 10. Smt. T.D. Khade, the learned Additional Public Prosecutor, however, supported the judgement and submitted that the learned Judge acted correctly in holding that there was compliance of section 50 of the N.D.P.S. Act and hence, no interference by this Court is called for. 11. To appreciate the rival contentions raised at the Bar, we have carefully perused the judgement and scrutinised the evidence in detail so far as the compliance of provisions of section 50 of the N.D.P.S. Act is concerned. The learned Judge has based his finding on the consideration of the evidence of H.C. Pali (P.W. 5), panchnama (Exh. 29) and the memo (Exh. 27) given under section 50 of the N.D.P.S. Act. 12. The only question that arises for our consideration in this appeal is whether there was proper compliance of the provisions of section 50 of the N.D.P.S. Act or not by the prosecution? 13. Section 50 of the N.D.P.S. Act reads as under : "Section 50(1). When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) ---------------------------". It is true that in panchnama (Exh.29) and the notice/memo (Exh.27), it is clearly mentioned that the H.C. Pali (P.W .5) informed the appellant/accused No. 1 as to whether he would like to give his personal search before a Gazetted Officer or a Magistrate. H.C. Pali in his deposition recorded in English has also stated about the same. (4) ---------------------------". It is true that in panchnama (Exh.29) and the notice/memo (Exh.27), it is clearly mentioned that the H.C. Pali (P.W .5) informed the appellant/accused No. 1 as to whether he would like to give his personal search before a Gazetted Officer or a Magistrate. H.C. Pali in his deposition recorded in English has also stated about the same. However, in his deposition recorded in Marathi, though he has stated that he had asked appellant/accused No. 1 as to whether he would like to be searched in the presence of Gazetted Officer or Officer of other department, he did not mention about "Magistrate". Shri Gaikwad also pointed out that even the panch witness Naresh (P.W. 4) did not state about "Magistrate" in his both the versions, Marathi as well as English. Shri Gaikwad, the learned Counsel for the appellant/accused, therefore, urged that considering the aforesaid evidence of panch Naresh (P.W. 4) and that of H.C. Pali (P.W. 5) it cannot be said that there was full compliance of the provisions of section 50 of the N.D.P.S. Act. According to him, at the most it would amount to partial compliance and not full compliance of the provisions of the said section. For this, he placed reliance on the decision in (Hamid Khan v. State of Maharashtra)1, reported in 1997(1) Bom.C.R. 179 and in (Mehar Mohammad Raffiq v. State)2, reported in 1995(3) Crimes 477 . We have carefully gone through the said decisions. 13. In Hamid Khan's case (cited supra), the fact that the accused was informed of his right of being searched either before a Gazetted Officer or a Magistrate was not mentioned either in seizure-memo or panchnama. Even the H.C. Nathu Damaji, who conducted the search and seizure did not inform the accused that he was entitled to have his search being taken before a Magistrate. All that was mentioned by him was "Gazetted Officer or other officer". The Division Bench of this Court observed that expression other officer does not include "Magistrate" and hence, it was held that there was partial compliance of provisions of section 50 of the Act and not full compliance and on that basis conviction and sentence awarded to accused were quashed. 14. Similarly, in Mehar Mohd. Rafiq's case (cited supra), there was partial offer to get the accused searched in the presence of "Gazetted Officer" only and not "Magistrate". 14. Similarly, in Mehar Mohd. Rafiq's case (cited supra), there was partial offer to get the accused searched in the presence of "Gazetted Officer" only and not "Magistrate". It was, therefore, held by the learned Single Judge of Delhi High Court in the said case that a mere offer to get the person searched in the presence of a Gazetted Officer is a partial offer limiting the choice though it is incumbent upon the officer concerned to offer alternative choice and hence, the search of the accused conducted in the presence of A.C.P.-Gazetted Officer without any option to the accused to be searched before Magistrate was held to be a partial compliance of the mandatory provisions of section 50 of the N.D.P.S. Act and on that basis the conviction and sentence were set aside. 15. As discussed above, what we find in the present case is that there is some variance between the deposition of Head Constable Pali (PW.5) recorded in English and Marathi. In his deposition recorded in English, he stated that he had informed the appellant/accused as to whether he wanted to have his personal search being taken before the Gazetted Officer or a Magistrate. However, in his deposition recorded in Marathi he stated that he asked the appellant/accused as to whether he wanted to be searched in the presence of Gazetted Officer or officer of other department. This clearly indicates that either the deposition of H.C. Pali (PW.5) recorded in English or in Marathi was not recorded correctly. It is surprising that the learned Judge did not care to get the same corrected. In fact, it is obligatory on the part of the Presiding Officer to read over the deposition recorded in vernacular to the witness. It seems that this was not done in the case at hand. Had the learned Judge read over the deposition of H.C. Pali (PW.5) recorded in vernacular to him, such mistake would not occurred. This lapse on the part of the learned Judge clearly indicates that he failed to discharge his duty in recording the evidence of this witness properly. Not only that, but it shows how in a slipshod manner the evidence of this witness came to be recorded. 16. This lapse on the part of the learned Judge clearly indicates that he failed to discharge his duty in recording the evidence of this witness properly. Not only that, but it shows how in a slipshod manner the evidence of this witness came to be recorded. 16. We have no hesitation in our mind to hold that the aforesaid lapse or failure on the part of the learned Judge in recording the evidence of H.C. Pali (PW.5) has not in any way caused prejudice to the appellant/accused because in the case at hand if we consider the deposition of H.C. Pali (PW.5) recorded in English along with the notice/memo (Exh.27) given under section 50(1) of N.D.P.S. Act and the relevant facts narrated in the panchnama (Exh.29), it goes to show that the H.C. Pali (PW.5) had informed the appellant/accused as to whether he was willing to get himself searched either before a Gazetted Officer or Magistrate to which he declined. This clearly indicates that there was full compliance and not partial compliance of the provision of section 50(1) of the N.D.P.S. Act. In view of this, we find that the aforesaid decisions cited on behalf of the appellant/accused are of no avail to him. 17. No other point was urged before us. 18. In the result, we do not find any merit in the present appeal and hence, it is dismissed. The conviction and sentence of the appellant/accused under section 21 of the N.D.P.S. Act are hereby confirmed. The accused is found guilty of the offence punishable under section 21 of the N.D.P.S. Act. Appeal dismissed. -----