ORDER : S.N. Variava, J. This appeal is against the judgment dated 5-9-2001 by which the High Court has confirmed the conviction and sentence passed by the Special Court, under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Narcotic Drugs And Psychotropic Substances Act"). 2. Briefly stated, the facts are as follows: on 24-10-1999 PW 4, Uday Naik, who was attached to the Anti-Narcotic Cell, Panaji, received a specific and reliable information that one person named Tommy Thomas was selling charas at Tiwaivaddo, Calangute, near the house of one Silveira. PW 4 reduced the said information to writing and the same was delivered to the Deputy Superintendent of Police, PW 6, Apa Kashiram Teli. PW 4 then secured the presence of two panchas i.e. PW 3, Nitin Prabhakar Dhond and another panch, and apprised them about the information received. The panchas were then introduced to the other members of the raiding party which consisted of PW 6, PW 5, PI Lavhu Mamledar, Head Constable Sheikh Sallia, T.T. Naik and Police Constables Harinam Naik, Sadashiv Shetye and Sandeep Shirvaikar. The raiding party then proceeded in a police jeep and on a private motorcycle to Tiwaivaddo. The raiding party on reaching Tiwaivaddo made enquiries about the house of Silveira. They then went on foot towards the house. On reaching there, they saw one person searching something in the bushes. As his description matched the description which had been received, the raiding party then surrounded that person i.e. the appellant. After surrounding him, PW 4 identified himself and told the appellant that they had received specific and reliable information that he is selling charas. PW 4 apprised the appellant regarding his right to get himself searched in the presence of either a gazetted officer or a Magistrate and also that he had a right to get the members of the raiding party searched. The appellant declined to exercise his right and, therefore, personal search of the appellant was taken. From the right-hand-side pocket of the pants he was wearing, one polythene bag containing some blackish-coloured substance was found. This was suspected to be charas. It was weighed and it came to 220 gm. The said substance was then sealed in an envelope with the seal of the Anti-Narcotic Cell, Panaji, Goa. From the right-hand-side pocket of the pants he was wearing, one polythene bag containing some blackish-coloured substance was found. This was suspected to be charas. It was weighed and it came to 220 gm. The said substance was then sealed in an envelope with the seal of the Anti-Narcotic Cell, Panaji, Goa. The envelope was also signed by PW 4, PW 3 (the panch witness) as well as the appellant. Search was also taken of the bushes. In the bushes a polythene bag containing blackish-coloured substance, which was suspected to be charas, was found. It was weighed and the weight was confirmed at 850 gm. This bag was also sealed and the same procedure was followed. 3. At the trial, the accused pleaded not guilty. The prosecution led evidence of six witnesses, including the evidence of the Junior Scientific Officer, PW 1 and Scientific Assistant, PW 2. They also led the evidence of panch witness Nitin Prabhakar Dhond, PW 3. PW 4 gave evidence about receiving specific and reliable information, reducing the information to writing, delivering a copy of the same to the Deputy Superintendent of Police, reaching the place and finding the appellant, informing the appellant of his right under Section 50 of the Narcotic Drugs And Psychotropic Substances Act and the appellant declining to exercise that right. PW 4 also deposed about the search then being carried on and the polythene bags being found in the pocket of the appellant as well as in the bushes. PW 4 deposed about the same being weighed and sealed for being sent for analysis. The prosecution also examined PW 5 Lavhu Mamledar, who was one of the raiding parties and PW 6 Deputy Superintendent of Police. They corroborated the evidence of PW 4. On the evidence, the Special Court convicted the appellant. The appellant then filed an appeal before the High Court and the High Court by the impugned judgment upheld the conviction. 4. Before us only two points have been urged. It is first urged that the mandatory provisions of Section 50 of the Narcotic Drugs And Psychotropic Substances Act have not been complied with. It has been submitted that PW 3 (who was the panch witness) has deposed as follows: "The PSI then gave the accused offer to search the members of raiding party including the panchas but the accused declined the offer. It has been submitted that PW 3 (who was the panch witness) has deposed as follows: "The PSI then gave the accused offer to search the members of raiding party including the panchas but the accused declined the offer. He was given the offer for search in the presence of a gazetted officer or a Magistrate but the accused also declined the offer." 5. It is submitted that PW 6 (Deputy Superintendent of Police) has deposed as follows: "The accused was surrounded and given offer for search in the presence of gazetted officer or a Magistrate and that he has got right to search the members of raiding party but he declined both the offers." 6. It is submitted that their depositions show that only an offer had been made to search in the presence of a gazetted officer or a Magistrate. It is submitted that the appellant had not been informed of his right under Section 50 of the Narcotic Drugs And Psychotropic Substances Act. It is submitted that this amounts to non-compliance with the mandatory provisions of Section 50 of the Narcotic Drugs And Psychotropic Substances Act. In support of this submission reliance has been placed upon the Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 . The Constitution Bench has laid down the requirements of Section 50 to be as follows: (SCC pp. 208-10, para 57) "57. 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 person concerned 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 person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned 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 requires, 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. The answer, therefore, is that the investigating 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 official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a 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 the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to 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. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to 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 person concerned 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. (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 Mal case, Pooran Mal v. Director of Inspection (Investigation), 1974) 1 SCC 345, 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 case, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, (1994) 6 SCC 569,correctly interprets and distinguishes the judgment in Pooran Mal case2 and the broad observations made in Pirthi Chand case, State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 : 1996 Cri LJ 1354, and Jasbir Singh case, State of Punjab v. Jasbir Singh, (1996) 1 SCC 288 ,are not in tune with the correct exposition of law as laid down in Pooran Mal case2." (emphasis in original) 7. To be noted that the question whether or not safeguards provided under Section 50 of the Narcotic Drugs And Psychotropic Substances Act have been observed, has to be determined on the basis of evidence. 8. Reliance is also placed on an authority of this Court in K. Mohanan v. State of Kerala, (2000) 10 SCC 222 ,wherein a Bench of two learned Judges of this Court have held that merely asking the accused whether he required to be searched in the presence of a gazetted officer or a Magistrate, cannot be treated as communicating to him that he had a right under law to be so searched. In this case, it has been held that this would amount to non-compliance with Section 50 of the Narcotic Drugs And Psychotropic Substances Act and the conviction was, therefore, set aside. 9. Reliance was also placed upon the authority in Krishan Mohar Singh Dugal v. State of Goa, (1999) 8 SCC 552 ,in support of the next contention taken up on behalf of the appellant. 9. Reliance was also placed upon the authority in Krishan Mohar Singh Dugal v. State of Goa, (1999) 8 SCC 552 ,in support of the next contention taken up on behalf of the appellant. This is also a judgment delivered by a Bench of two learned Judges. In this case it has been held that asking the accused whether he would like to be searched before a Magistrate or a gazetted officer is sufficient compliance with Section 50 of the Narcotic Drugs And Psychotropic Substances Act. There is, therefore, a conflict of opinion between decisions rendered by two different Benches of two learned Judges of this Court. However, for the purposes of this case, we are not concerned with that conflict. In the present case there is evidence of PW 4. PW 4 has categorically stated that the accused had been informed of his right under Section 50 of the Narcotic Drugs And Psychotropic Substances Act. Both the Special Court as well as the High Court has believed the evidence of PW 4. We see no reason to disbelieve the testimony. We also do not see any substance in the contention that the evidence of PW 4 is contrary to the evidence of PW 6 and/or PW 3. 10. It is next submitted that the recovery was from an open place. It is submitted that there is no evidence to connect the recovery with the accused. In support of this submission reliance was placed on the authority of Krishan Mohar Singh Dugal case, Krishan Mohar Singh Dugal v. State of Goa, (1999) 8 SCC 552 . There can be no dispute with the principles laid down in this authority. However, in this case there is evidence that during search 220 gm were found from the pocket of the pants worn by the appellant. Thus, even though 850 gm have been found from the bushes, recovery of 220 gm from the person of the appellant is sufficient to convict the accused. 11. We, therefore, find no infirmity in the judgment of the courts below and see no reason to interfere. 12. The appeal is, accordingly, dismissed. Appeal dismissed.