TARAQI AHMED Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) The petitioner has filed bail application under Section 439 of the Code of Criminal Procedure against the order dated 19th April, 1994 passed by Additional Sessions Judge, Shahdara, Delhi, whereby he rejected the bail application of the petitioner under Section 21 of the N.D.P.S. Act. The petitioner is facing trial under Section 21 of the N.D.P.S. Act for alleged recovery of 900 grams of smack.

(2.) The petitioner has submitted that there is violation of Section 50 of the N.D.P.S. Act, and that non-compliance of mandatory provisions must result in vitiating the entire trial. He has placed reliance on the judgment of the Supreme Court State of Punjab Vs. Balbir Singh, JT 1994(2) S.C.108. In this case, the Supreme Court has held that compliance of Section 50 is mandatory. The Court has ob served that it is. imperative 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, provisions of Section 50 are mandatory. To appreciate the controversy involved, it would be appropriate to reproduce Section 50 of the N.D.P.S. Act. Section 50, N.D.P.S. Act reads as under:

(3.) According to the intention of the legislature before the search of a person is conducted, such person be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate. In other words, it is obligatory on the part of the concerned officer to inform the person to be searched and failure to do so would amount to non-compliance of Section 50, which is mandatory in character.