Mahmood Ali Khan, J.
1. The petitioner has filed this petition under Section 439 Cr.P.C. for grant of bail. The petitioner was found in possession of 1 kg. of heroin.
2. Counsel for the petitioner has argued that the petitioner is in judicial custody for the past two years and that there is violation of the provisions of Section 50 of NDPS Act and the written notice (Annexure B to the petition) which is purported to have been served on the petitioner does not specifically state that the petitioner had a right to be searched in the presence of a magistrate of a gazetted officer. thereforee, the trial is vitiated and the petitioner is entitled to bail. Reliance is placed on the judgment of the Supreme Court in K. Mohanan v. State of Kerala, . He has also referred to a bail order passed by a single Bench of this Court on 3.12.2001 in CRLM M 2726 of 2001 (Ikram v. State).
3. Counsel for the respondent has strongly opposed the grant of bail. It was argued that commercial quantity of heroine was recovered from the possession of the petitioner and that he should not be granted bail without satisfying the court about the requirement of ingredients of Section 37 of the Act. It was also argued that the order of the Single Bench of this Court referred to by the counsel for the petitioner was assailed in an SLP and the Supreme Court has stayed the operation of this order. It was also argued that the notice contemplated under Section 50 of the Act may also be given orally, thereforee, the question of compliance or non-compliance of this provision has to be decided after the evidence is recorded. Reference was made by the counsel for the respondent to the judgment of the Supreme Court in Pon Adithan v. Dy. Director, Narcotics Control Bureau, Madras 1999 (6) AD (SC) 367.
4. The copy of the notice purported to have been served by the I.O. on the petitioner to comply with the requirement of Section 50 of the Act is Annexure B to the petitioner. Relevant portion of the notice is extracted below:
'Whereas I have a reasonable belief that certain narcotics, psychotropic substances are in your possession or those are concealed by you in your baggage/residential premises, hence your personal search as well as that of your residential premises is to be conducted.
You please state whether you require the presence of any Magistrate or Gazetted Officer during the above search.'
Section 50 of the Act, violation of which is alleged in this case, is extracted below:
'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 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) No female shall be searched by anyone excepting a female.'
The Constitution Bench of the Supreme Court in State of Punjab v. Balbir Singh, (1999) 6 SCC 172 analysed Section 50 of the Act and the case law on the subject and has summed up the principles of law as under:
'57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative or 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.'
This judgment was considered by the Apex Court in K. Mohanan (supra) referred to by the counsel for the petitioner. In para 6 of the judgment it was observed as under:
'6. If the accused, who was subjected to search was merely asked whether the required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW 1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defense adopted by the appellant at all stages was that Section 50 of the Act was not complied with.'
The above judgment, thus, clearly laid down that compliance of requirement of Section 50 of the Act is mandatory. On prior information if a person is to be searched, on being suspected to be in possession of some narcotic or psychotropic substance, he is required to be told before the search is conducted that he had a right to have his search to be conducted in the presence of a gazetted officer or a magistrate. It is obligatory on the part of the empowered officer who is to search the suspected person to inform that person of the right to require his search to be effected in the presence of either a gazetted officer or a magistrate. If the person before conducting the search has not been apprised of this right and is merely told that he could be produced for his search before a magistrate or a gazetted officer the mandate of the provision of Section 50 could not be said to have been fulfillled. It has been held by these judgments that any violation in complying with the provision of Section 50 vitiate the search and the proceedings and the search taken in violation of this provision should end in acquittal of the accused.
5. It is also, however, clear from these judgments that the person who is to be searched is not necessarily required to be told by the empowered officer in writing that he had a right to have his search conducted in the presence of the magistrate or a gazetted officer. What the law requires is that he should be told of his subsisting right under law for his search to be taken in the presence of a gazetted officer or a magistrate. It is also clear from the judgment in State of Punjab v. Balbir Singh (supra) that the prosecution can prove that the person who was searched was told about this right by leading oral evidence. In K. Mohanan (supra) also it has not been stated that the accused who is subjected to the search has to be told about his right to be searched in the presence of a gazetted officer or a magistrate in writing. From the reading of the judgment in State of Punjab v. Balbir Singh (supra) and K. Mohanan (supra) it also appears that these cases were decided after the full trial and evidence had been recorded.
6. In Pon Adithan (supra) The Supreme Court has observed that the right to be searched in the presence of a gazetted officer or a magistrate empowered in Section 50(1) of the Act was a mandatory requirement of law, still it need not be in writing and, thereforee, the empowered officer/10 cold offer such option to be accused orally and the evidence and statement of empowered officer/IO could be reliable and be taken to be a compliance with the requirement of Section 50.
7. In the instant case the evidence is yet to be recorded. thereforee, at this preliminary stage without giving an opportunity to the prosecution to lead complete evidence merely on the basis of the copy of the notice which has been supplied to the petitioner and relied upon by him it cannot be held that the search of the petitioner was taken in contravention of mandate of Section 50 of the Act so the search and trial both are vitiated. The submission of the counsel for the respondent that the bail order dated 3.12.2001 in CRLM M 2726 of 2001 (Ikram v. State) by a Single Bench of this Court on consideration of the ratio in K. Mohanan (supra) and the notice under Section 50 of the Act has been stayed by the Supreme Court in an SLP has not been denied.
8. As such the question whether the provision of Section 50 of the Act was or was not complied with could be raised by the petitioner before the trial court after the evidence has been recorded. The contention raised in this bail petition by the petitioner is premature. No other point was urged on behalf of the petitioner. Restriction imposed on granting bail in such cases by Section 37 of the Act shall apply.
For the reasons stated above, the petition is dismissed.