1. The appeal is filed against the judgment of the I Additional District and Sessions Judge, East Godavary at Rajahmundry in C.C. No. 44/1992 convicting and sentencing the appellant to suffer rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- and in default to suffer simple imprisonment for six months under Section 8(c) read with Section 20(1)(b) of the Narcotic Drugs and Psychotropic Substances Act. 1985.

2. The charge framed against the accused in that on 16-10-1992 at about 8 p.m. near the R.T.C. complex, Tuni he was found in possession of 4 1/2 kgs. of ganja without possession of any permit, licence or authority issued by competent authority and thereby committed an offence punishable under Section 8(c) read with Section 20(1)(b) of NDPS Act, 1985.

3. The case of the prosecution in brief is that the accused is the resident of Brahmamgarimatham, Quddapah District. On 16-10-1992, on information, P.W. 3 K. Raghavendrarao, C.I. of Excise Enforcement, Kakinada, along with two mediators, P.W. 1 Lanka Sanyasirao and Pasupuleti Musili Naidu (D.W. 2) and P.W. 5 Md. Ahmadullah, Excise, S.I. Tuni and other staff conducted patrolling of Tuni Town under the supervision of P.W. 4 N. Dasrath, Assistant Commissioner of Excise, Enforcement, Kakinada for excise offences. At about 8 p.m. the accused was found sitting covering his body with a bed sheet by the side of the public road 30 yards east to the R.T.C. Complex in-gate, which is leading to the railway station, through Ammajipeta. On seeing the Excise Officers, the accused tried to run away. On suspicion P.W. 5 got the accused open the bed sheet and searched the accused in the presence of P.W. 4 and found one big cloth bag slinging to his right shoulder. When P.W. 3 enquired the accused about the contents of the bag, he did not give proper answer. Hence P.W. 5 got the cloth bag opened and found one mica manure bag containing ganja in it. P.W. 5 got the above ganja weighed in the rice store of Samanthula; Sanyasisetti. The ganja weighed 4 1/2 kgs P.W. 5 took samples from the ganja into two sample packets each containing about 200 gms of ganja and affixed identity slips and sealed those packets with his seal. The accused gave his name and address on interrogation. He did not produce any licence or permit to possess and transport the ganja. P.W. 5 therefore, arrested the accused after informing him about the reasons for his arrest, under the cover of mediators report drafted on the spot seized the contraband P.Ws. 3 and 5 attested the mediators report P.W. 5 registered the mediators report as Crime No. 8/92-93 of Tuni Range under Section 8(c) read with Section 20(b) of the N.D.P.S. Act. A report was sent under Section 57 of the N.D.P.S. Act to the Superior Officer within 48 hours. The packets which were sealed were sent to the chemical examiner, who on analysis found the sample as ganja. After investigation the charge sheet was filed and the accused was tried.

4. The prosecution examined six witnesses in support of its case and filed Exs. P1 to P8 and M.Os. 1 to 4. P.W. 1 is the mediator. P.W. 2 is the chemical examiner. P.W. 3 is the C.I. of Excise Enforcement, Kakinada. P.W. 4 is the Assistant Commissioner of Excise, Enforcement, Kakinada, who is a Gazetted Officer. P.W. 5 is the Excise, S. I. Tuni. P.W. 6 is Excise Inspector. Ex. P1 is the mediators report. Ex. P4 is the chemical examiner's report. The accused pleaded not guilty. On the basis of the evidence the learned Judged held that the accused is in possession of narcotic and psychotropic substances in violation of the provisions of the Act and therefore liable to be convicted under the Act. He rejected the contention that the accused was not informed of his right to be searched either in the presence of a Gazetted Officer or a Magistrate on the ground that the search itself was conducted in the presence of a Gazetted Officer P.W. 4. He also disagreed with the contention that since the shop owner namely Samanthula Sanyasisetti, in whose shop the ganja was wighed was not examined and therefore, the prosecution case should fail on the ground that it is not necessary to examine the shop owner as he is not a material witness, against which the present appeal is filed.

5. The learned counsel took me through the entire evidence. Further he contended that it is mandatory under Section 50 of the N.D.P.S. Act that at the time of search of the appellant, the respondents i.e., the officer authorised to search should have informed the appellant that he has an option to be searched either in the presence of the Gazetted Officer, namely P.W. 4 or the Magistrate and in the present case there is failure on the part of P.Ws. 3 and 4 apprising the appellant his right to be searched either in the presence of a Magistrate or a Gazetted Officer. Therefore, the whole prosecution should fail. He brought to my notice a number of judgments of the Supreme Court, in support of his contention.

6. The Public Prosecutor pointed out that since the search was made in the presence of a Gazetted Officer, it is not necessary that the appellant should have been apprised of his right under Section 50 of the Act.

7. The earliest decision on the scope of Section 50 is the judgment of the Supreme Court reported in State of Punjab v. Balbir Singh, : 1994CriLJ3702 . It was held that;

'Section 50 confers a valuable right on 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. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. The legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. 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. It must therefore, be held that on prior information the empowered officer or authorised officer while acting under Section 41(2) or Section 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. It is obligatory on the part of such officer to inform the person to be searched. 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 thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a person or a not would be a question of fact. The provisions of Section 50 are thus mandatory.'

8. In Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, : 1995CriLJ2662 , followed the judgment in State of Punjab v. Balbir Singh, (1994 Cri LJ 3702) (SC), supra and reiterated the view expressed in Balbir Singh's case. The learned Judges also pointed out that no presumption can be raised that the officer have informed the required mandatory requirement under Section 50 of the N.D.P.S. Act to the accused and that it is necessary that Courts dealing with offences under the N.D.P.S. Act should be very careful to see that it is established to their satisfaction that the accused has been informed by officer concerned that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. The accused must be made aware of this right to protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug-pedlars do not go scot-free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking.

9. In Raghbir Singh v. State of Haryana, 1996 SCC (Cri) 266 : (1996 Cri LJ 1694), reiterated the view expressed in Saiyed Mohd. Saiyad Umar Saiyad v. State of Gujarat, (1995 Cri LJ 2662) (SC) supra.

10. From the above it is clear that under Section 50 the appellant has a right to be searched in the presence of a Gazetted Officer or a Magistrate. The question of exercising the option to be searched in the presence of a Gazetted Officer or a Magistrate arises, provided the accused is aware of such a right. Accused would be aware of such a right only if the officers who proposed to search the accused informs the accused of his option available to him under Section 50 of the N.D.P.S. Act. Unless the accused is informed of the option available to him under Section 50 of the N.D.P.S. Act, the accused cannot exercise the option under Section 50 of the Act. On the facts of the present case it does not appear that P.W. 4 has informed the accused/appellant of the option which is available to him under Section 50. On the other hand in the trial Court the argument that was advanced was since the search was made in the presence of a Gazetted Officer, there is no violation of Section 50. Therefore, there is no evidence that P.W. 4 informed the appellant of his option which is available to him under Section 50. Further the fact that the appellant was examined by a Gazetted Officer does not absolve the prosecution from informing the accused the option available under Section 50. It is a valuable right available to the accused under the Act. Therefore, the fact that the accused was examined by a Gazetted Officer does not cure the infirmity in the prosecution. The prosecution of the appellant is in violation of Section 50 of the N.D.P.S. Act. Therefore, it fails and the appeal is accordingly allowed. The appellant is acquitted under Section 8(c) read with Section 20(1) of the N.D.P.S. Act. The appeal is allowed.

11. The respondents are directed to set the appellant free forthwith, if not required to be detained in any other cases.

12. As pointed out by the Supreme Court, the respondents are directed to issue instructions to the authorities under the Act the necessity to inform the accused the option available under Section 50 of the Act before making any search on information received by them that persons are in possession of Narcotic Drugs and Psychotropic Substances under the Act in Contravention of the provisions of the Act.

13. Appeal allowed.