The judgment of the Court was as follows:—

1. This Criminal appeal against the conviction and sentence passed by the learned Additional Sessions Judge, 3rd Court, Howrah under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act (N.D.P.S Act, for short), 1985 was heard by a Division Bench of this Court comprising Vidyanand, J. and S.K Tewari, J. As there has been a difference of opinion between the two learned Judges, the appeal has been referred to me as third Judge.

2. The prosecution case in short is that on 2.1.93, P.W 1 Sudarshan Chandra Parui, O.C of Excise, F.I.B, Howrah and the other excise personnel who were on checking duty at Howrah Railway Station at about 6.10 a.m intercepted the appellant-accused at platform No. 9 after the down Mithila Express came to the station and passengers were coming out of its compartments and on search is presence of witness and P.W 4, Chiranjib Ganguly, D.E.C, of Excise (Deputy Excise Collector) 13 sticks of Charas were recovered from the person of the appellant and the recovered sticks of Charas were seized and sample was take a and the accused was arrested and forwarded to Court and subsequently charge-sheet was also submitted after obtaining the report of chemical examination.

3. As I have already mentioned on trial by the learned trial Court the accused was found guilty and was convicted under Section 20(b)(ii) of the N.D.P.S Act and sentenced to suffer R.I for 10 years and to a fine of Rs. 1 lac and in default R.I for three months more. The appellant then preferred the present appeal. There is a difference of opinion between the two learned Judges of the Division Bench who heard the appeal. Vidyanand, J. is of the opinion that it was bounden duty of the searching authority to give option to the accused to be searched before a Gazetted Officer or before a Magistrate, but in this case there is no evidence that the appellant was informed of his right at any time and that mere doubtful presence of a D.E.C, or a Gazetted Officer without informing the accused of his valuable right will not do. The learned Judge is also of the opinion that the prosecution has failed to show that it has complied with the mandatory provision of Section 50 of the N.D.P.S Act and that non-compliance of this mandatory provision is fatal to the prosecution and in the result the appeal is liable to be allowed and the appellant acquitted. On the other hand S.K Tewari, J. relying upon the decision of the Supreme Court in (1) Raghbir Singh v. State Of Haryana., (1996) 2 SCC 201 : AIR 1996 SC 2926, is of the view that since the appellant was searched in presence of the Deputy Excise Collector who was a Gazetted Officer the requirement of Section 50 of the N.D.P.S Act was thus complied with. The learned Judge is, therefore, of the view that the appeal should be dismissed. Now, therefore, the cardinal question before me is whether Section 50 of the N.D.P.S Act was complied with in this case Section 50 of the N.D.P.S Act reads as follows:—

“S. 50. Conditions under which search of person 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 unnecessarily 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.”

4. At this stage we may look to the evidence-on-record. P.W 1, Sudarshan Chandra Parui is the O.C of Excise. Howrah E.I.B His evidence is that on 2.1.93 he along with his staff A.S.I Md. Yunus, Constables Niranjan Ghosh, Tapan Kr. Roy, D.K Sarkar. Bhuban Chandra Bera and D.B.C Chiranjib Ganguly had been doing duty at Howrah Railway Platform and in the morning at 6.10 a m. on hearing an announcement of arrival of Down Mithila Express at platform No. 9 they took position near the engine side of that platform and were standing at a distance of about ¾ cubits from one another and after the arrival of Mithila Express as the passengers were moving out Constable Niranjan Ghosh intercepted the accused on suspicion and then he (the P.W 1) was called by the said constable and he also called his staff with D.E.C and witness was also called. He says that D.E.C was there and in presence of the witness, the excise staff and the D.E.C he (P.W 1) conducted search on the person of the accused and 13 sticks of Charas were recovered from the possession of the accused. P.W 2., Niranjan Ghosh is an excise constable who was there at the time of search of the accused. He called the public witness. He says that in presence of that witness and the excise staff including D.E.C search was conducted on the person of the accused and 13 sticks of Charas were recovered and seized. He says that O.C prepared the seizure list in presence of the public witness and others. He also says in his Examination-in-Chief that the D.E.C is a Gazetted Officer and the accused was told about the presence of Gazetted Officer. P.W 3., Naresh Chakraborty is a hawker and vegetable vendor. He was the public witness who was called there and in whose presence the search and recovery was made. In his cross-examination he says that he deposed earlier in such type of cases in Court. He further says that he does business of hawking in the vicinity of Howrah Railway Station. P.W 4, Chiranjib Ganguly is the Deputy Excise Collector (since retired with effect from 31.3.94). He says that on 2.1.93 he was in additional charge of Howrah E.I.B check post and on that day in the morning he was present at Howrah Railway Station for checking duty and he along with O.C.S.C Parul, A.S.I Md. Yunus, Constables Niranjan Ghosh, Tapan Kr. Roy and others reached platform No. 9 on hearing that Mithlla Express will be coming at that platform and that the O.C deputed the staff for checking purpose on that platform. He speaks about the search of the accused and recovery of 13 sticks of Charas from him in his presence. He says that the O.C asked the suspected person that one Gazetted Officer was with them and he pointed to the witness (i.e Chiranjib Ganguly, the Deputy Excise Collector). He further says that after observing all formalities of search, the O.C searched the accused and then recovery of 13 sticks of Charas etc. was made from his possession. P.W 5, Tapaa Kr. Roy is also an excise constable who speaks about search and seizure. P.W 6, Dilip Kr. Seth is the Assistant Chemical Examiner in the Department of Chemical Examiner, Govt. of West Bengal. He examined the sample sent to him and gave his finding that it was Charas.

5. From the evidence adduced on behalf of the prosecution there is no doubt that Charas was recovered from the person of the appellant on search on the concerned date at Howrah Station, platform No. 9. The search was made by P.W 1, S.C Parui, O.C of Excise, Howrah E.I.B in presence of witness, excise staff and P.W 4, Chiranjib Ganguly, Deputy Excise Collector who is a Gazetted Officer. It also appears from the evidence that at the time of search the accused was told that the search was being made in presence of P.W 4, a Gazetted Officer who was present there at that time. It is contended before me on behalf of the appellant that the requirement of Section 50 of the N.D.P.S Act in this case has not been complied with became before or at the time of search the appellant-accused was not told about his right that he could opt for being searched in presence of a Gezetted Officer or a Magistrate and at any rate since there was no Magistrate present at the time of search and no option was given to the appellant that he could choose to be searched in presence of a Magistrate, the mere fact that the petitioner might have been searched in presence of D.E.C, a Gazetted Officer does not meet the requirement of Section 50. It is further contended that D.E.C being a member of the raiding party the fact that the search was made in his presence does not also meet the requirement of Section 50, irrespective of other aspects of the question. It is also contended that there is no signature of the D.E.C in any of the connected papers showing or indicating his presence at the time of search and that being so oral evidence about his presence should not be relied upon or believed. Having regard to the evidence-on-record including the evidence of the D.E.C who is a responsible Gazetted Officer of the Excise Department, I have no reason to disbelieve the prosecution case that the D.B.C was present at the time of search. It is true that the seizure list which was prepared after the search and seizure on the very date of occurrence does not contain the signature of the D.E.C, although it contains the signatures of others, yet in the remarks column of that seizure list Exbt. 1, it has been clearly recorded along with other statements recorded therein that D.E.C (H) was present at the time of detection. In the charge-sheet also, I had, the name of the D.B.C has been included in the column of the names and addresses of the witnesses. There is, therefore, no reason, I reiterate, to disbelieve the presence of D.E.C at the time of search and seizure or to hold that his presence has been falsely imported at the time of hearing of the case as an afterthought. I hold that indeed he has present at the time of search and recovery. However, although the learned Additional Public Prosecutor submitted that D.E.C was not a member of the raiding party yet in view of the facts, circumstances and evidence-on-record, I find it difficult to accept this submission. From the evidence of P.W 4, Chiranjib Ganguly, D.E.C himself it would appear that he along with the O.C.S.C parui and other excise staff was on checking duty at the Howrah Railway Station at that time. The appellant was apprehended at that time by some members of the checking party and the D.E.C was also associated with the operation. In the circumstances, it will have to be held that the D.E.C was also a member of the checking party and the detention, search and recovery were the result of the activities of the checking party at that time and therefore, it cannot be said that the D.E.C was not involved in the operation of the checking party. But then the question still remains that even if he was a member of the checking party or raiding party, would that by itself be fatal to the prosecution in the matter of compliance of Section 50.

6. It has been contended on behalf of the appellant that at any rate the appellant at the time of search was not told about his right that he could opt for being searched in presence of a Gazetted Officer or a Magistrate as required by Section 50, and that itself is fatal to the prosecution. It is not in dispute that P.W 1, the O.C of Excise, E.I.B is an Officer authorised under Section 42 to make a search of a suspected person under the provisions of Sections 41, 42 and 43. Section 50 does not debar or disqualify him from making a search of a suspected person under any of the said sections. The requirement of Section 50 is that the person going to be searched has to be told about his right that instead of being searched by the Officer authorised under Section 42, in the absence of a Gazetted Officer or Magistrate he could opt for being searched in presence of a Gazetted Officer or a Magistrate. In (2) Abdul Bhai Daud Bhai v. State of Gujarat, (1998) 9 SCC 675, the Supreme Court observed that the mandatory provision of Section 50 of the N.D.P.S Act had not been followed in that case and therefore, the conviction could not be sustained. What precisely was the lapse in respect of the factual aspect of the case however has not been mentioned in that decision. In (3) Satyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, JT 1995 (3) SC 489, it was observed by the Supreme Court in Paragraph 12 that the 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 had been informed by the concerned Officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. Since that was not done in the laid case the accused was acquitted. It is, however, to be noticed that in the said case the search was made by two Police Sub-inspectors who were obviously not Gazetted Officers. Since they did not Inform the accused before search that he had the right to choose to be searched in presence of a Gazetted Officer or a Magistrate there was obviously non-compliance of Section 50 and that is why they were acquitted by the Supreme Court. In (4) Ali Mostafa v. State of Kerala, 1995 C. Cr. LR (SC) 1, also the search of the accused was made by a Non-Gazetted Officer, namely, a Sub-inspector of Police. But before the search the accused was not given any option as to whether he desired to be searched in presence of a Gazetted Officer or a Magistrate and accordingly, the Supreme Court held that the mandatory provision of Section 50 had not been complied with and therefore, the conviction was vitiated. Similarly in (5) Mohinder Kumar v. State, Panaji, Goa, 1995 SCW 1208, also search was held by a Non-Gazetted Officer, namely, Sub-inspector of Police and the Supreme Court, inter alia, held in Paragraph 3 that he did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. The conviction and sentence were set aside and the accused was acquitted by the Supreme Court. In (6) State of Punjab v. Balbir Singh, 1994 C. Cr. LR (SC) 121 at page 143, it has been held. inter alia, by the Supreme Court that on prior information the empowered Officer or authorised Officer while acting under Section 41(2) or 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 and that it is obligatory on the part of such Officer to inform the person to be searched and 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 would thus effect the prosecution case and vitiate the trial. The Supreme Court in that decision was considering a number of cases where the Police Officers made search. There is nothing in that decision which would indicate that the Police Officers making the search were of gazetted rank. All the above-mentioned decisions, it may be noted here, were cited by the learned Advocate for the appellant.

7. On the other hand the learned Additional Public Prosecutor has in this connection cited two decisions of the Supreme Court, namely, (7) Monohar Lal v. State of Rajasthan, 1997 SCC (Cri) 505 and Raghbir Singh v. State Of Haryana., (1996) 2 SCC 201 : AIR 1996 SC 2926. In Monohar Lal v. State of Rajasthan (supra), the Supreme Court held that the provision of Section 50 of the N.D.P.S Act only requires the option to be given to the accused to say whether he would like to be searched in presence of a Glutted Officer or a Magistrate, and on exercise of that option by the accused, it is for the Officer concerned to have the search made in presence of the nearest Gazetted Officer or the nearest Magistrate ??? is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is further observed in that decision that it is clear from Section 50 of the N.D.P.S Act that the option given thereby to the accused is only to choose whether he would like to be searched by the Officer making the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate and that the choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the Officer making the search and not by the accused. In Raghbir Singh v. State Of Haryana. (supra), it appears that the police party was not headed by any Gazetted Officer but was led by the Station House Officer, Jakhal and the accused was given the option of being searched by the said Police Officer or before a Gazetted Officer and the accused opted to be searched before a Gazetted Officer and accordingly, he was searched in presence of a Gazetted Officer and opium was recovered. The accused was convicted on trial. It appears that before the Supreme Court a plea was taken by the appellant-accused that he was not told that be could opt to be searched before a Gazetted Officer or before a Magistrate and therefore, the provisions of Section 50 were not satisfied. As we have seen, in that case the accused was given the option to be searched by the Police Officer who held the raid or in presence of a Gazetted Officer. Nothing was told to the accused about option to be searched before a Magistrate. The Supreme Court in that decision in Paragraph 11 held that the option under Section 50 of the Act is only of being searched in presence of Senior Officer (Gazetted Officer or Magistrate) and there is no further option of being searched in presence of either a Gazetted Officer or of a Magistrate. It was further observed by the Supreme Court in that connection that the use of the word ‘nearest’ in Section 50 is relevant and the search has to be conducted at the earliest and once the person to be searched, opts to be searched in the presence of such Senior Officer it is for the Police Officer who is to conduct the search to conduct it in presence of whoever is the most conveniently available Gazetted Officer or Magistrate. In view of the Supreme Court decisions in Raghbir Singh v. State Of Haryana. and Monohar Lal v. State of Rajasthan (supra), there is no scope of raising any contention that the option given to the accused for being searched in presence of a Gazetted Officer without mentioning anything about Magistrate, will be only a partial offer or option and will therefore be bad in law in the matter of compliance of mandatory provision of Section 50. Any such contention is wholly untenable in view of the Supreme Court decisions. There is no option with the accused to be searched either in the presence of the Gazetted Officer or in the presence of the Magistrate at his choice. That being so there is good compliance of Section 50 if the accused is given an option to be searched in presence of a Gazetted Officer without mentioning anything about Magistrate, and that is precisely what happened in the said Supreme Court decision in Raghbir Singh v. State Of Haryana. (supra). The theory that any such option is bad in law being partial option as propounded in some decisions of some High Courts such as, (8) Aswini v. State of Orissa, 1996 Cr. LJ 900; (9) Sardar Singh v. State of Rajasthan, 1996 Cr. LJ 3186; (10) Rajinder Kumar v. State, 1998 Cr. LJ 51; (II) Neki Ram v. State of Haryana, 1998 Cr. LJ 199; (12) Gujar Singh v. State of Haryana, 1998 (4) AI Cr. LR 386; (13) Gurnam Singh v. State of Punjab, 1998 (4) AI Cr. LR 143, is definitely not good law on this point in view of the Supreme Court decision in Raghbir Singh v. State Of Haryana. (supra); and the other decisions mentioned therein. That no option to be ??? in presence of a Magistrate was given or pointed out to the appellant in our present case is therefore of no consequence because the search in the present case has been conducted in the presence of a Gazetted Officer, namely, the Deputy Collector of Excise.

8. The question that has still to be considered in our case is whether the search in presence of a Gazetted Officer of the same department to which the Searching Officer belongs is an adequate compliance of Section 50. In my considered view that is an adequate compliance of Section 50, having regard to the provisions of Section 50 itself and the decisions of the Supreme Court in Raghbir Singh v. State Of Haryana. (supra), etc. But however the decision of a Division Bench of this Court in (14) Ajoy Srivastava v. State of West Bengal, 1998 C. Cr. LR (Cal.) 417, has been relied upon by the learned Advocate for the appellant wherein it has been held that mere presence of Gazetted Officers in the raiding party would not meet the requirements of Section 50(1), particularly when the option required under Section 50(1) was not given to the accused. The Division Bench, it seems, preferred to accept the view taken by the Karnataka High Court in the matter in (15) D. Singh v. State of Karnataka, 1993 Cr. LJ 94, rather than the contrary views expressed in some decisions of the Delhi High Court and Orissa High Court. On the other hand the learned Additional Public Prosecutor has relied upon the Gauhati High Court decision in (16) Id. Jainul Abdin v. State of Manipur, 1991 Cr. LJ 696, and the Bombay High Court decision in (17) R.D Makwana v. State of Maharashtra, 1994 Cr. LJ 1987, in support of his submission that the presence of a Gazetted Officer in the raiding party will suffice to meet the requirement of Section 50 of the N.D.P.S Act. It is clear from the Supreme Court decision in Raghbir Singh v. State Of Haryana. and Monohar Lal v. State of Rajasthan (supra), that the choice is not with the accused, as between the Gazetted Officer and the Magistrate, as to in whose presence he should be searched. This is a choice of the searching Officer depending upon the convenience of quick availability. In view of those decisions search is valid if made in presence of a Gazetted Officer pursuant to an acceptance of the offer of search in presence of a Gazetted Officer without even a whisper being made to the accused about Magistrate, as happened in the case considered by the Supreme Court in Raghbir Singh v. State Of Haryana.. It has to be noticed that Section 50 of the N.D.P.S Act does not reflect any distrust in respect of an authorised Non-Gazetted Officer in the matter of searching a suspected person under the N.D.P.S Act. It is of great significance to note that Section 50 does not debar a competent Non-Gazetted Officer from making a search of a suspected person which means that the legislature has no distrust for such Non-Gazetted Officer and search is valid if in spite of offer the accused does not opt for being searched in presence of a Senior Officer (Gazetted Officer, Magistrate). What Section 50 provides is that the accused for his own satisfaction may opt for being searched in presence of a Gazetted Officer or a Magistrate rather than by a competent Non Gazetted Officer in the absence of any such Senior Officer. This provision of Section 50 is not embedded in any distrust for any class of Officers, but is intended to give only an option to the accused to be searched in presence some Officer of higher rank for the satisfaction of the accused himself. If in spite of being Informed of his right under Section 50, the accused does not opt for being searched in presence of any Senior Officer of higher rank (Gazetted Officer, Magistrate) or opts to consign himself to the competent Non-Gazetted Officer for being searched by the latter even in the absence of such Senior Officer, in that event also the search by the competent Non-Gazetted Officer meets the requirement of Section 50. What we are trying to project is that the competent Non-Gazetted Officer is not inherently disqualified by Section 50 to hold the search. The section rather only gives an option to the accused to be searched in presence of an Officer of still higher rank. Keeping that aspect in view it is evident that if the raiding party or search party itself has a Gazetted Officer and the search is conducted in his presence that is sufficient compliance of Section 50 inasmuch as it will be illogical to totally disqualify a Gazetted Officer of the raiding party or search party when even a competent Officer of non-gazetted rank can also hold a valid search if in spite of option given, the accused prefers to be searched by such Non-Gazetted Officer without the presence of a Senior Officer of higher rank or does not exercise any option or remains unconcerned. The legislature also definitely did not intend that ignoring the presence of a Gazetted Officer in the raid or search party the direction to make the search will have to be obtained by approaching another Gazetted Officer of the same or even inferior rank elsewhere of a different department. Also the emphasis in the provisions of Section 50 is not at all on the department to which such Senior Officer belongs so that such Senior Officer and the searching Offices must belong to different departments. The emphasis is rather on rank or for that matter the seniority in rank of the concerned Officer and this has also been pointed out in the decision of Raghbir Singh v. State Of Haryana. (supra), as we have seen. If the legislature so intended it could very well have stated in the section itself that the Gazetted Officer in whose presence the option of search has to be given must belong to a different department. But the legislature does not say that. As we have seen the legislature also does not hold in distrust even a competent Officer of non-gazetted rank.

9. Read as a whole and keeping in view the object behind and the relevant decisions of the Supreme Court discussed above it is evident that what Section 50 requires is that the accused should be searched in presence of a Senior Officer of higher rank mentioned therein if and only if he so desires. That is the core requirement of Section 50 and that mutt be complied with. The question of offer of option to the accused arises for ensuring that the said core requirement is not violated deliberately or by oblivion. If the said core requirement is complied with by holding the search in presence of a Gazetted Officer, the further question whether he was given option to be searched in presence of Gazetted Officer or Magistrate becomes wholly redundent and immaterial. I am, therefore, of the view that if the raiding party or search party has a Gazetted Officer and the search is made in his presence, that itself is a sufficient compliance of the mandatory provision of the Section 50 of the N.D.P.S Act. Since, however, as we have seen, a Division Bench of this Court has in Ajoy Srivastava v. State of West Bengal (supra), taken a contrary view, I think that this point and the entire appeal should be heard and decided by a larger Bench of three or more Judges. Accordingly, I direct under the proviso to Section 392 Cr. P.C that this appeal be placed before the Hon'ble the Chief Justice for getting the same heard by a larger Bench of three or more Judges.

10. S.K.G