Mandatory Section 50 NDPS safeguard requires clear intimation of the right to personal search before a gazetted officer or Magistrate.

Strict compliance with Section 50 of the NDPS Act is mandatory before a personal search, requiring the accused to be informed of the legal right to be searched before a gazetted officer or Magistrate. A mere offer of search by the police officer or a gazetted officer is insufficient, because it does not communicate that enforceable right. As the search memo showed no proper intimation and the conviction rested on recovery from the accused's persons, the recovery was rendered suspect and the conviction and sentence could not be sustained.

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Issues: Whether non-compliance with the safeguard under Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 in conducting the personal search of the accused vitiated the recovery and conviction.

Analysis: The safeguard under Section 50 requires the empowered officer, before searching a person, to inform the person of the right to be searched before a gazetted officer or Magistrate. The Court applied the Constitution Bench rulings holding that this requirement is mandatory and calls for strict compliance, and rejected the notion of mere substantial compliance. The panchnama showed only that the accused were asked whether they would consent to search by the police officer or a gazetted officer, but they were not apprised of their legal right to insist on search before a gazetted officer or Magistrate. Since the conviction rested on recovery from the persons of the accused, the breach rendered the recovery suspect and the conviction unsustainable.

Conclusion: Non-compliance with Section 50 was established, and the conviction and sentence based on the personal search recovery could not be sustained.

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