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9. RECOVERY FROM ACCUSED NISHA From such conspectus of the evidence lead, oral and documentary, as traversed above, that the prosecution essays to establish that accused Nisha was found in possession of 105 gms of heroin supplied to her by accused Maya.

(i) Seizure memo EX.PW6/B, DD No.20 dated 19.9.2014, documents the recovery of heroin by SI Dinesh Kumar, witnessed by W/Ct. Pooja and Ct.Ram Dass, in consonance with the oral account along the lines that on the corner of service road, gali no.6, Andha Mughal Partap Nagar, cursory search of accused Nisha was taken by W/Ct. Pooja with due regard to her modesty and decency inside the Government vehicle, and a black color heavy polythene which accused Nisha was holding in her left hand was produced before SI Dinesh Kumar by W/Ct. Pooja, the recovered black color polythene was checked for its contents and it was found containing one heavy transparent polythene with its mouth tied with rubber band with matiala colour powder in it, the said polythene was opened, powder was checked on the field testing kit and was found to be heroin. The recovered heroin was weighed with the transparent polythene that it was found in on electronic weighing machine and was found to weigh 105 gms, five- five grams were taken from the recovered heroin and kept in separate small transparent polythene pouches mouth of which were secured with rubber band and converted into cloth pullandas given Mark A and B and the remaining 95 gms heroin was left in the transparent FIR No.98/2014 State v. Nisha etc. page no.26 polythene that it was found in and returned to the black color polythene that it was kept in, the mouth of the black color polythene was secured with rubber band and was converted into a separate cloth pullanda given Mark C. FSL Form was filled up in respect of the recovered heroin. All the pullandas were sealed with one-one seal each of 3APSNBDELHI as well as the FSL Form, seal after use was handed over to W/Ct. Pooja no.8588/PCR.

(iv) Ld. Defence Counsel contended that there is clear contravention of section 50 (4) of the Act as the search of the accused has been conducted by women constable Pooja who is not an officer authorized /empowered under section 42/41 of the Act. It is so stipulated under section 50(4) of the Act that no female shall be searched by anyone excepting a female, the word empowered does not qualify the word female employed in section 50(4) of the Act, the construction sought to be advanced would call for addition of the word empowered in terms of section 41 and 42 of the Act alongside the word female used in the sub-section. S. 42 of the Act empowers the officer above the rank of peon, sepoy constable of the departments as enumerated thereunder for making search and seizure under the Act in a conveyance building or enclosed place between sunset and sunrise, which powers are available to such officers in respect of search and arrest at public places also by virtue of section 43 of the Act, but S. 50(4) of the Act insists only that such search should be by another female, even where the search is to be conducted by an empowered officer. In the case of a female offender, search by a female, sans the word empowered and absence of any specific mention of section 42/41 FIR No.98/2014 State v. Nisha etc. page no.42 of the Act in section 50(4), would suggest that it should be by a female officer or a female panch witness, regard being had to the modesty and decency of the female offender, but under the directions and supervision of the empowered officer albeit he is a male. The female officer though not empowered as in terms of section 41/42 of the Act, must be acting in accordance with the instructions of the empowered officer while making the search.

(v) With regard to the scope and ambit of S. 50(4) of the Act, following observations were made in State of Punjab v. Baldev Singh ((1999) 6 SCC 172):

"Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. S. 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in S. 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. S. 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by S. 50(4) of the NDPS Act read with S. 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The doc prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female officer who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity". 
FIR No.98/2014                  State v. Nisha etc.             page no.43
 (vi)       The H'ble Supreme Court has equated the requirements under
section 50(4) of the Act to that provided under section 51(2) of the Cr.PC, that the female offender shall be searched by a female with strict regard to decency, and not called for the necessity of attracting section 42/41 of the NDPS Act thereto. That the requirement is in every sense mandatory is emphatically established by H'ble the Supreme Cour tin State of Punjab v. Surinder Rani, (2000) 10 SCC 429