A. PASAYAT, J. ( 1 ) ORDER of the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jeypore holding that the respondent G. Jaga Rao (hereinafter referred to as the accusedt) is not guilty of offence punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) is assailed in this appeal by the State. ( 2 ) ACCUSATIONS which led to trial of the accused stated in brief are as follows. ( 3 ) ON 11. 12. 1990, a raiding party consisting of the Executive Magistrate attached to Collectorate, Koraput, members of the Excise Department and A. P. R. Force reached village Bijangiwada under Kalimela Police Station. They searched the house of accused, after observing all formalities and recovered contraband ganja weighing 250 grams from one old plastic torn handless bag. The accused had no authority to possess the same. The Sub-Inspector, Malkangiri seized the ganja and forwarded the sample ganja through the learned J. M. F. C. , Motu for examination by the chemical examiner of the Government of Orissa. On 13-12-1990 the prosecution report was submitted. ( 4 ) THE accused pleaded innocence and false implication. ( 5 ) IN order to establish its case, prosecution examined four witnesses. P. W. 1 is the Executive Magistrate, P. W. 2 is the Inspector of Excise, who claimed to be present at the time of recovery and seizure of ganja from the house of the accused. P. W. 3 is the Sub-Inspector of Excise, who seized ganja from the possession of the accused and investigated into the case, the P. W. 4 is a witness to the search and seizure, who later on denied his knowledge about the alleged commission of offence. According to learned trial Judge prosecution version was not credible. He found a lot of inconsistencies in the evidence. He observed that there was non-compliance of mandatory provisions of Section 50 of the Act. Additionally, he found that the sample which was claimed to have been sent for analysis was not opened by the Chemical Examiner. He noticed that the sample which has placed before the Court, was found with seals intact and not to have been opened at any time, and had come back to Court in the same condition as it was sent to the Chemical Examiner. He noticed that the sample which has placed before the Court, was found with seals intact and not to have been opened at any time, and had come back to Court in the same condition as it was sent to the Chemical Examiner. When the sample was opened before the Court, it was noticed that there was nothing to show that the sample was at any time opened by the Chemical Examiner. Report of the Chemical Examiner was not accepted. No reliance was placed on the test claimed to have been done by P. W. 3 to conclude that the sealed article was contraband ganja. In the aforesaid premises, he found the accused-respondent not guilty and directed his acquittal. ( 6 ) IN support of the appeal, Mr. D. K. Misra, learned Counsel for the State submitted that Section 50 had no application to the facts of the case, because in the case at hand there is no evidence that the persons conducting search or seizure had any prior information leading to reasonable belief that an offence under Chapter IV of the Act was committed. Strong reliance is placed on a decision of the apex Court in State of Punjab v. Balbir Singh and Pilli Dilli Dora v. State of Orissa. Learned Counsel for the accused, however, submitted that the fact situation clearly shows that raid was conducted on the basis of prior information. ( 7 ) THE provisions of the Code of Criminal Procedure, 1973 (in short, the Code) shall be applicable in so far as they are not inconsistent with the Act to all warrants, searches, seizures or arrests made under the Act. But when a Police Officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Code comes across a person being in possession of the narcotic drug or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the Act also, then he must follow thereafter the provisions of the Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the Act who should thereafter proceed from that stage in accordance with the provisions of the Act. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the Act who should thereafter proceed from that stage in accordance with the provisions of the Act. But at this stage the question of resorting to Section 50 of the Act and informing the accused person that if he so wants, he would be taken to a gazetted officer and taking to gazetted officer thus would not arise, because by then search would have been over. As laid down in Section 50 of the Act, the steps contemplated thereunder namely informing and taking him to the gazetted officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of the Code, then the question of complying with Section 50 of the Act would not arise. When the police, while acting under the provisions of the Code as empowered therein, while exercising surveillance or investigating into other offences, has to carry out the arrests or searches they would be acting under the provisions of the Code. At this stage if there is any non-compliance of the provisions of Section 100 or 165 of the Code that by itself cannot be a ground to reject the prosecution case outright. The effect of such noncompliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the Act the question of complying with the provisions of the said Act including section 50 at that stage would not arise. When the contraband seized during such arrests or searches attracts the provisions of the Act, then from that stage the remaining relevant provisions of the Act would be attracted and the further steps have to be taken in accordance with the provisions of the Act. Section 50 provides that when the empowered officer is about to search any person under the provisions of Sections 41 to 43, he shall if such person so requires, take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Section 50 provides that when the empowered officer is about to search any person under the provisions of Sections 41 to 43, he shall if such person so requires, take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Sections 41, 42 and 43 appear as a part of Chapter V of the Act. Section 41 comes into operation when there is reason to believe about commission of offence punishable under Chapter IV. Section 42 deals with a situation where there is reason to believe from personal knowledge or information given by any person and taken down in writing about commission of offence under Chapter IV. Similar is the case of Section 43 which deals with power of seizure and arrest in cases of reason to believe about commission of offence under Chapter IV. ( 8 ) THE case at hand does not appear to be one where there was any prior information to enable an officer to reasonably believe about commission of offence punishable under Chapter IV. The learned Counsel for State is, therefore, on tarra firma so far as his submission regarding applicability of Section 50 is concerned. ( 9 ) HE has raised a further point that section 50 relates to search of persons but not search of premises. That question is academic so far as this case is concerned and therefore, I do not propose to deal with that aspect. ( 10 ) THE other question is whether the learned trial Judges conclusion that the report of Chemical Examiner is not free from doubt is defensible. From the evidence of P. W. 1 and the observation of the learned trial Judge it is crystal clear that the packet containing the sample which was sent through Court to the Chemical Examiner was received back in the same state without the seal being removed from the packet. If that was the case, obviously the Chemical Examiner could not have submitted the report that the sample was tested. The learned trial Judge has referred to the state of packet and has come to hold that the same was not opened, and therefore question of sample have being examined by the Chemical Examiner did not arise. The learned Counsel for State could not place any material to show as to how this conclusion is erroneous. The learned trial Judge has referred to the state of packet and has come to hold that the same was not opened, and therefore question of sample have being examined by the Chemical Examiner did not arise. The learned Counsel for State could not place any material to show as to how this conclusion is erroneous. He made a feeble plea that the report having been given by the Chemical Examiner it is presumed that he had tested the sample. Reference is made to Section 114 of the Indian Evidence Act, 1872 (in short, the Evidence Act) about presumptions to be attached to the official acts. Illustration (e) in respect of the aforesaid provision is highlighted. The presumption relating to performance of judicial and official acts and the rule embodied in this illustration is a particular application of the maxim omnia praesumuntur Rite Esse acts, i. e. , all acts are presumed to have been rightly and regularly done. The presumption is chiefly applied to judicial and official acts. The presumption under Section 88 is another presumption in favour of regularity of acts. The presumption of performance of official duty and regularity of proceedings is more often mentioned than enforced; and its scope as a real presumption is indefinite and hardly capable of reduction to rules. It may be said that more of instances of its application are found attended by several conditions; first, that the matter is more or less in the past, and incapable of being established by easily procured evidence; secondly, that it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officers action; next that it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainly; and finally, that the circumstances of the particular case add some element of probability. The expression regularly performed means performed in accordance with form and procedure. There is no presumption that the official act has been regularly performed when the act itself is shown on the face of it to be unauthorised or not legal. The illustration is not exhaustive, and the general language of Section 114 applies to all acts and proceedings which might be presumed to have been done in the usual course of business. The presumption is rebuttable. The illustration is not exhaustive, and the general language of Section 114 applies to all acts and proceedings which might be presumed to have been done in the usual course of business. The presumption is rebuttable. It can only be overturned by exceptionally strong evidence. The presumption is that all judicial and official acts have been properly done, but before presumption can arise it must be proved that the official or judicial act was done. There is no presumption of the acts themselves being done. The presumption is optional and one of fact. It can be displaced by circumstances indicating that the act was in fact not done. It is only when an official act is proved to have been done it would be presumed to have been done regularly. It does not raise any presumption that an act was done of which there is no evidence, and the proof of which is essential to be established. The presumption is as to regularity of official acts done and not that of the acts themselves being done. ( 11 ) LEARNED trial Judges conclusion that the sample was not really tested is well supported by materials on recorded and does not suffer from any infirmity. In that view of the matter, the learned trial Judge was right in holding that there was no material to show that the seized article was ganja. The learned counsel for State emphasized on the evidence of P. W. 3 to submit that he had tested seized articles and from his wide experience could tell that the article seized was ganja. The test as claimed to have been done by P. W. 3 has been found to be doubtful by the learned trial Judge. Further mere statement that the seized article was found to be ganja on being tested by P. W. 3 does not meet the requirements of law. As observed by this Court in Pilli Dilli Doras case (supra) the seized ganja powder should be chemically examined to determine that it is ganja. Evidence of a witness that from his experience and training he could say that it was ganja is not sufficient. I do not find any infirmity in the conclusion of the learned trial Judge as regards absence of material to show that the seized article was ganja. The order of acquittal is maintained and the Government Appeal is dismissed. Appeal dismissed.