JUDGMENT A.L. Vaidya, J — The present appellant was prosecuted under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be called as "the Act"), and after trial was convicted and sentenced to undergo imprisonment for ten years and to pay a fine of rupees one lac. In default of the payment of fine, the appellant was further sentenced to undergo simple imprisonment for one year. 2. The case of the prosecution as revealed from the record has been that one constable Harnam Singh of State C. I. D, was present in Bhunter on 10th September, 1994 at about 1.45 p. ra. He informed Head Constable Rattan Chand (PW 1) at Air Port, Bhunter near the gate that a Foreign National, who was present near the gate was suspected to possess some contraband. Head Constable Rattan Chand alongwith Constable Harnam Singh apprehended the present appellant and took him to the security room of the Air Port. Thereafter, HO Rattan Chand sent constable Harnam Singh to inform the S H. O , Police Station, Kullu or Incharge of the Police Post, Bhunter or any other police officer available at Bhunter so that search of the appellant could be taken. Additional S.H.O, Police Kullu S. I Nihal Chand (PW 9) at that time was on patrol duty in Bhunter Bazar, where Harnam Singh informed him about the present appellant and thereafter, S. I. Nihal Chand prepared the information report of the case and sent the same to S.P. Kullu through Jatia Ram (PW 4) L.H.C.S.I. Nihal Chand came to the security room of the Air Port alongwith Harnam Singh and found H, C Rattan Chand and the present appellant in the security room. After verifying the pass-port and other antecedents of the present appellant. SI Nihal Chand informed the appellant orally as well as in writing vide Ext. PW I/A that since he was suspected to have Charas, his search was required to be conducted and the present appellant was given option to offer his search either to the police party, or before a gazetted officer or before a Magistrate. According to the prosecution case, the appellant signed Ext PW 1/A in token of his consent for his search to be taken by the police party itself and in the meanwhile, Sh. According to the prosecution case, the appellant signed Ext PW 1/A in token of his consent for his search to be taken by the police party itself and in the meanwhile, Sh. K.K. Indoria (PW 5), the then Dy Superintendent of Police, Kullu also came there on routine checking duty The search was conducted by SI Nihal Chand in the presence of Head Constable Rattan Chand, constable Harnam Singh and the Dy, Superintendent of Police, A bag carried by the appellant was searched and out of that search some personal belongings mentioned in the list Ext. PW 1/B were recovered and at the bottom of the bag, a paper box was found, which was scaled on all sides with tape. The tape was removed from one side by SI Nihal Chand and he found Charas in the same in the form of Goties (rounds) and sticks wrapped in a plastic paper which were recovered. The Charas so recovered on weighing was found to be 490 grams. Two samples of 25 grams each were separated from the Charas, so recovered and the samples were sealed in two different empty packets of Dhoop with seal ‘T and the remaining Charas was sealed in a saparate parcel with the same seal. A recovery memo was prepared and the seal after use was handed over to constable Harnam Singh. 3. Further prosecution case has been that SI Nihal Chand informed the appellant of the grounds of arrest vide Ext PW J/E, and thereafter arrested him under section 20 of the Act for having Charas unauthorisedly. Thereafter, a Ruka Ext. PW 4/A was sent to the Police Station, Kullu, on the basis of which First Information Report Ext. PW 7/A was recorded. SI Nihal Chand also prepared special report of the case, copy of which was Ext. PW 6/B, and handed it over to ASI Om Parkash (PW 6) Reader to the S. P , Kullu for being put up before the S. P., Kullu. 4. The sample parcel, which was deposited with MHC Om Parkash (PW 3) was sent by him on 21-9-1994 through LHC Baldev Singh (PW 2) to the Chemical Testing Laboratory, Kandaghat and on examination of the contents of the sample, report Ext. PW 8/A was given, on the basis of which the sample contained Charas. 5. 4. The sample parcel, which was deposited with MHC Om Parkash (PW 3) was sent by him on 21-9-1994 through LHC Baldev Singh (PW 2) to the Chemical Testing Laboratory, Kandaghat and on examination of the contents of the sample, report Ext. PW 8/A was given, on the basis of which the sample contained Charas. 5. It was on the basis of the aforesaid circumstances that the present appellant was prosecuted. 6. The appellant has assailed his conviction and sentence passed by the Additional Sessions Judge, Kullu, as referred to above in the present appeal on various grounds. 7. We have heard the learned Counsel for the parties and have minutely scrutinised the records. 8. The learned Counsel for the appellant has confined his submissions to the proposition that the prosecution in the present case has miserably failed to connect the possession of the appellant with the alleged recovered Charas through a legally competent evidence as was the requirement of law. The learned Counsels line of arguments in this particular behalf has been that the mandatory provisions required to be complied with under the Act have been violated in effecting the alleged recovery, the benefit of which is to be given to the appellant and not to the prosecution, as has been so done by the trial Court. 9. Taking into consideration, the submissions put forth by Mr. Arun, Goel, the learned Counsel for the appellant, the conviction and sentence passed against the appellant have been assailed to be illegal, unsustainable and untenable in the eye of law on the following aspects :— (1) The prosecution has violated the mandatory provisions of section 50 of the Act. (2) Under section 51 of the Act, provisions of the Code of Criminal Procedure, 1973 are to apply to warrants, arrests, searches and seizures so far as they are not inconsistent with the provisions of the Act. It has been submitted that while effecting the search of the person of the appellant, provisions of section 100 (4) of the Code of Criminal Procedure have not been complied with and no plausible explanation in this behalf has been rendered for their non-compliance. (3) The report of the Chemical Examiner, Kandaghat Ext PW 8/A opining the sample to be the contents of Charas under the provisions of the Act and Rules framed thereunder cannot be used .as a legal piece of evidence. 10. (3) The report of the Chemical Examiner, Kandaghat Ext PW 8/A opining the sample to be the contents of Charas under the provisions of the Act and Rules framed thereunder cannot be used .as a legal piece of evidence. 10. There is absolutely no dispute to the proposition that a very severe punishment have been provided under section 20 of the Act for the commission of an offence of present nature. A person convicted could be-sentenced with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. It is with this background that some statutory riders have been provided in the Act itself to safeguard the interest of the accused so that he or his defence may not be prejudiced during investigation also. There are certain mandatory provisions, which have to be complied with by the police at the time of seizure and search of the suspected person, so as to avoid any false implication and to restrict the unfettered powers of the police for collecting evidence under the Act in order to connect the accused person with the alleged offence. Section 50 of the Act provides one of such statutory riders, which runs as under:— “50. Conditions under which search of persons 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 unnecessary 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. (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 any one excepting a female." In the present case, the case of the prosecution has been that this mandatory provision has been complied with by issuing a copy of Ext PW I/A to the appellant, who affixed his signature thereupon consenting for his search to be conducted by the police. In order to appreciate this aspect of the case, factual side has to be gone into. Before that aspect is taken note of, the legal side of the proposition at first instance has to be appreciated. 11. Section 50 of the Act as referred to above offers a right to the person to be searched by a gazetted officer of any of the department mentioned under section 42 of the Act or taken to the nearest Magistrate. . In case, the person does not require his search to be conducted by the gazetted officer or by the Magistrate in that event it can be said that the person has not exercised the option given to him under section 50 of the Act and the police as per the provisions of the Act could effect the personal search. 12. It is not disputed that it is the duty of the police officer to give option to the person as to whether he desired to be searched in the presence of the gazetted officer or Magistrate as envisaged under section 50 of the Act. The compliance of section 50 of the Act would not be completed in case only such an option is given to the person to be searched. It is one of the essentials of section 50 of the Act that such an option at first instance has to be offered and in case it has been so offered, the other follow up compliance would be whether the person has exercised such option or not. This aspect has also to be established by the prosecution under section 50 of the Act. The person may or may not exercise such an option, this aspect has to be established legally through the legally competent evidence. 13. In the present case, according to the prosecution by delivering the copy of Ext. This aspect has also to be established by the prosecution under section 50 of the Act. The person may or may not exercise such an option, this aspect has to be established legally through the legally competent evidence. 13. In the present case, according to the prosecution by delivering the copy of Ext. PW 1/A, whereby the appellant was asked to give his option under section 50 of the Act, the first part of the provisions had been complied with and regarding later part, it has been the case of the prosecution that the appellant orally conveyed that he has got no objection to be searched by a police officer 14. The case of the appellant in this particular behalf has been that no doubt, his signatures on Ext PW 1/A were procured under threat on a blank paper and later on behind his back and in his absence it was scribed. 15 Ext. PW I/A for the sake of convenience is being reproduced hereunder :— "P. S Kullu Distt Kullu Case F. I. R. No 880/94, dated 10 9-1994 under sections 20, 61, 85 N. D. P S. Act, PS Kullu, Information regarding search I, Sub-Inspector Police Nihal Chand Police Station Kullu, suspect that you Mr. Kingett Edward Christopher British citizen holder of pass-port No, 700180160 are in possession of Char as Possession of Charas is an offence under NDPS Act in India. Please give your option to be searched by me or before any gazetied officer of police or some Magistrate, Sd/” 16. Ext. PW I/A only pertains to the option given to the appellant It does not contain anything as to in what manner the option was exercised by the appellant more so in the manner as has been alleged by the prosecution. There are certain circumstances, which if taken note of, will not rule out the likelihood of the defence being taken in this behalf by the appellant to be a probable one. Otherwise also, those circumstances, which are reflected from the prosecution evidence itself clearly established that the appellant had not exercised any option and without taking that option from him, the police effected the search, and in this view of the matter, it cannot be said that the mandatory provisions of section 50 of the Act stood legally complied with. 17. Otherwise also, those circumstances, which are reflected from the prosecution evidence itself clearly established that the appellant had not exercised any option and without taking that option from him, the police effected the search, and in this view of the matter, it cannot be said that the mandatory provisions of section 50 of the Act stood legally complied with. 17. Regarding option having been exercised by the appellant, some oral version has come on record in the statements of PW I, HC Rattan Chand and PW 5 Sh. K.K. Indoria, the then Dy Superintendent of Police, who were alleged to be present at the time of the search of the appellant, 18. PW 1 HC Rattan Chand during his examination in chief stated on oath that it was intimated to the appellant that he was free to offer his search either to the police party or to a gazetted officer or Magistrate and this information was given to him in English language orally as well as in writing vide Ext PW I/A. He further added that appellant signed Ext. PW I/A and orally told that he was prepared to give search to the police itself and that his signatures are sufficient in token of his consent He also stated that in the meanwhile Dy Superintendent of Police, Kullu Sh. K, K Indoria also reached the spot. During cross-examination the witness stated that it was incorrect to suggest that Ext PW I/A was not prepared on the spot and that option of search was not told to the appellant He also stated that it was incorrect to suggest that the signatures of the appellant were taken forcibly under threat on a blank paper and thereafter contents of Ext. PW I/A were incorporated in the same. The witness was confronted with his statement made under section 16lfCr»P. G.-which has been proved on record as Ext. DA. The witness added that there was no mention in Ext. DA about the option given to the appellant about his search to be taken either before the police officer of before a gazetted officer or before a Magistrate. He also added that it was correct that in Ext DA he had not stated that the appellant was told the option of search orally also. This PW 1 Rattan Chand, Head Constable is one of the signatory of Ext. He also added that it was correct that in Ext DA he had not stated that the appellant was told the option of search orally also. This PW 1 Rattan Chand, Head Constable is one of the signatory of Ext. PW 1/A, He also deposed that Shri K. K Indoria had not reached the spot when appellant was intimated vide Ext. PW I/A about his proposed search. 19. Sh. K, K, Indoria was examined as PW 5, and he stated on oath v in this particular regard that Si Nihal Chand told him that the appellant was suspected to possess some contrabands and that SI Nihal Chand also told him that he had followed the procedure prescribed under section 50 of the Act to conduct the search During cross-examination, this witness disclosed that it was correct that in his statement made under section 161, Cr. P. C., there was no mention about compliance with the provisions of section 50 of the Act having been done by SI Nihal Chand prior to his arrival. 20 From the statements of these two witnesses and from the statement of SI Nihal Chand, it is being inferred that the appellant had orally given his option to be searched by the police officials The version given by the two police officials PW 1 and PW 5 regarding this aspect of the case that appellant had opted for taking of his search by the police officials is rendered very much doubtful as they have tried to improve their statements made to the police and this omission in their statements made to the police amount to contradiction on a very material aspect, which cannot be taken in favour of the prosecution at all". Such a contradiction, shall render the versions given by them to be of doubtful nature, especially when to accept their statements in this behalf, in the aforesaid background would be prejudicial to the interest, fair and legal trial of the appellant. 21. Such a contradiction, shall render the versions given by them to be of doubtful nature, especially when to accept their statements in this behalf, in the aforesaid background would be prejudicial to the interest, fair and legal trial of the appellant. 21. At this stage it may also be pointed out that in case the appellant had expressed the option, as has been alleged by the prosecution, it could have been so taken in writing from him as the police had given in writing through Ext, PW 1 /A for seeking his option The police did not follow this procedure for the reasons best known to it, but this lapse being a serious one, more so, resulting in not complying with the mandatory provisions of the Act. It appears that the factum of oral option having been given by the appellant is an afterthought, and it is that aspect of the occurrence which has not been stated by the concerned witnesses in their statements under section 161, Cr, P. C. 22. Thus in the aforesaid context of factual side, even the likelihood of the signatures of the appellant-accused having been taken on a blank paper could not be ruled out. Otherwise also, the evidence examined during the trial and as discussed above in this particular regard clearly established the violation of mandatory provisions of section 50 of the Act. The search, as a result of such violation cannot be said to be a lawful one and under the circumstances, benefit has to be given to the appellant. 23. In this behalf, the learned Counsel for the appellant has tried to find support from certain judgments, which can be taken help of to appreciate the proposition under reference, 24. In AIR 1995 SC 244, All Mustaffa Abdul Rahman Moosa v, State of Kerala, the following observations made by the apex Court, are very much relevant:— "Where a Police Officer on receiving information that a person is in possession of contraband (Charas), wants to subject him to search, it is the duty of the Police Officer to give option to the person as to whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged by section 50 The failure to provide that option to the accused vitiates his conviction. The provisions of section 50 are mandatory, the non-compliance whereof vitiates the conviction It is not necessary that the person who is about to be searched should by himself make a request A contraband seized as a result of illegal search or seizure, cannot be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. Unlawful possession5* of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act.” 25. In (1995) 3 SCC 610, Saiyad Mohd Saiyad Umar Saiyad and others. State of Gujarat, the Full Bench of the apex Court held as under:— "When evidence of the search is given, all that transpired in its connection must be stated Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had pot chosen to so demand If no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established. It cannot be said that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by section 50, that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Sec 50, the court is duty-bound to conclude that the accused had not had the benefit of the protection that section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the precondition for his having satisfactorily accounted for such possession has not been met; and to acquit the accused. It is necessary that courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the 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 or 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. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes" 26. In (1994) 3 SCC 299, State of Punjab v. Balbir Singh, the follow-in g observations made are very much relevant :—- "N. D. P, S. Act is not a complete Code incorporating all the provisions relating to search, seizure or arrest etc. The words "insofar as they are not inconsistent with the provisions of this Act” in section 51 are significant. In view of section 51 of the Act and section 4, Cr, P. C. the provisions of the Cr. P. C shall be applicable insofar as they are not inconsistent with the NDPS Act to all warrants, searches, seizures or arrest made under the Act. Thus, by a combined reading of sections 41, 42, 43 and 51 of the NDPS Act and section 4, Cr. P C regarding arrest and search under sections 41, 42 and 43, the provisions of Cr. P. C. namely sections 100 and 165 would be applicable to such arrest and search. Under section Cr. P. C. the provisions of the Cr. P C regarding arrest and search under sections 41, 42 and 43, the provisions of Cr. P. C. namely sections 100 and 165 would be applicable to such arrest and search. Under section Cr. P. C. the provisions of the Cr. P. C. are applicable where an offence under the Indian Penal Code or under any other law is being inquired into, tried and otherwise dealt with, From the words “otherwise dealt .with" it does not necessarily mean something which is not included in the investigation, inquiry or trial and the word "otherwise" points to the fact that the expression “dealt with" is all comprehensive and that investigation, inquiry and trial are some of the aspects dealing with the offence. If an empowered officer or an authorised officer under section 41 (2) of the NDPS Act carry out a search, he would be doing so under the provisions of Cr. P. C. namely sections 100 and 165, Cr. P. C and if there is no strict compliance with the provisions of Cr. P. C., then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances pf each case. The Court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. The effect of such non-compliance 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. The testimony of the witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the Courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. If a police officer without any prior information as contemplated under the provisions of the NDPS Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr. P. C. and when such search is completed at that stage, section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the provisions of the NDPS Act 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 light 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. When such is the importance of a right given to an accused person in custody in general, the light 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 course or not would be a question of fact. The provisions of section 50 are thus mandatory. In considering whether a provision in a Statute is mandatory and the effect of non-compliance of the same, the courts should keep in mind the real intention of the Legislature keeping in view the whole scope of the Act and the particular provisions to be construed in the context. The provisions of the statute creating public duties are generally speaking directory." The aforesaid settled law in the background of the established facts of this case and as discussed above, can safely be taken note of in coming to the conclusion that prosecution has not complied with the mandatory provisions of section 50 of the Act. 27. The second limb of the argument submitted by Mr. Goel has been pertaining to non-compliance of section 100 of Cr. P. C. in the present case. The case of the prosecution in this behalf has been that there were certain circumstances present in this case whereby the police could not comply with the provisions of section 100(4), Cr. 27. The second limb of the argument submitted by Mr. Goel has been pertaining to non-compliance of section 100 of Cr. P. C. in the present case. The case of the prosecution in this behalf has been that there were certain circumstances present in this case whereby the police could not comply with the provisions of section 100(4), Cr. P. C by associating two or more independent and respectable inhabitants of the locality, at the time when search of the appellant was conducted The explanation rendered is that the appellant was taken to the security room of the Airport, Bhuntar where non-official persons entry was strictly prohibited, We think such an explanation has to be considered for rejection only, 28. The case of the prosecution has been that the appellant was apprehended on suspicion that he was possessing some contraband and thereafter taken to the security room of the airport. At first instance, there is nothing on record that the independent and respectable inhabitants of the locality could not be taken to the security room. Secondly, there is absolutely no explanation as to why the appellant was taken to security room for his personal search, which could have been conducted otherwise outside the security room. This lapse on the part of the police, again has to be appreciated in the background of the present case, 29. It has been the case of the appellant that no doubt he was taken to the security room alongwith his bag but some other bag was brought there, from which the contraband was recovered. He has denied that any contraband was recovered from his bag. 30. It is really very strange to note that non-association of the independent and respectable persons of the locality in the personal search of the appellant makes the search violative of section 100 (4) of Cr P. C. There is no doubt that these provisions are all directory in nature, but that does not mean that the police is at liberty not to comply these directory provisions, even when they have time and opportunity to do the same Directory nature of the provisions only means that under the circumstances of a particular case, police had absolutely no opportunity and could not in a way comply with these provisions but this is not the case of that type. 31. 31. In view of the ratio laid down by the apex Court in State of Punjab v. Balbir Singh (supra), in case no strict compliance with the provisions of section 100, Cr.P.C has been made then such search would not be per se illegal and would not vitiate the trial But on the other hand, this aspect has to be kept in mind while appreciating the evidence in the facts and circumstances of each case and while doing so, the court has to consider whether any prejudice has been caused to the accused. 32. In the present case, the non-association of independent and respectable persons, as per requirement of section 100 (4), Cr.P.C. has not been successfully explained which, has definitely resulted in causing prejudice to the case of the defence and the benefit under the circumstances has to be enjoyed by the appellant. 33. It may be referred here that the occurrence took place in Bhunter Airport area at about 2,00 p m. PW 1 HC Rattan Chand stated that it was correct that there were many people present outside the gate of the Airport in the market and also inside the airport gate as passengers at that time. He further deposed that it was correct that there were cold-drink and other stalls inside the airport and the employees of the airport also remained present on duty there. He further added that when he and constable Harnam Singh took the appellant to security room, there were 10-12 police officials present there PW 5 Sh K. K. Indoria, the then Dy. S. P , disclosed that he did not ask SI Nihal Chand to associate independent witnesses because of the situation of the security room, as it was a prohibited place He stated that the security room was at a distance of about 150 meters from the aerodrome office. This witness further added that he was present in the security room at the time of search. 34. The Investigating Officer PW 9 Sh. Nihal Chand deposed in this particular behalf that he did not try to associate any independent-witness in the raiding party, as no private person was allowed entry in the security room at the airport. 35. This witness further added that he was present in the security room at the time of search. 34. The Investigating Officer PW 9 Sh. Nihal Chand deposed in this particular behalf that he did not try to associate any independent-witness in the raiding party, as no private person was allowed entry in the security room at the airport. 35. From the aforesaid evidence, it could be inferred that though the independent and respectable inhabitants of the locality were available, but they were not associated as the search was being conducted in a security room. As referred earlier, this explanation does not appeal to reasoning at all At first instance, there was nothing that the respectable persons could not be taken to the security room for the purpose of the investigation of the case, and secondly, there is absolutely no explanation as to why the search could not be conducted outside the security room. This conduct of the police definitely shows the non-compliance of section 100 (4), Cr. P.-C., which makes the version of the search witnesses to be of doubtful nature. Had the independent and respectable inhabitants of the locality been associated in the search of the appellant, the falsehood as is being alleged on behalf of the prosecution of the defence could be ventilated. In the aforesaid background, the defence of the appellant that the search was conducted of a bag not belonging to him cannot be brushed aside lightly, especially when it is for the prosecution to connect the possession of the Contraband to the appellant by leading independent, reliable and unimpeachable evidence, that too, beyond all reasonable doubt. This aspect of the matter also, does not help the prosecution in any way. Last but not least, it has been contended that under Rule 2 (c) of the Rules framed under the Act "Chemical Examiner" means the Chemical Examiner, Government Opium and Alkaloid Works, Neemuch or, as the case may be Ghazipur, and in the present case, the Chemical Examiner, who has given the opinion does not come within the definition of the aforesaid Rules, therefore, on that account the report Ext. PW 8/A has to be ignored legally. According to learned Counsel, if it is so done, there is no evidence connecting the appellant to be possessing any contraband alleged to have been recovered. 36. PW 8/A has to be ignored legally. According to learned Counsel, if it is so done, there is no evidence connecting the appellant to be possessing any contraband alleged to have been recovered. 36. Learned Assistant Advocate General submitted that some Notification in this behalf has been issued, whereby, the Chemical Examiner, Kandaghat comes within the ambit of Rules and his report under the Act can be taken as an evidence for the purpose of describing the nature of the contraband That Notification has neither been filed nor even produced uptil today. Any way, even if this report can be used as a valid evidence to describe the nature of the contraband, it will not serve the purpose of prosecution so far as the present case is concerned, especially when, on the basis of the discussion referred earlier, the conviction and sentence passed by the trial Court cannot be sustained. 37. In view of the foregoing reasons, the present appeal is accepted and the conviction and sentence under reference are set-aside, and as a consequence thereof, the present appellant is acquitted under section 20 of the Act. The fine, if paid by him, be returned to him and he be set at liberty forthwith, in case not required in any other matter. Appeal allowed. -