JUDGMENT Arun Kumar Goel, J.: We propose to dispose of both these appeals by a common judgment. Facts in both the cases are identical and the incident is of the same date, place as well as time and law points raised are common in both these appeals. 2. In order to properly understand the whole case, brief facts of both the appeals are being given separately, whereafter common law points will be dealt with subsequently. Cr. Appeal No. 119 of 1996 Lucy Carlotte (hereinafter referred to as the appellant) is a British national and she has appealed against her conviction and sentence passed by the Additional Sessions Judge, Kullu, District Kullu in Sessions Trial No.5/95 dated 23.5.1996. The appellant has been convicted to undergo ten years rigorous imprisonment and to pay a fine of Rs. one Lakh, in default of the payment whereof she has been further directed to undergo simple imprisonment for three years for the offence under Section 20 of the Narcotic Drugs and Psychotripic Substances Act, 1985 (hereinafter referred to as the Act). 3. Brief facts of the case are that on 7.11.1995, while PW-11, Roshan Lal, District Inspector of Police, Kullu was in his office he received a secret information that two foreigner ladies are coining from Manikaran to Kullu side in a private bus alongwith CHARAS. On receipt of this secret information, it was reduced into writing by him by means of a written information in Hindi and its photostat copy was placed in the file of the trial court and is marked as Ext.5/A. For ready reference. English translation of it is reproduced herein below :- "To The Deputy Superintendent of Police, Kullu, District Kullu. Sub : Intimation u/s 42(2) N.D.P.S. Act. Sir, I have the honour to state that it has been learnt through reliable sources that in bus No.HP-34-0325 owned by Kullu transport company, coming to Kullu from Manikaran, two foreign ladies are travelling, two foreign ladies are travelling, who are in possession of Charas. The information is reliable. Pursuantly, I, Distt. Inspector, alongwith L.H.C. Chandra, L.C.Tikma Devi, No.222 have proceeded towards Octroi Post for acting, in the matter, under the provision of N.D.P.S. Act. Intimation letter 42(2) N.D.P.S. Act is sent herewith through constable Jagar Hath 239. Sd/- Roshan Lal D.I.P. Distt. Kullu, 7.11.95." 4. The information is reliable. Pursuantly, I, Distt. Inspector, alongwith L.H.C. Chandra, L.C.Tikma Devi, No.222 have proceeded towards Octroi Post for acting, in the matter, under the provision of N.D.P.S. Act. Intimation letter 42(2) N.D.P.S. Act is sent herewith through constable Jagar Hath 239. Sd/- Roshan Lal D.I.P. Distt. Kullu, 7.11.95." 4. A perusal of this letter shows that on receipt of the aforesaid information regarding travelling of two foreigner ladies in bus No.HP-034-325 alongwith Charas, he reduced the same into writing and addressed it to Dy. S.P. Kullu, District Kullu. It is further revealed that the information was sent under Section 42(2) of the Act through Constable Jagar Nath No.239 and names of two lady constables have also been mentioned in this information (emphasis supplied). Further case as revealed by the prosecution evidence is that this written information was personally delivered by this PW-11 in the office of Dy. S.P. as both the offices were located in the same building. Thereafter he is stated to have informed the Kullu Police for deputing two lady constables and one male, constable with the instructions to them to report to Shri Roshan Lal, District Inspector of Police and according to him, they reported to him. Thereafter, all these persons left for the spot and reached near Octroi Post, Shastri Nagar. When the bus in question arrived, it was stopped at a distance of 8/10 steps from the Octroi Post towards Bhuntar Side and PW-11 boarded the same from rear door and found two foreigner ladies sitting therein who were made alight from the bus and one of them was the present appellant. At such time, 5/6 passengers arc also stated to have alighted from the bus and out of them, Kusam Chand (PW-1) and Noop Ram (PW-8) were associated as independent witnesses. These foreigner ladies were taken aside alongwith the witnesses on the road and their antecedents were enquired into when the appellant disclosed her name as Miss Lucy Carlotte Barkar. Investigation of the case registered against Jackman Alison Suson (Appellant in Criminal Appeal No. 120 of 1996) was undertaken first and thereafter the proceedings against the appellant were taken by the police. Investigation of the case registered against Jackman Alison Suson (Appellant in Criminal Appeal No. 120 of 1996) was undertaken first and thereafter the proceedings against the appellant were taken by the police. The appellant is stated to have been informed by means of Ext.P-1 that it is proposed to carry out search on her person since she was suspected to be in possession of Charas which was wrapped in a polythene paper kept in the black sock and tied around the waist by the appellant. On weighment, the quantity of Charas was found 400 grams. Out of this, 50 grams Charas was taken out and was divided into two parts of 25 grams each. Three packets were prepared i.e. two samples of 25 grams each of Charas and the third parcel was of 350 grams of Charas. All the parcels were sealed with the seal bearing impression R and seven seals of mark R were put on each of the three parcels and the seal after use was handed over to Kusam Chand (PW-1) after having retained a samplee thereof separately. Further by means of Ext.PW/1/C, the appellant was informed of her arrest and the grounds for the same. Special report is also stated to have been sent by means of the report dated 7.11.1995 vide Ext.PW-5/B which was received in the office of Superintendent of Police, Kullu on 8.11.1995. 5. In order to sustain its case against the appellant, the prosecution examined Kusam Chand (PW-1), an eye-witness, who has proved on record Ext.PW-1/A, PW-l/B and PW-l/C. PW-2 is Head Constable, Sato Kumar, who had taken charge of M.H.C. Police Station, Kullu from H.C. Lal Singh (PW-3) on 12.11.1995 and had further sent the samples on 27.11.1995 to C.T.L. at Kandaghat. According to him, between 12.11.1995 and 27.11.1995, number of samples were sent by this witness for chemical anlysis to C.T.L. Kandaghat during this period, but he was unable to give the number thereof. He has also unable to give the number thereof. He has also stated that there is no report entered to the effect that Kuldeep Chand used to affix seal K as his name is Kuldeep Chand. PW-3 received the parcels on 7.11.1995 when he was posted as Incharge of M.H.C. at Police Station, Kullu which were delivered to him by S.H.O. Kuldeep Chand. There were two small parcels and one bigger parcel. PW-3 received the parcels on 7.11.1995 when he was posted as Incharge of M.H.C. at Police Station, Kullu which were delivered to him by S.H.O. Kuldeep Chand. There were two small parcels and one bigger parcel. These parcels were sealed with seal M. He handed over the charge on 12.11.1995 when PW-2 joined his duties. He stated that during the period he remained posted as M.H.C. Kullu, S.H.O. did not enter any report in the Roznamcha to the effect that he used to affix seal M. Both PWs-2 and 3 have stated that till the material of the case remained in their custody as M.H.C., those were not tampered with by anybody. PW-4 is Head Constable Baldev Singh, through whom one sample parcel given to him on 27.11.1995 by M.H.C. Sato Kumar of Police Station, Kullu was deposited by him in the C.T.L. at Kandaghat on 28.11.1995 and Road Certificate No.290/95 was given to him. The sample was sealed with the seal M and receipt was obtained by this witness on the Road Certificate which was handed over to him on his return from the laboratory to Sato Kumar, M.H.C. He states that so long the parcel remained in his custody, it was not tampered with by anybody. PW-5 is Constable Nidhi Singh, Reader to Superintendent of Police, Kullu. He proved on record that he was posted as Reader to Superintendent of Police, Kullu and true copy of the information was placed on the record as Ext.PW-5/A and photostat copy of the Special Report has been placed on the record as ExtPW-5/B. He has also shown that the entry in this behalf is at Sr.No.16 in the office of Superintendent of Police, Kullu. PW-6 is Hari Pal Singh, who was posted as Reader to Superintendent of Police on the relevant date i.e. 7/8.11.1995. According to this witness, on 8.11.1995 at 10 AM, Dy S.P. Kullu handed over the information report pertaining to the present case to this witness. After seeing the photostat copy of the information, he stated that it was handed over to him on that day. At the Same time, Superintendent of Police, Kullu is stated to have handed over the Special Report, Ext.PW5/B to this witness concerning this case. Such documents were handed over to him to be kept on record. After seeing the photostat copy of the information, he stated that it was handed over to him on that day. At the Same time, Superintendent of Police, Kullu is stated to have handed over the Special Report, Ext.PW5/B to this witness concerning this case. Such documents were handed over to him to be kept on record. PW-7 is ASI, Chandra who has stated that on 7.11.1995 on receipt of a telephonic message in Police Station, Kullu where she was posted, two lady police officials and one male constable were directed to report to Shri Roshan Lal, Inspector which all of them did. Thereafter, all of them are stated to have been informed that they had to accompany him to Shastri Nagar. According to her at 2.30 PM, bus bearing registration No.HP-34-325 came there and was stopped by Shri Roshan Lal (PW-11). She further states that Shri Roshan Lal after having made two foreigner ladies to alight from the bus, checked their passports. Shri Roshal Lal is stated to have further informed in the presence of witnesses and police officials firstly Ms. Jackman Alison Suson that since the police had information of her having Charas and as such her search was required to be undertaken. Thereafter her person was searched. After this, identical information is stated to have been given to the present appellant and with her consent, her person was searched by this witness. During the course of such personal search, she recovered something in a black colour sock which was tied around the waist by the appellant and it was handed over by her to Shri Roshan Lal, Inspector. On further search having been made by Shri Roshan Lal, Inspector, Charas was found which was in the shape of sticks wrapped in a paper therein. She has also proved Exts. PW- 1/A, memo regarding search, PW-l/B, memo regarding recovery of Charas and PW-l/B, information regarding the arrest and grounds thereof having been informed to the appellant. 6. PW-8 is Shri Noop Ram, the other so-called indenpendent witness and he is the God brother of PW-1, Kusam Chand, PW-9 is Jagar Nath, Constable who states that he was present alongwith Shri Roshan Lal, Inspector and other police officials, when at about 5.15 PM, he was given a Ruqua in this case with direction to hand over to M.H.C. Police Station, Kullu. This Ruqua was proved by him as Ext.PW-9/A and it was handed over by him to M.H.C. Police Station, Kullu who registered the case vide Ext.PW- 9/B against the appellant. According to this witness, after registration of the case, he was handed over the file which he took to the spot and in such handed over the same to the S.H.O., Shri Roshan Lal, Inspector. PW-l0 is Kuldeep Police Station, Kullu, who has stated that on 7.11.1995, Roshan Lal, Inspector had produced three parcels-of the case sealed with the seal R before him and those were re-sealed with seal M by this witness and were handed over to M.H.C. Police Station, Kullu for safe custody in the Malkhana. This witness is stated to have recorded the statements of ASI, Hari Pal Singh, H.C. Lal Chand, M.H.C. Sato Kumar, Constable Nidhi Singh and Constable Baldev Singh. He states that impression of seal M was obtained on a piece of cloth for the purpose of sample which he has proved as Ext.PW- 10/A. This witness produced the seal M in the court. After completion of the investigation and on receipt of the report from the laboratory vide Ext.PW-10/B, he prepared the challan and filed the same in the court against the appellant. 7. PW-11 is the Inspector, Roshan Lal, who was then posted as District Inspector of Police, Kullu. According to him, on 7.11.1995, on receipt of secret to him, on 7.11.1995, on receipt of secret information regarding the travelling of two foreigner ladies in the bus in question and also being in possession of Charas, he reduced the information in writing as reproduced in the preceding paras of this judgment. It has come in his statement that he delivered the written information in the office of Deputy Superintendent of Police, Kullu personally. Thereafter, he is stated to have telephoned Police Station, Kullu to depute two female Police Officials and one male police official with a direction to them to report to this witness. According to him, on the basis of this message given by him, L H.C. Chandra (PW-7), Lady Constable Tikma Devi and Jagar Nath (PW-9) reported to him. Thereafter, all of them left for the spot and reached near Octroi Post, Shastri Nagar. After the bus had arrived, it was stopped 8/10 steps from the Octroi Post towards Bhuntar side. According to him, on the basis of this message given by him, L H.C. Chandra (PW-7), Lady Constable Tikma Devi and Jagar Nath (PW-9) reported to him. Thereafter, all of them left for the spot and reached near Octroi Post, Shastri Nagar. After the bus had arrived, it was stopped 8/10 steps from the Octroi Post towards Bhuntar side. When this witness entered the bus from its rear window, she found the appellant and other foreigner lady sitting in the bus in question. Both these ladies are stated to have been made to alight from the bus. Appellant was one of such ladies. According to him, 5/6 passengers alighted from the bus and out of who two i.e. Kusam Chand (PW-1) and Noop Ram (PW-8) were associated as independent witnesses. It has further come in his evidence that after verifying the antecedents from the appellant and other foreigner lady, investigation in the case of other foreigner lady Jackman Alison Suson was completed and thereafter the appellant was informed about the suspicion of her being in possession of some contraband and as such her search was required to be undertaken. According to prosecution, this witness apprised the appellant of her right to be searched before a Magistrate or a Gazetted Officer or by the Police. This information is stated to have been given in English to the appellant and its resume was given to her in Hindi vide Ext.PW-1/A. This document is stated to have been prepared in the presence of this witness and the appellant. At such time, according to this witness, the appellant is stated to have given her consent for being searched by L.H.C. Chandra (PW-7) and, in fact, search was undertaken by the said witness upon the person of the appellant when the contraband in question was found to be put in a polythene bag, then in a black sock and tied around her waist by the appellant. The quantity of this contraband was found to be 400 grams on its weighment and thereafter sample was taken and packets were prepared by this witness on the spot. After this, seizure memo was prepared vide ExtPW-1/B and the appellant was informed regarding her arrest as well as grounds thereof vide Ext.PW-1/C. This witness is stated to have sent the Ruqua through PW-9 on the basis whereof F.I.R. was registered in the present case. After this, seizure memo was prepared vide ExtPW-1/B and the appellant was informed regarding her arrest as well as grounds thereof vide Ext.PW-1/C. This witness is stated to have sent the Ruqua through PW-9 on the basis whereof F.I.R. was registered in the present case. The case property was handed over by this witness to Shri Kuldeep Chand, S.H.O. Police Station, Kullu, who according to this witness, had resealed the same with seal M and the parcels were handed over in the Malkhana of Police Station, Kullu. This witness stated that he had recorded the statements of witnesses on the spot before coming to the Police Station. Vide Special Report, Ext.PW-5/B, he is stated to have handed over the Special Report at the residence of the Superintendent of Police, Kullu at 8.00 AM on 8.11.1995. As aforementioned, he states that he had personally delivered Ext.PW-5/A to Dy S.P. Kullu at about 1.45 PM and Jagar Nath, constable had reached the office after 15 minutes thereafter. He denies the suggestion that Ext.PW-5/A is the result of fabrication and further in one breath he states that L.H.C. Chandra had written her statement in her hand and on the direction of this witness, whereas in the next breath, he stated that he had recorded the statements of PWs. Kuldeep Chand, Noop Ram, and L.H.C. Chandra marked A,B and C correctly as per their version. He shows his forgetfulness as to who scribed Ext.PW-1/B and Ext.PW-1/C, although he says that consent memo, Ext.PW-l/A is in the hand of L.H.C. Chandra. Similar is his stand of forgetfulness regarding the preparation of Ext.PW-5/A and Ext.PW-5/B. However, he is positive that both these are not in his hand. 8. This is the entire evidence in this case on which the prosecution has based its case resulting in the conviction and sentence of the appellant by the trial court which she has impugned in the present appeal. 9. Criminal Appeal No.120 of 1996. 8. This is the entire evidence in this case on which the prosecution has based its case resulting in the conviction and sentence of the appellant by the trial court which she has impugned in the present appeal. 9. Criminal Appeal No.120 of 1996. All material facts of this case are identical as in the case of Criminal Appeal No. 119 of 1996 except that in this case, the information was sent under Section 42(2) of the Act to Superintendent of Police, Kullu vide Ext.PW-5/B and Special Report in this case is Ext.PW-5/A. Similarly, the report of the Chemical Examiner, C.T.L. Kandaghat is Ext.PW-10/A. Otherwise the evidence is identical except that the Sr.No. of witnesses has changed inasmuch as that PW-1 is Kusam Chand, PW-2 is L.H.C. Chandra, PW-3 is Nup Ram, PW-4 is Constable Jagar Nath, PW-5 is H.C. Nidhi Singh, PW-6 is ASI Hari Pal, PW-7 is LHC Baldev Singh, PW-8 is Lal Singh, ASI, PW-9 is H.C. Sato Kumar, PW-10 is Kuldeep Chand, Inspector and PW-11 is Roshan Lal. In both the cases, Chemical Examiner had reported that the samples sent for examination were found to be containing the contents of Charas and thus, the appellants were prosecuted and convicted as well as sentenced by the trial court as aforesaid. 10. On the aforesaid facts, we have heard the learned counsel for the parties in both the cases. We have also gone through the records of the cases minutely. 11. Learned counsel for the appellants has raised the following points in support of his case:- (a) There is non-compliance with the provisions of Section 42 of the Act; (b) Non-compliance with the provisions of Section 50 of the Act. (c) Presence of independent witnesses is totally doubtful; (d) Possibility of tampering with the samples cannot be ruled out; (e) Non-compliance with Section 55 of the Act; (f) No evidence of preparation of NCR-I Form on the spot; .and (g) Inordinate and unexplained delay in sending the samples to Chemical Examiner. 12. The first and foremost question that needs consideration is whether the provisions of Sections 42, 50 and 55 of the Act are mandatory or directory. If the answer is that those are mandatory, does the non-compliance therewith vitiate the trial? 13. 12. The first and foremost question that needs consideration is whether the provisions of Sections 42, 50 and 55 of the Act are mandatory or directory. If the answer is that those are mandatory, does the non-compliance therewith vitiate the trial? 13. According to the learned counsel for the appellants, the matter is no more in controversy in view of the recent decisions of the Honble Apex Court reported in (1994) 3 SCC 299, State of Punjab v. Balbir Singh. The relevant observations in this judgment are in sub-paras (2-C) and (3) of para 25 which are to the following effect:- "2(C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal konwledge that offences under Chapter IV have been committed or m aterials which may furnish evidence of commission of such offences arc concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between-sunset and sunrise, he must record the grounds and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would effect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case." 14. To similar effect is A.I.R. 1995 SC 2M, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala and the relevant observations are in paragraphs 5 to 7 which are to the following effect:- "From the testimony of PW6, it is apparent that before reaching the first class waiting room at the railway station, he had received information that a foreigner was sitting with charas at the railway station. The appellant was thereafter spotted and subjected to search and from his possession allegedly 780 grms of charas was seized. Undoubtedly, before the search of the appellant was made, he was not given any option as to whether he desired to be searched in the presence of a gazetted officer or a Magistrate as envisaged by Section 50. In State of Punjab v. Balbir Singh (AIR 1994 SCW 1802) (supra) it has been held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a gazetted officer or a Magistrate. It was also held that 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 and the failure to provide that option to the accused vitiates his conviction. The Court expressly held the provisions of Section 50 to be mandatory, the non-compliance whereof would vitiate the conviction. 6. Learned counsel for the respondents on the other hand submitted that the question of giving option to the accused in compliance with Section 50 of the Act is subject to the condition that the accused "requires" that, he be searched in the presence of a gazetted officer or a Magistrate but where the accused does not so require for whatever reason his conviction would not stand vitiated, in case the option was not given to him. A similar argument had been advanced in Balbir Singhs case (AIR 1994 SCW 1802) (supra) and the Bench repelled the same after a detailed discussion and observed (at pp. 1819-20 of AIR): "The words "if the person to be searched so desires" arc important. One of the submission is whether the person who is about to be searched should by himself make request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to 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 credit worthiness 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 authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. (emphasis supplied)." 7. We respectfully agree with the above observations and reject the submission made on behalf of the respondent. 15. A.I.R. 1995 SC 1157, Mohinder Kumar v. State of Panaji, Goa is also to the same affect and which following its earlier view of (1994) 3 SCC 299 supra, it has been reiterated that the provisions of Sections 42 and 50 of the Act dealing with the steps to be taken by the Officer making arrest, search or seizure are mandatory in nature. Due to non-compliance of such provisions accused is entitled to be acquitted. 16. In JT 1996(6) SC 598, State of Punjab v. Labh Singh, while following the ratio of the case of State of Punjab v. Balbir Singh (supra), it has been held as under:- "2. These appeals arise under the Narcotic Drugs and Psychotropic Substances Act, 1985. The respondents were acquitted on trial on the ground that they were not informed of their valuable right that under Section 50 of the Act they were entitled to be searched in the presence of a Gazetted Officer. Violation thereof vitiates the trial as the accused have the statutory right to be searched. The absence of their information as to the said right is one of the infirmities to the validity of their prosecution. "3. The question was considered in State of Punjab v. Balbir Singh (JT 1994 (1) SC 427-1994) 3 SCC 299). Violation thereof vitiates the trial as the accused have the statutory right to be searched. The absence of their information as to the said right is one of the infirmities to the validity of their prosecution. "3. The question was considered in State of Punjab v. Balbir Singh (JT 1994 (1) SC 427-1994) 3 SCC 299). Subsequently, another Bench of this Court in State of Punjab v. Jasbir Singh (JT 1995 (9) SC 308 -1996 (1) 288) has pointed out that it would be open to the search officer to inform the suspect, at the time of search, that he is entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been so informed and that the acused has waived that right. Thus it would form part of the record as contemporaraneous evidence. Thereafter, it may not be open to the accused to take the plea of non-compliance of Section 50. It would be fore the court to consider, at the trial, whether the officer who conducted the search, had, as a fact, informed the accused of that right and whether the accused had waived that right of being searched only in the presence of a Gazetted Officer. This Court held that: "The matter of appreciation of evidence and the totality of the facts and circumstances have to be considered by the trial Court. On the facts in that case, it was held that since the Additional Sessions Judge was not inclined to accept the prosecution case in the absence of anything in writing, this court confirmed the acquittal." 17. While dismissing the appeal of the State, it has further been observed that each case would be considered in the light of the facts and circumstances in which the contraband was seized. It has further been held that in view of the settled legal position, an accused has a valuable right to be informed of his right to be searched in the presence of a Gazetted Officer and the search officer invariably would conduct the same subserving the rights given. In these circumstances, it is clear that the non- compliance with the provisions of Section 42 is mandatory and non-compliance therewith entitles the accused for acquittal. 18. In these circumstances, it is clear that the non- compliance with the provisions of Section 42 is mandatory and non-compliance therewith entitles the accused for acquittal. 18. Now, coming to the facts of the appeals in question, there is no dispute that this is a case of prior information being available with the police after reducing the information into writing, PW- 11 is stated to have sent the information to Dy. Superintendent of Police, Kullu in the case of the appellant in Criminal Appeal No. 119 of 1996 and to the Superintendent of Police in Criminal Appeal No. 120 of 1996 vide Exts. PW-5/A and PW-5/B, respectively. Information was one and its photostat copies were placed on the record of both the cases. At this stage, it may be appropriate to extract a few lines from the statement of this witness:- "The photostat copy of the said information is Ex.PW5/A. Thereafter 1 telephoned to Police Station, Kullu to depute two female police officials and one male with directions to them to report me in the S.P. Kullu. In view of the message given by me LHC Chandra, Constable Tikma and Constable Jagan Nath reported to me." "I had given the intimation to the Dy. S.P. Personally. Though I have written in Ex.PW5/A that the information is being sent through constable Jagar Nath as he had to report to me, however, since the office of the Dy. S.P. is located in the same building, therefore, I had personally delivered Ex PW5/A to the Dy.S.P. I have given the Ex.PW5/A to Dy. S.P. at about 1.45 p.m. and Constable Jagar Nath had reached after 15 minutes thereafter." 19. This clearly shows that the witness after receipt of information had rung up to Police Station, Kullu for deputing two lady constables and one male constable with a direction to report to the said witness who arc stated to have reported to him and thereafter all of*them are stated to have left for the spot. It has further come in his cross-examination that Jagan Nath, constable had reached 15 minutes after the delivery of information i.e. Ext.PW-5/A in the office of Deputy Superintendent of Police, kullu. It has further come in his cross-examination that Jagan Nath, constable had reached 15 minutes after the delivery of information i.e. Ext.PW-5/A in the office of Deputy Superintendent of Police, kullu. If that was so, it is not understood as to how the names of two lady constables and one male constable were mentioned by PW-l 1 in Ext.PW-5/A. This further leads to the irresistible conclusion that his document came into existence after the investigation had been undertaken and was scribed thereafter by whom is not knwon. Thus, the very basis of the case falls to the ground. 20. Now, coming to the other contention raised on behalf of the appellants regarding the non-coimplance with the provisions of Section 50 of the Act, it may not be out of place to mention here that the provisions of Section 50 are not a mere formality to be performed, but a duty is enjoined upon the Officer concerned to inform the accused of his right and thereafter record the consent of such accused. Grant of option and exercise of right by a person to be searched is not a mere formality and unless such a person is made aware of his right, there is no question of his having exercised his right. There is no evidence on record to show that the appellants were made aware of their right by PW-11 regarding their right to be searched either in the presence of a Magistrate a Gazetted Officer or they consented to be searched by a police officer. In fact, the mandate of law i.e. Section 50 of the Act has been followed more in its breach than compliance by PW-11, while preparing Ext.PW-1/A and on this ground also, the submission made on behalf of the appellants is upheld. In this behalf PWs.Kusam Chand (PW-1). Lady Head Constable Chandra (PW- 2) and Noop Ram (PW-8) also do not say even a word about the appellants having been apprised of their legal right granted to them under Section 50 of the Act. That being the position, it is held that Ext.PW-1/A does not meet the requirements of law both as contained in Section 50 of the Act and as declared by the Honble Apex Court in the aforesaid judgments. That being the position, it is held that Ext.PW-1/A does not meet the requirements of law both as contained in Section 50 of the Act and as declared by the Honble Apex Court in the aforesaid judgments. Ext.PW-1/A, information regarding personal search given to the appellants is otherwise also doubtful inasmuch as that it neither formed a part of the challan that was filed in the court nor it was relied upon in the documents upon which the prosecution intended to sustain the charge against the appellants, although there is a reference to it in the report under Section 173 Cr.P.C. The production of this document was objected to by the learned counsel for the appellants during the course of trial. However, the plea was not accepted by the trial court and its production was allowed. 21. Presence of PW-1, Kusam Chand and Noop Ram (PW-8) also appears to be prima facie improbable. Everything transpired in English between PW-11 and the appellants and PW-8 has categorically stated that he does not know even the alphabets of English language. Similar is the position in respect of PW-1, who states that he is an under-matric and has little knowledge of English. He cannot understand the conversation if held with him in English. In these circumstances, what transpired on the spot is not made out from the statements of these witnesses and it is not the case of the prosecution that the appellants knew Hindi. It may not be out of place to mention here that PWs-1 and 8 have stated in their respective statements that they had got down from the bus of their own, whereas PW-11 Roshan Lal had stated that they were associated as independent witnesses. It has also come into evidence that at the Octroi Post, the staff of Municipal Committee, Kullu was there as also there are shops. Why such witnesses were not associated, is not understandable) Thus, it is held that the presence of the so-called witnesses is highly -improbable on the spot. 22. Now, we come to the contention regarding non-preparation of NCR-I Form on the spot. Learned counsel for the appellants had referred to the original of Ext. P W-10/B in Criminal Appeal No. 119 of 1996 and Ext. PW-10/A in Criminal Appeal No.120 of 1996. 22. Now, we come to the contention regarding non-preparation of NCR-I Form on the spot. Learned counsel for the appellants had referred to the original of Ext. P W-10/B in Criminal Appeal No. 119 of 1996 and Ext. PW-10/A in Criminal Appeal No.120 of 1996. So far as the seal of R which is stated to have been affixed by PW-11 thereon is concerned, in fact, it is firstly impressed upon a small piece of paper which has been pasted on the original of both the documents in these cases. There is no evidence on record to show that seal impression R was taken on a paper and affixed on the original NCR-I Form on the spot which was sent to the C.T.L. Kandaghat for chemical analysis. In this view of the matter, it has been rightly submitted by the learned counsel for the appellants that these were not prepared on the spot. Even PW-11 has not said anything regarding the pasting of the seal impressions on these forms and thus, this contention is also held in favour of the appellants. 23. Regarding other three points, suffice to say that there is no evidence directly much less otherwise from which it can be inferred that there was any tampering with the samples in question, while those were in the custody of police. However, the fact remains that the contraband in question was seized admittedly on 7.11.1995 and till 27.11.1995, it was not dispatched to the laboratory for its examination, more especially when there is evidence of PW-2. Head Constable Sato Kumar to the effect that between 12.11.1995 and 27.11.1995, he was not in a position to say how many samples were sent by him for chemical analysis to C.T.L. Kandaghat. However, he states that number of samples were sent to the laboratory. Suffice to say in this behalf that in all fairness, the prosecution ought to have sent the samples in question with promotitude and utmost expedition. This is otherwise necessary to be done to ensure that the defence is not in any manner prejudiced and on account of laxity on the part of the official concerned, the culprits are not let loose. So far the matter relating to non-compliance of Section 55 of the Act is concerned, we are not going into this question at this stage as the appeal is being allowed on other grounds as detailed hereinabove. So far the matter relating to non-compliance of Section 55 of the Act is concerned, we are not going into this question at this stage as the appeal is being allowed on other grounds as detailed hereinabove. 24. From whatever angle the case of appellants may be examined, it is clear that the appellants are entitled to acquittal for non- compliance of mandatory provisions of law and the trial court had fallen into grave error by completely ignoring that aspect of the matter. 25. As a result of the aforesaid discussion, both the appeals arc allowed and the appellants who are in custody are ordered to be set at liberty forthwith unless required in some other case.