S. C. DATTA, J. ( 1 ) THE appeal is directed against the order dated 15-5-1993 passed by the 2nd Additional Sessions Judge, Cuttack, convicting the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act. 1985 {hereinafter referred to as the Ace) and sentencing him to undergo R. I. for five years and to pay fine of Rs. 50,000/- in default to undergo R. I. for one year more. ( 2 ) BRIEFLY stated the prosecution case is that on 14-12-1990, the Sub-Inspector of Excise (P. W. 2) was on patrol duty alongwith his staff (P. W. 1) near the Cuttack Railway Station. At about 9 p. m. he noticed the accused coming out of the Railway Station and proceeding towards the Taxi Stand. He was a leper and was seen carrying two bags in his hand. His movements aroused suspicion and as such he was detained by the Sub- Inspector of Excise (P. W. 2) The Sub-Inspector of Excise (P. W. 2) disclosed his identity and wanted to know whether he intended to be searched by a Gazetted Officer or by a Magistrate. The accused raised no objection for being searched by P. W. 2 and on P. W. 2 after observing all the formalities of search took the personal search of the accused and recovered two bags. On weighing and examination it was noticed that each bag contained 5 kgs of Ganja. The accused had no authority to possess the same and as such he was taken to custody. The articles were seized and sample was taken. Later sample was sent for chemical analysis and on receipt of the report of the analyst the accused was prosecuted. ( 3 ) DURING trial only two witnesses were examined by the prosecution. They are the Sub-Inspector of Excise (P. W. 2) and an Excise Constable (P. W. 1 ). The independent witness viz. , Natha Das though present in court was not examined by the prosecution. ( 4 ) THE defence was a plea of innocence. The accused pleaded that he being a leper was loitering near the Cuttack Railway Station for the purpose of begging when he was apprehended. ( 5 ) ON conclusion of trial the learned Sessions Judge found him guilty and convicted him as aforesaid. ( 6 ) BEING aggrieved by the order of conviction and sentence, the accused has appealed. The accused pleaded that he being a leper was loitering near the Cuttack Railway Station for the purpose of begging when he was apprehended. ( 5 ) ON conclusion of trial the learned Sessions Judge found him guilty and convicted him as aforesaid. ( 6 ) BEING aggrieved by the order of conviction and sentence, the accused has appealed. Learned counsel appearing for the appellant, contends that the mandatory provisions of the Act regarding search, seizure, taking of sample sending of articles etc. have not been complied with and as such the trial is vitiated entitling the appellant to acquittal. In particular, he contends that the provisions of Section 50 of the N. D. P. S. Act have not been complied with. Learned counsel for the appellant also contends that there has been violation of the provisions contained in Sections 52 and 57 of the Act and as such, the appellant is entitled to acquittal. In this connection, he has drawn my attention to the decision of the Apex Court in State of Punjab v. Balbir Singh. He also submits that the same view has been reiterated by the Supreme Court in a case reported in T. P. Razak alias Nagappan Razak v. State of Kerala. ( 7 ) IN State of Punjab v. Balbir Singh (supra) the Apex Court has set out certain conclusions in paragraph 26. Sub-paragraphs 5 and 6 of the said paragraph are relevant for our purpose which are quoted below: (5) On prior information the empowered officer or authorised officer while acting under Sections 41 (2) or 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 there Under. 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. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57, which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. , then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. ' ( 8 ) KEEPING in view the conclusions arrived at by the Supreme Court we are now to examine whether the prosecution has been successful in establishing that the mandatory provisions of Section 50 of the Act have been complied with or not. It is not in dispute that the Sub-Inspector of Excise (P. W. 2) is one of the authorised, officer of the department. He had retained the accused being suspicious about his movements while the latter was coming out of Cuttack Railway Station and proceeding towards Taxi Stand. The Excise Constable (P. W. 1) accompanied him (P. W. 2) at that time. It has been stated that one Natha Das was present when the accused was detained and searched. P. W. 2 says in his evidence that he enquired from the accused whether he would like to be searched by a Gazetted Officer or by a Magistrate. He states also that the accused having raised no objection for search by him, he was searched and two bags each bag containing 5 Kgs of Ganja were recovered from his possession. It has been stated that Sib Charan Lenka (P. W. 1) and one Natha Das were present during this search and seizure. It appears that Natha Das was present during trial but the prosecution, choose not to examined him No explanation has been offered as to why Natha Das though present at the time of search and seizure has not been examined. It has been elicited from P. W. 2 that he did not record the fact that he enquired from the accused whether he wanted to be searched by a Magistrate or by a Gazetted Officer of that accused agreed to be searched by him. It has been elicited from P. W. 2 that he did not record the fact that he enquired from the accused whether he wanted to be searched by a Magistrate or by a Gazetted Officer of that accused agreed to be searched by him. It also appears from his testimony that he has not mentioned it either in the seizure list or in the prosecution report. Of course he has asserted that he had enquired from the accused as to whether he wanted to be searched in presence of a Magistrate or a Gazetted officer and that the accused raised no objection to being searched by him. P. W. 1 is the Excise Constable. We find from his evidence that the search and seizure as made at the Taxi stand. He says that the taxi stand is a crowded place. He admits that nothing was written in the seizure list to show that the accused wanted to be searched by the Sub-Inspector of Excise. We find also from his evidence that P. W. 2 wanted to know from the accused as to what was the content of the bags and excepting that he did not ask anything. This being the position, it is difficult to believe the statement of Sub-Inspector of Excise (P. W. 2) to the effect that he had enquired form the accused whether he wanted to be searched in presence of a Gazetted officer or a Magistrate. The incident happened near the Taxi stand outside the Cuttack Railway Station. According to Excise Constable (P. W. 1) it is a crowded place. So many persons were available but the services of only one independent person was utilised but even then the said person though present in Court was not examined by the prosecution. Therefore it is not difficult to conclude that the prosecution has failed to establish that there was compliance with the provisions of section 50 of the Act before conducting the search of the appellant. In view of the non-compliance with the mandatory provisions of section 50 of the act, no reliance can be placed on the alleged search of the person of the appellant and alleged recovery of two bags from his possession. The conviction and sentence imposed on the appellant cannot, therefore, be upheld and has to be set aside. In view of the non-compliance with the mandatory provisions of section 50 of the act, no reliance can be placed on the alleged search of the person of the appellant and alleged recovery of two bags from his possession. The conviction and sentence imposed on the appellant cannot, therefore, be upheld and has to be set aside. ( 9 ) LEARNED counsel for the appellant has drawn my attention to the fact that the Sub-Inspector of Excise has failed to comply with the provisions of sections 52 and 57 of the Act. In this connection, it is apt to refer sub-paragraph (5) of paragraph 26 of the case reported in A. I. R. 1994 S. C. 1872. Therein the Supreme Court held that the provisions of sections 52 and 57 are not mandatory. Nevertheless, the fact remains that there has been total noncompliance of the provisions of sections 52 and 57 of the act. Section 52 (3) of the Act provides that every person arrested and article seized under Sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to a. the Officer-in-charge of the nearest police station or, b. the officer empowered under section 53. Sub-section (4) thereof also enjoins that the authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section)3) shall, with all convenient despatch, take such measures as may be necessary, for the disposal according to law of such person or article. Section 55 enjoins as follows:55. Police to take charge of articles seized and delivered- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-incharge of the police-station. ( 10 ) IT appears from the evidence of P. W. 2 that he submitted the prosecution resort on 2-4-1991 and the seized materials were all along in his Malkhana. ( 10 ) IT appears from the evidence of P. W. 2 that he submitted the prosecution resort on 2-4-1991 and the seized materials were all along in his Malkhana. According to him, the seizure was made on 14-12-1990 and the property was in his custody till 2-4-1991. It is not complained as to why P. W. 2 failed to comply with the provisions of sections 52 and 55 of the Act. It appears from the evidence of P. W. 1 that the place of seizure was only 50 cubits away from Cuttack G. R. P. S. It is not known why the article seized and the accused were not taken to the police station. When the articles seized and the sample sealed remained all through with P. W. 2 and there was every possibility of tampering, it cannot be said that the sample which was sent for chemical analysis was in fact the sample drawn from the seized article. As observed by the Supreme Court in the decision reported in Valsala v. State of Kerala. In the absence of clear evidence regarding the safe custody of the articles seized and the sample, it would be hazardous to convict the accused person. It is, of course, true that the provisions of sections 52 and 55 of the act are directory in nature and they are not mandatory. Even then non-compliance of the provisions of sections 52 and 55 makes the prosecution case suspicious. ( 11 ) FOR all the aforesaid reasons, the order of conviction and sentence cannot be sustained. So the appeal is allowed and the order of conviction and sentence is set aside. The appellant shall be released forthwith if he is not required to be in custody in connection with any other case. Appeal allowed.