Judgment B.P.Sharma, J. 1. This appeal has been filed on half of sole appellant Suresh Bhagat who has been convicted of an offence under Section 23 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter to be referred to as the Act), by an order dated 28th September 1996 passed by the 5th Additional Sessions Judge, East Champaran, Motihari in Excise Case No. 102 of 1995, Trial No.6 of 1996. The appellant has also been sentenced to undergo R.I. for 12 years and also to pay a fine of Rs.1,00,000/- (Rupees one lac) and, in default, to undergo R.I. for three years by an order dated 1st October, 1996. 2. The prosecution story, in short, is like this: On 18th October 1995, the Officer Incharge of Chhatauni Police Station, within the district of East Champaran, received a confidential information at 12.30 P.M. that one person was found moving in the local bus stand in order to board some bus and he was holding a Jhola with him. On the basis of this information, the Officer In-charge recorded a Station Diary No.289 of the date and he proceeded for the Govt. bus stand along with Sub-Inspector J.N.Pandey and constable No.711 Ravindra Kumar Singh and Constable No.766 Srikant Rajak for verification of the information. When the Police party arrived at the bus stand, it located a person holding a Jhola in his hand trying to escape, as he saw the police party. He was caught with the help of the associates by the Officer In-charge and his person was searched in presence of two Independent witnesses, namely, Ramadhar Thakur and Lakshmi Prasad. When the Jhola, found in possession of the said person, was searched, two plastic packets were recovered from inside the Jhola in which two kgs. of Charas was recovered. The cost of material was about Rs. 80,000/-. The Police Officer prepared a seizure list in presence of witnesses and on enquiry, the said person disclosed his name to be Suresh Bhagat. He could not explain the possession of the article recovered from his Jhola. of Charas was recovered. The cost of material was about Rs. 80,000/-. The Police Officer prepared a seizure list in presence of witnesses and on enquiry, the said person disclosed his name to be Suresh Bhagat. He could not explain the possession of the article recovered from his Jhola. Accordingly, he was arrested and brought to the Police Station where the case was registered u/s 20(b)(ii) of the Act and the investigation was entrusted to S.I. J.N. Pandey (P.W.2) who conducted the investigation in the case and, on completing the formalities, he submitted charge sheet on the basis of which, cognizance was taken and the case was tried by the 5th Addl. Sessions Judge, East Champaran at Motihari and the judgment and order under appeal were passed. The defence of the accused in the case was a complete denial of allegation. It was denied that the Jhola in question was recovered from his possession and it was alleged that he was caught on suspicion under some confusion. 3. For proving the charge against the appellant, the prosecution examined seven witnesses in all. Out of them, P.W.1 Kamal Kishore is the informant of the case who happened to be the Officer In-charge of the Police Station concerned at the relevant time and on the basis of confidential information, after recording Station Diary entry, he had gone to the P.O. bus stand along with some persons and he claimed to have caught the appellant under suspicious circumstance moving with a Jhola. He has also stated that the recovery of Jhola was made in presence of two independent witnesses, namely, P.W.5 Lakshman Prasad and P.W.6 Ramadhar Thakur and on search being made of the Jhola, 2 kgs. of Charas were recovered kept in polythene packets which were seized and a seizure list was prepared in presence of these witnesses. So far as the statement of the informant (P.W.1) is concerned, it has been supported by the constable Ravindra Kumar (P.W.3) and Srikant Rajak (P.W.4) and they have also stated that the search was made in their presence and the recovery was made. They were the two constables accompanying the Officer In-charge (P.W.1). So far as the statement of the informant (P.W.1) is concerned, it has been supported by the constable Ravindra Kumar (P.W.3) and Srikant Rajak (P.W.4) and they have also stated that the search was made in their presence and the recovery was made. They were the two constables accompanying the Officer In-charge (P.W.1). So far as other two witnesses who are said to be the independent witnesses are concerned, P.W.5 Lakshman Prasad simply proved his signature (Ext-3) on the seizure list (Ext-1), but in his cross-examination, he stated that he was called at the Police Station by the Officer In-charge and was asked to sign the seizure-list which was prepared from before. In answer to the court question, he clearly stated that he had no knowledge as to where the accused was arrested. Another witness, who is owner of a Saloon in front of the Police Station, P.W.6 Ramadhar Thakur was tendered. However, in his cross- examination, he stated that nothing was recovered in his presence and he put his signature on the paper in the P.S. So he has also ruled out the possibility of the seizure having been made in his presence. It is, therefore, clear that the two independent witnesses who are said to have witnessed the search and seizure have failed to support the prosecution story and the other witnesses who were present, according to the prosecution story, happen to be the police personnel. Out of them, P.W.3 Ravindra Kumar Singh, a constable, has stated in his examination in-chief that the appellant was caught when he was trying to run away on arrival of police party with a Jhola in his hand and Charas was recovered from his Jhola. But in his cross-examination he has clearly stated that when two witnesses were called by the Officer-in-Charge, the Jhola was held by the Officer-In-charge himself and the witnesses put their signature on the seizure list in the P.S. Another witness Srikant Rajak (P.W.4), who was another constable who accompanied the Officer In-charge, has been tendered. Therefore, from the evidence of all these witnesses it appears that the seizure was not made in proper manner and the seizure-list was unilaterally prepared by the Officer In-charge and two witnesses on the seizure list-signed the same without witnessing the search and seizure. 4. Therefore, from the evidence of all these witnesses it appears that the seizure was not made in proper manner and the seizure-list was unilaterally prepared by the Officer In-charge and two witnesses on the seizure list-signed the same without witnessing the search and seizure. 4. The Investigating Officer of this case, P.W.2 Jagat Narayan Pandey, also happened to be present at the time of alleged search and seizure and it does not appear to be proper that a person who was himself witness of the occurrence was entrusted with the investigation of the case. However, he has tried to support the prosecution story in his evidence in court, but so far as the question of taking sample and sending the same to the expert is concerned, he has admitted in his cross-examination that the sample was not taken in presence of any witness and the accused was also not present at that time. It is also significant to note that whereas the seizure was made on 18th October 1995, the sample was taken on 23rd December, 1995, i.e. more than two months after the recovery. Therefore, the manner of taking of sample and sending the same to the expert has also been challenged by the defence in this case. 5. It has been contended on behalf of the appellant that the entire search and seizure in the present case becomes doubtful and actually illegal, apart from the fact that the search and seizure was not made in presence of any independent witness, as would appear from the evidence discussed above, on the ground that there has been non-compliance of section 50 of the Act. Section 50 of the Act provides that whenever search and seizure is made, if the accused so desires, he has to be searched in presence of a Gazetted Officer or a Magistrate. But admittedly the search in the present case was not made before a Gazetted Officer or a Magistrate. In this connection it was contended on behalf of the State that it was because the search was made in haste and under the special circumstance, the Police Officer did not get opportunity to contact a Magistrate and, therefore, search in such a case should not be treated as illegal or in violation of the provisions of Section 50 of the Act. There is not doubt about it that in several decisions the Apex Court has held that if it is a case of chance recovery, the question of compliance of Section 50 of the Act does not arise. But so far the present case is concerned, from the evidence of the informant (P.W.1), it appears that there was prior information at the P.S. that somebody had come with some contraband article and when the Police Officer was going to make verification of the information, he could have taken precaution of getting in contact with a Gazetted Officer or a Magistrate and even after the culprit was caught by the Police Officer, before taking his search, the Police Officer should have informed the accused that he had a right to claim his search in presence of a Magistrate or a Gazetted Officer and if in such a case the accused opted to be searched in presence of a Magistrate or a Gazetted Officer, the search taken in presence of witnesses by the Police Officer cannot be held to be illegal because it is treated as compliance of Section 50 of the Act. In the present case, it has not been stated by the informant (P.W.1) or any other witness that the informant either informed the accused that he wanted to take his search and he had option to be searched in presence of a Gazetted Officer or a Magistrate or made any attempt to call a Magistrate or a Gazetted Officer before the search was conducted. In certain decisions of the Apex Court it appears that some confusions cropped up regarding application of Section 50 of the Act and, ultimately, the matter was considered by a Special Bench of the Supreme Court in Cr.Appeal No. 396 of 1990 with several cases and appeals (State of Punjab vs. Baldeo Singh) reported in 1999(2) Patn. Cr. Case Report 61. Cr. Case Report 61. Their Lordship of the Supreme Court, after considering and discussing all the decisions in this regard, finally laid down the principles in detail, in paragraph 3 of the judgment, which runs as follows: "(1) That when an empowered Officer or a duly authorised Officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate, would cause prejudice to an accused. (3) That a search made, by an empowered Officer, on information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act." In the present case, it is obvious that the informant (P.W.1) who happened to be the Officer In-charge of the local Police Station had received prior information regarding presence of a person at the bus stand with some suspected contraband and the informant also claims to have made station diary entry to this effect and he proceeded to the bus stand with some other police personnel. Therefore, it cannot be said that the recovery in this case was a chance recovery or that the authorised Police Officer had no prior information. Therefore, as held by their Lordships in the case referred to above, the recovery in this case becomes illegal. 6. Therefore, it cannot be said that the recovery in this case was a chance recovery or that the authorised Police Officer had no prior information. Therefore, as held by their Lordships in the case referred to above, the recovery in this case becomes illegal. 6. In the above mentioned case(State of Punjab vs. Baldeo Singh) a point for consideration was also that it was pointed out that in some cases, it was observed that even though the recovery may be illegal, if the articles recovered are before the court as Exhibit, the articles could be used as evidence in the case. But this theory has also been negatived by their Lordships in clear terms. It appears that reference in this case was made to some cases, including case of Pooran Mal vs. Director of Inspection ( AIR 1974 SC 348 ) and the case was disposed of by their Lordships in paragraph 43 of the judgment and while laying down the conclusion, their Lordships held, "That an illicit article seized from the person of an accused during search conducted in violation of the safeguard provided in Section 50 of the Act, cannot be used as evidence of proof of unlawful possession of the contraband on the accused, though any other material recovered during that search may be relied upon by the prosecution, in other proceeding, against an accused, notwithstanding the recovery of that material during an illegal search." Their Lordships further observed, "A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act." In this view of the matter, their Lordships also further held, "That the judgment in Pooran Mals case cannot be understood to have laid down that an illicit article seized during the search of a person on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article of the person from whom the contraband has been seized during the illegal search." 7. From the discussions made above, it becomes clear that the search and seizure in the present case was illegal and the materials seized marked Exts. I, II and III, cannot be used as evidence in proof of guilt of the accused on the basis of presumption under Section 5A of the Act. 8. To add further, the manner of sending the sample to the expert, because of abnormal delay in taking the sample for sending it to the expert and absence of any witness and the accused at the time of taking sample, makes the entire story of taking of sample and sending the same to the expert doubtful. Therefore, the finding of the learned trial court that the prosecution succeeded in proving the charges against the accused appellant cannot be upheld. The trial in the present case has vitiated because of the illegality and irregularity committed by the Police Officers, including the informant and the I.O. (P.Ws. 1 and 2) and renders the whole trial vitiated and the finding of guilt recorded by the trial court on the basis of their evidence, cannot be upheld. 9. Accordingly, this appeal is allowed and the judgment and order of the trial court are set aside. The appellant is ordered to be released from custody forthwith, if not wanted in any other case. M.L.Visa, J. 10 I agree.