Judgment B.N.P.Singh, J. 1. For allegedly possessing 24 Kgs. of ganja a narcotic substance without licence, appellant was convicted by the Special Court constituted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short NDPS Act) having been found guilty for the offence punishable under Sec. 20(b)(ii)(c) of the Act and was sentenced to undergo rigorous imprisonment for a term of ten years and also to pay a fine of Rs. one lakh and in default to pay fine, to further undergo rigorous imprisonment for a term of two years. 2. Factual matrix during patrolling, R.P.F. personnels, Buxar, noticed on 17th April, 2001, a person sitting on eastern flank of railway station at Tudiganj with suspected posture, with a cartoon. The police officials became sus-picious and they examined the person, the appellant, who disclosed his identity as Kamendra Sah alias Ramashish Ram, and when the cartoon was checked, they found 4 packets containing 28 Kgs. of illicit ganja for which the appellant failed to make satisfactory explanation for its unauthorised possession. The illicit article was eventually seized for which a seizure memo was prepared. As Pushkar Nath Singh Sanjay, Sub-Inspector, Railway Protection Force did not qualify for carrying out investigation of the cases registered under the Act, Excise Officials were informed to whom custody of the appellant and also the illicit article was made over by him. As usual investigation followed when statements of witnesses were recorded by the Investigating Officer, who was Custom Official duly authorised under the Act for such investigation and sent the illicit article for chemical examination. Recitals made in Exhibit 6, which is a report of Chemical examiner would unmistakably suggest the sample sent by the Investigating Officer to be ganja, a narcotic substance, considering properties constituting the sample. He had compared the seals and found the same to be similar. 3. Appellant had pleaded not guilty to the charges pursuant to which trial commenced, in course of which, State examined five witnesses including Reporting Officer, witnesses of panch-nama and also Investigating Officer and Officer of the Excise Department. Defence of the appellant both before the Court below and this Court had been that of innocence and he ascribed his false implication for no good reasons. 4. Defence of the appellant both before the Court below and this Court had been that of innocence and he ascribed his false implication for no good reasons. 4. Since manifold contentions were raised on behalf of the appellants to dig a hole in the castle of the prosecution, lest these contentions are not lost sight of, I consider it appropriate to discuss with brevity the resume of narratives made by of the witnesses. Reiterating his earlier version, Pushkar Nath Singh Sanjay, Sub-Inspector attached to R.P.F., Buxar (PW 1) stated about apprehension of the appellant with illicit 28 Kgs. of ganja on the eastern flank of Tudiganj Railway Station during routine patrolling, in company of other police officials. The officers of the Excise Department, who were authorised persons to investigate the case, were duly informed, to whom custody of both the appellant and the illicit article was made over by the witness. Almost similar narrations with sustained consistencies were made also by Subodh Kumar Ojha (PW 2), Ram Awatar Yadav (PW 3) and Himachal Rai (PW 4), who stated to have accompanied Pushkar Nath Singh Sanjay during alleged search and seizure of offending article from possession of the appellant. There has been evidence of also Chandradeo Kumar (PW 5), Sub-Inspector in the Department of Excise, about investigating case during which statement of witnesses were recorded by him and the sample was sent to chemical examiner for examination of its proper-ties. Rest Quantity of the illicit article was retained in sealed cover which was also produced at trial, though some part of the cartoon was noticed damaged, possibly by rats. This is all the evidence. 5. Placingreliance on various decisions of the Court including that of the Apex Court in case of State of Punjab V/s. Balbir Singh, contentions are raised that though it was imperative on part of the officer making search and seizure to apprise the appellant of his valuable right for his search in presence of a Gazetted Officer or a Magistrate, as mandated by Sec. 50 of the Act, failure of the Police Officer to observe the mandatory requirement of law has introduced serious infirmity in the prosecution version which has also vitiated trial and also conviction of the appellant rendered by the trial Court. To appreciate contentions, it would, however, be quite useful to refer to Sec. 50 of the Act: 50. To appreciate contentions, it would, however, be quite useful to refer to Sec. 50 of the Act: 50. (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 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 Sec. 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-sec. (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. (4) No female shall be searched by anyone except a female. 6. Question of application of Sec. 50(1) of the Act to different situations, has drawn attention of the Courts from time to time. Considering somewhat divergence of opinion of different Benches of the Supreme Court on the issue, a Constitution Bench of the Supreme Court, in case of State of Punjab V/s. Baldev Singh, took into consideration the ratio of decision of a number of cases and noticed that though two-Judge Bench of the Court held in case of State of Himachal Pradesh V/s. Shri Prithichand and another and subsequently affirmed in the case of State of Punjab V/s. Labh Singh that breach of Sec. 50 of the Act did not affect the trial, in case of Alimustafa Abdul Rahman Moosa V/s. State of Kerala. Court categorically laid down that breach of Sec. 50 makes the conviction illegal. However, analysing the ratio of decisions of this case, which came to the notice of Constitution Bench, the proposition laid down by the Court was that in essence, in fact, there was no unanimity of judicial pronouncements altogether, that failure to scrupulously observe the mandate of Sec. 50 of the Act would render search and seizure illegal because the suspect would not be able to avail all the opportunity which are inbuilt in Sec. 50 of the Act. However, some of the observations made by Court about applicability of Sec. 50 of the Act in different situation would solve the problem: On a plain reading, Sec. 50 would come into play only in a case of search by a person, as distinguished from search in premises etc. How-ever, if the empowered officer without any prior information as contemplated by Sec. 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of such search the contraband article under the Act is also recovered, the requirements of Sec. 50 of the Act are not attracted. 7. Observation made by other Bench of the Apex Court in case of State of Punjab V/s. Balbir Singh, can also be noticed which strikes similar note of caution about application of Sec. 50 of the Act: If a Police Officer without any prior information as contemplated under the provisions of the NDPS Act, makes a search or arrest of a person in normal course of investigation into an offence, or suspected offence as provided under the provisions of Cr PC and when such search is completed, at that stage Sec. 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 chance recovery of any narcotic drug or psychotropic substance, then the Police Officer, who is not empowered, should inform the empowered officer who should there-after 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 investigation in accordance with other provisions of NDPS Act. 8. 8. There is no gainsaying that the alleged search and seizure were effected by the Empowered/Authorised Officer at the railway station, which is a public place and that apart, the alleged seizure was not effected from person of the appellant and, if that be so, in that event too it would never be imperative on part of the officer to apprise the appellant of his right and to exercise his option for his search to be made by a Gazetted Officer or Magistrate and reliance on this score can be placed on decision of the Apex Court in Kanhaiyalal V/s. State of Madhya Pradesh, wherein observations were made by the Apex Court that where the contraband was recovered not from person of the accused but from a bag which he was carrying, non-compliance with requirement of Sec. 50 of the Act would not be vitiative of his conviction and reliance on this score can also be placed on decision of the Apex Court in Namdi Francis Nwazor V/s. Union of India and another. Reliance was also placed on decision of this Court in Md. Sarfraj V/s. State of Bihar of which I was a party. The observation made therein would not come for rescue of the appellant as in that case it was held on strength of evidence available on the record that in fact search of illicit article was effected from possession of the appellant on prior information by the empowered officer. Without multiplying the decisions, a lot of which was relied by the learned counsel for the appellant, the logical conclusion in my considered opinion was that in a given situation, there was no violation of provision of Sec. 50(1) of the Act, to render the finding of the trial Court illegal and also to vitiate the trial about alleged search and seizure. 9. Yet other submission is that there was no good evidence that the sample was sealed and kept in proper custody in the police station so as to reduce the chance of manipulation. Admittedly, no other witness than the Investigating Officer can be the competent person to have a say about such criticism, and if he is to be believed, remaining part of the illicit article sent after the sample was sealed and kept in malkhana and the sealed cartoon too was placed before the trial Judge during his evidence. 10. Admittedly, no other witness than the Investigating Officer can be the competent person to have a say about such criticism, and if he is to be believed, remaining part of the illicit article sent after the sample was sealed and kept in malkhana and the sealed cartoon too was placed before the trial Judge during his evidence. 10. Learned counsel for the appellants relying on various decisions of the Court would submit that nonobservance of provisions of Secs. 52 to 57 of the Act had rendered the trial ipso facto illegal making the alleged seizure suspect, and reliance on this score was placed on a decision of the Apex Court in Bahadur Singh V/s. State of Madhya Pradesh. However, the facts of the case cited at Bar were quite distinct from the case under consideration, as in the former case, mere recovery and seizure was itself disputed, and that apart, the alleged seizure was denied by none else but the Investigating Officer at trial, and in that backdrop it was considered not safe to rely on the prosecution version to sustain conviction of the appellant. 11. Though reliance was also placed on a decision of Gurbux Singh V/s. State of Haryana, but in that case ratio of decision was that provisions of Secs. 52 and 57 were only directory and violation thereof would not ipso facto violate the trial or conviction. But since there has been evidence that seal was kept with the Investigating Officer for ten days, suspecting the bona fide, the finding of the trial Court convicting the appellant was upset by the Apex Court. Though the Investigating Officer has not stated in so many words, the recitals made in the Chemical Examiners report (Exhibit 6) would unmistakably show that both the seals were compared by the chemical examiner which was found to be proper and in this backdrop no much criticism on this count can be made about there being lapse on part of the Investigating Officer or there being any flaw in the investigation. About observance of the provisions of Sections 52 and 57 of the Act, the observation made by the Apex Court in the case of Balbir Singh (supra) can also be noticed: The provisions of Sec. 52 and 57 which deal with the steps to be taken by the Officers after making arrest or seizure under Secs. About observance of the provisions of Sections 52 and 57 of the Act, the observation made by the Apex Court in the case of Balbir Singh (supra) can also be noticed: The provisions of Sec. 52 and 57 which deal with the steps to be taken by the Officers after making arrest or seizure under Secs. 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 merit of the case. 12. True it is that these are the safeguards to reduce chance of mani-pulations during investigation, which should not be overlooked by the Investigating Officer; provisions of these sections, as has been noticed, contain certain procedural instructions for strict compliance by the officer but even if there is no strict compliance of these instructions, that by itself cannot render the act done by the officer null and void and utmost it may affect the probative value of the evidence regarding arrest or search. Any delay on part of the Investigating Officer in sending the sample for chemical examination was, however, not disputed by the defence and in that view of the matter, I find that no such infirmity has crept in the investigation which would render the factum of search and seizure illegal or suspect. 13. Though there has been discrepancy in the statement of the witnesses about number of packets found in possession of the appellant which allegedly contained illicit article, that in my opinion was not of much significance in view of there being good evidence about seizure of 28 Kgs. of illicit article from possession of the appellant contained in the packets. The impression which I gathered from evidence of the witnesses is that though seizure was effected at Tudiganj Railway Station, its weighment was made only at Buxar, after the police personnel effecting seizure, brought appellant and the illicit article from Tudiganj Railway Station. Alleged discrepant evidence of the witnesses about source from which the paper was procured for preparation of seizure memo was hardly of any value. Alleged discrepant evidence of the witnesses about source from which the paper was procured for preparation of seizure memo was hardly of any value. Though reliance was also placed on a decision in Avatar Singh and others V/s. State of Punjab, ratio of decision was of no application to the case under consideration, as in that case out of three occupants of truck, two had escaped whose identity could not be established by the prosecution and as such the appellant alone was not considered answerable for possession of the illicit article. Reliance placed on a decision in State of Haryana V/s. Vikram Singh, was also misconceived, as in that case, witness getting hostile, no reliance was placed on him to uphold conviction of the appellant. Since facts of the case did not lay within four corners of Sec. 42 of the Act and provisions of Sec. 43 of the Act are applicable, failure of the empowered officer while effecting search or arrest in accordance with Sec. 100 and 165, Cr. PC. to record reasons and to send a copy thereof to the Senior Officer will not amount to vitiating trial. 14. On careful consideration of the evidences available, facts and circum-stances of the case and also various judicial pronouncements of the Court, I am of the view that the finding recorded by the Court below was well merited which did not require interference and as such, appeal being meritless, is dismissed.