JUDGEMENT R.L. Khurana, J. The presented appeal has been preferred by the appellant Prem Singh, accused against the judgment dated 1 3.2002 of the learned Sessions Judge, Kullu, in Sessions Trial no. 84 of 2001 whereby the accused has been convicted for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and upon such conviction, he has been sentenced to rigorous imprisonment for ten years and a pay a fine of Rs. one lac. In default of payment of fine, he has been sentenced to undergo imprisonment for a further period of one year. 2. Briefly stated, the prosecution story is this. On 22.6.2001 at about 8.45 AM PW10 Head Constable Harbans Kumar along with Head Constable Chet Ram, HHC Shyam Singh mid PW9 Constable Vijay Kumar was present at the Forest Chief Post Larji in connection with routine patrolling and detection of crimes. He noticed the accused carrying a bag on his left shoulder coming from Sainj side. The accused was stopped and upon enquiry, he disclosed his identity and Ms being a resident of Nepal. The conduct of the accused raised a suspicion in the mind of PW10. he, therefore, in the present of PW7 Mohar Singh, vice President of Gram Panchayat Dueshar and DW1 Bhagat Ram, an employee at the Forest Check Post, Larji, expressed an intention to carryout the search of the accused Option was given to the accuse4d, if he would like to be searched before Gazetted Officer or a Magistrate. The accused opted or search by PW10 vide consent memo Ex.PW7/A During the course of search of the bag being carried by the accused. Charas in the form of sticks and tablets were recovered wrapped in polythene and kept in another bag. The Charas so recovered on weightment was found to be 2960 grams. Three samples weighing 25 grams each were separated and such three samples and the remaining bulk erf Charas were separately sealed with the seal mark H’ and taken into possession vide memo Ex.PW7/C. The accused, after being informed of the grounds, was arrested. 3. Rukka Ex.PW1Q/B was sent to the Police Station, on the basis of which formal FIR Ex.PW6/A came to be registered. PW1Q on return to the police station produced the case property before PW6 Inspector Sanjay Kumar. 3. Rukka Ex.PW1Q/B was sent to the Police Station, on the basis of which formal FIR Ex.PW6/A came to be registered. PW1Q on return to the police station produced the case property before PW6 Inspector Sanjay Kumar. In-charge Police Station, Banjar, who resealed all the packets with the seal mark "T" and deposited the same in the Malkhana. One of the seal sample was sent to the Chemical Laboratory on 23.6.2001 which on analysis vide report Ex.PW6/D was found to be "Charas". On completion of investigation, the accused was sent up for trial 4. The accused was charged for the offence under Section 20 of the Act, to which he pleaded not guilty and claimed trial. 5. The prosecution in support of its case m order to bring home the offence against the accused, examined ten witnesses in all. The case of the accused m his statement recorded under Section 313, Code of Criminal Procedure, is that of denial simpliciter One witness, namely, DW1 Bhagat Ram was examined in defence to show that nothing was recovered from the accused. 6. The teamed Sessions Judge, on consideration of the evidence led before him, convicted and sentenced the accused as aforesaid vide the impugned judgment dated 1.3.2002. 7. The teamed counsel for the accused, white assailing the conviction and sentence imposed upon the accused by the teamed Sessions Judge, has raised the following contentions: - (i) There has been non-compliance of Section 50 of the Act; (ii) There has been unfair investigation since the complainant himself has Investigated the case; (iii) Independent witnesses have not been joined during the search; (iv) Identity of the accused not established; and (v) The necessary link evidence to show that the sealed packet containing the sample was not tampered with is missing. 8. The teamed Additional Advocate general, on the other hand, has supported the conviction and sentence imposed upon the accused on the grounds and for the reasons recorded by the teamed Sessions Judge in the impugned judgment It was contended that alt the necessary requirements of law were duly complied with while carrying exit the search and that the offence stands proved against the accused beyond a reasonable doubt It was further contended that the requirement of Section 50 of the Act though not attracted in the present case, was also duly complied with. 9. 9. We have heard the leaned counsel for the parties and have also gone through the record of the case. 10. The first question arising for determination is whether the provisions of Section 50 of the Act are applicable to the facts of the present case when the incriminating article was recovered from a bag being carried by the accused. Section 50 of the Act provides: " (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 the nearest Magistrate. (2) if such requisition is made, tie office may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in subsection (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 excepting a female." 11. The scope of Section 50 of the Act came up for consideration before the Honble Court in Slate of Punjab v. Jasbir Singh and others [(1996) 1 Supreme Court Cases 288J. in the said case the accused therein were found carrying 34 kgs. Of puppy husk in 70 bags. The trial court acquitted at) the accused on the ground that the requirements of Section 50 of the Act were not compiled with. The High Court of Punjab and Haryana affirmed the acquittal. On further appeal by the State of Punjab, the Honble Apex Court white maintaining the acquittal as recorded by the learned triad court observed: "Having considered the evidence we find ft difficult to set aside the order of acquittal recorded by the Additional Sessions Judge. Though the offence involved is of a considerable magnitude of 70 bags containing 34 kgs of poppy husk, each without any permit/licence, this Court is constrained to confirm the acquittal for the reasons that the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Protection given by Section 50 is a valuable right to the offender and compliance thereof intended to be mandatory." 12. Again in Namdi Francis Nwazor v. Union of Indian and another [(1998) 8 8CC 534], the accused therein, a Nigerian National, was leaving India on 23.6.1987 by Air India Flight from Delhi to Lagos via Bombay. He had reported for customs clearance at the Indira Gandhi International Airport, New Delhi. A team of Narcotics Control Bureau present at the Airport suspected him and deckled to check his luggage. The accused was first asked if he was carrying any narcotics of other contraband articles and on his refusal, his luggage was searched. At the point of time when the actual search took place, he was carrying two handbags but nothing incriminating was found there from. He tad, however, booked one bag which had already been checked in and was loaded in the aircraft by which he was supposed to travel. This bag was called to the customs counter for examination. On examination 153 cartons of tetanus vaccine were recovered. On being opened, 152 cartons were found to contain amploules whereas the remaining one carton contained polythene packet containing brown-coloured powder packed with black adhesive tape. It was weighed and found to be about 180 gms. Since the powder was suspected to be heroin, it was seized. On analysis, it was found to be heroin. The accused was put to trial and he was convicted for the offences under Sections 21 and 23 read with Section 28 of the Act Before me Honble apex Court a contention was raised that mere had been a violation of the mandate of Section 50 of the Act It was held: "On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense mat the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub-section (4) of Section 50 which is terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean mat when the person of the accused is being searched, if the law requires mat if that person happens to be a female, the search shall be carried out only by a female. This would, in effect, mean mat when the person of the accused is being searched, if the law requires mat if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are laying a distant place at me time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended We must hasten to clarify that if that person is carrying a handbag or the like said the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when m article is elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for me simple reason that it was not found on the accused person. So, on the facts of mis case, it is difficult to hotel that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case." 13. Further a constitution Bench of the Honble Apex Court in State of Punjab v. Baldev Singh [(1999) 6 Supreme Court Cases 172] without expressing any opinion as to whether me provisions of Section 50 of me Act are mandatory or not, has held that bearing in mind the purpose for which me safeguard has been made, the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on me empowered officer to ensure mat me search of the person (suspect) concerned is conducted in me manner prescribed by Section 50 of the Act. It was further held mat on its plain reading, Section 50 of the Act would come into play only in the case of a search of a person as distinguished from the search of any premises etc. 14. It was further held mat on its plain reading, Section 50 of the Act would come into play only in the case of a search of a person as distinguished from the search of any premises etc. 14. In Kalema Tumba v. State of Maharashtra and another (1999) 8 Supreme Court Cases 257], the accused therein, a foreign national arrived at Bombay by a foreign airline. On information received, the intelligence officer of Narcotics Control Bureau accompanied by the Assistant Director and another Officer made me accused to open his baggage which was found to contain 2 kgs. Of brownish powder. The test revealed that the sane was heroin. The accused upon trial was convicted for me offences punishable under Section 21 read with Section 8(c), me Section 23 read with Section 28 and 8 15. Repelling the contentions, the Honble Apex Court held that the ratio laid down in the State of Punjab v. Jasbir Singh (supra) now stands over ruled by the decision of the Constitution Bench in State of Punjab v. Baldev Singh (supra). It was further held that if a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found therefrom, it cannot be said that it was found from his "person". Therefore, Section 50 of the Act would not be applicable to such a situation. A similar view was taken in Sarjudas and another v. State of Gujarat [(1999) 8 SCC 508} and In Kanhaiya Lal v. State of MR. [(2000) 10 SCC 38O.] 16. The view taken in NAMCM FRANCIS NWAZOR vs. Union of India (supra) on which reliance has been placed by the learned counsel for the accused, and which is similar to the one taken in State of Punjab vs. Jasbir Singh (supra) in view of what has been held by the Constitution Bench of the Honble Apex Court in State of Punjab vs. Baldev Singh (supra) and other subsequent decisions of the Honble Apex Court in Kalema Tumba v. State of Maharsfctra (supra), Sarjudas and another i State of Gujarat (supra) and in Kanhaiya Lal v State of M P. (supra) stands impliedly over-ruled, and as such cannot be pressed intro service by the accused. 17. 17. A Division Bench of this Court also in Shesh Ram v. State of H.P. (2001 (1) S.L.J. 764] of which one of us (R.L Khurana, J.) was a Member, has held that the provisions of Section 50 of the Act would not be attracted when the recovery of the incriminating article was effect from a haversack and not from the person of the accused. 18. In the present case as well since-the recovery of "Charas" was effected I from the bag being carried by the accused and not from the person of the accused, I Section 50 of the Act would not be attracted and its non-compliance, if any, will have no effect on the prosecution case. 19. Even if for the sake of arguments, ft is taken that the provisions of I Section 50 of the Act are applicable, there is evidence on me record about its due I compliance. The witnesses examined have stated about the accused having been informed of his right of being searched before a Magistrate or a Gazetted Officer. 20. The Apex Court in Joseph Females v. State of Goa [(2000) 1 SCC 2 707] where the accused was informed that "if you wish you may be searched m the I presence of a Gazetted officer or a Magistrate", has held that there has been [ substantial compliance with the requirement of Section 50 of the Act 21. The accused in the present case was also informed likewise vide I EX.PW7/A. Therefore, there has been substantial compliance with the requirement I of Section 50 of the Act. 22. To the similar effect it has been held by a Division Bench of this Court in Ramesh Kumar v. State of Himachal Pradesh (2002 Cr.L.J. 1880J. 23. The second contention raised on behalf of the accused that there has been unfair investigation since the complainant himself was the investigate? officer is simply to be rejected. 24. In State rep. 22. To the similar effect it has been held by a Division Bench of this Court in Ramesh Kumar v. State of Himachal Pradesh (2002 Cr.L.J. 1880J. 23. The second contention raised on behalf of the accused that there has been unfair investigation since the complainant himself was the investigate? officer is simply to be rejected. 24. In State rep. By Inspector of Police, Vigilance and Anti-corruption, Tiruchirapalli, Tamil Nadu v. Jayapaul [2004 Cr.L.J. 1819] dealing with a similar situation where the police officer, on whose information a case was registered by incorporating his name as an informant had investigated the case, the Honble Supreme Court has held: "We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an RR incorporating his name as the informant, he forfeits his right to investigate. If at a!!, such investigation could only be assailed on the ground of teas or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner m which ft has been done by the High Court that whenever a police officer proceeds to investigate after registering the RR on his own, the investigation would necessarily be unfair or biased." 25. In the present case, PW10 had intercepted the accused, carried out the search, recovered and seized the contraband, which facts made out the commission of a cognizable offence by the accused which required investigation. The formality of registering the case in which he records the factum of search and recovery aid the commission of an offence under the Act by the accused and then proceeding with the investigation of the case alter the registration of the case would not by my semblance of reasoning, vitiate either the investigation or the trial Nothing has come on the record to show either bias or real likelihood of bias on the part of PW 10, the Investigation Officer. 26. The two independent witnesses associated and Joined by PW 10 are PW 7 Mohar Singh and one Bhagat Ram, who has been examined by the accused as DW 1. 26. The two independent witnesses associated and Joined by PW 10 are PW 7 Mohar Singh and one Bhagat Ram, who has been examined by the accused as DW 1. PW 7 Mohar Singh, who is the Vice President of a Gram Panchayat has fully supported the case of the prosecution. Nothing has come on the record to show either that he is inimical towards the accused or that he is «n any manner interested in the case. 27. Though the accused m his statement recorded under Section 313, Code of Criminal Procure, in answer to question No. 16 has stated mat he had dispute with Mohar Singh where he worked and that he has been falsely implicated by Mohar Singh, nothing has been brought on the record to show that PW 7 Mohar Singh was having any dispute with Mohar Singh. There is nothing in evidence even to show where the accused was working and what connection PW 7 Mohar Sigh was having there with. So much so, no question was put to PW 7 Mohar Singh during him cross examination on this aspect of the case. 28. Independent witnesses were joined by the police during the course of search. The testimony of PW 7 is also corroborated by the evidence of police officials. 29. Even otherwise the mere fact that no independent witnesses were joined would not be sufficient to warrant the conclusion that the case of the prosecution does not stand proved or that the same is doubtful. 30. The Honble Supreme Court in Akmal Ahmad v. State of Delhi [1999 (2) Crimes 12 SC) has held that evidence of search and seizure by police will not be vitiated for the reasons that independent witnesses were not joined or that such independent witnesses have not supported the case of the prosecution. 31. A Division Bench of this Court in Raj Kumar v. State of Himachal Pradesh [(2001 (1) Sim. LC. 150J has also held to the same effect 32. 31. A Division Bench of this Court in Raj Kumar v. State of Himachal Pradesh [(2001 (1) Sim. LC. 150J has also held to the same effect 32. Much reliance was placed on the testimony of DW 1 Bhagat Ram on | behalf of the accused, ft was contended that though recovery and seizure is alleged to have been made and effected in the presence of DW 1, he was not supported the case of the prosecution, ft may be noticed that though DW 1 has denied the recovery in his presence, he has not denied the presence of PW 7 at the relevant time. He has also admitted his signatures on the various memos prepared by PW 10 at the spot. In fact he has denied his presence at the spot at the time of recovery. As per him, he was called to the barrier subsequently. Even if it be assumed that DW 1 was not present at the spot at the time of search and recovery, evidence coming on record fully establishes the presence of PW 7 at the spot. Therefore, no benefit can be derived by the accused from the statement of DW 1. 33. In so far s the identity of the accused is concerned, even DW 1 Bhagat Ram has not dented the presence of the accused at the spot when he is alleged to have been summoned at the barrier by the police. The accused was intercepted and apprehended at the spot Therefore, it cannot be said that the identity of the accused has not been established. 34. The samples upon seizure by PW 10 were sealed with the seal mark H and on having been produced before PW 6 were repacked and reseated with seal mark "T” Such sealed samples were deposited in the malkhana with PW 8, who on 23.6.2001 had sent one sealed packet containing the sample to the Chemical Laboratory for analysis. PW 3 Head Constable Chet Ram had carried such sealed sample from the Police Station to the Laboratory. AH the witnesses have categorically sated that the seals were intact and the sample was not tampered with. There the prosecution has been able to prove the necessary fink evidence to rate out the possibility of the samples having bee tampered with since after its seizure till it reached the Chemical Examiner 35. AH the witnesses have categorically sated that the seals were intact and the sample was not tampered with. There the prosecution has been able to prove the necessary fink evidence to rate out the possibility of the samples having bee tampered with since after its seizure till it reached the Chemical Examiner 35. For the foregoing reasons, the present appeal being devoid of merit is dismissed. The case property be dealt with as per orders/directions of the learned trial Court. -