Judgment Chandra Mohan Prasad, J. 1. Both these appeals are against the judgment and order dated 29th September, 2003 of the Additional Sessions Judge-IV, West Champaran, Bettiah in Tr. No.14 of 2002 (arising out of Bettiah Mofassil P.S. Case No. 10 of 2002) whereby each of the two appellants has been convicted under Section 20(B)(2)(G) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter in short referred to as the "Act") and sentenced to undergo rigorous imprisonment for ten years and a fine of Rupees one lac and, in default of payment of fine, to undergo rigorous imprisonment for two years. 2. The prosecution commenced with the written report of the informant Sunil Kumar Chaudhary (P.W.1) S.I. Officer-in-charge of Bettiah Mufassil Police Station who stated in his written report dated 15th January, 2002 that that day at 10:30 A.M. he got confidential information that three persons boarded on a black colour Rajdoot Motorcycle without any Number Plate were coming from Sariswan side on Sariswan Road with narcotic drugs and on getting this information, he constituted a raiding party comprising of P.Ws. 1,2,3, 4, 5 and 10 and proceeded on a Jeep towards Sariswan Road Baritola railway crossing and reaching there started searching the vehicles coming from the side of Bettiah on Sariswan Road. In course of that search, one Rajdoot Motorcycle borne by three persons was seen coming from Sariswan side and on seeing the Police Party the Motorcycle borne persons tried to flee away but they were chased and two of them were apprehended and one managed to flee away. The apprehended persons are the two appellants and it is stated in the written report that the appellants disclosed that the person who fled away was Abdul Kadir. He further stated in the written report that the appellants were searched in presence of independent witnesses P.Ws. 6 and 7 and as a result of search, 4 Kg. of Charas contained in eight packets and tied in the waist of appellant Ajim Ansari with a cloth was recovered. It is further alleged that 3 Kg. of Charas contained in 6 packets tied in the body of appellant Karmulla Ansari was recovered. A seizure-list was also prepared. The informant informed the Sub-Divisional Police Officer through wireless. Copy of the seizure-list was supplied to the appellants. On the oasis of the written report. F.I.R. was registered and investigation commenced. It is further alleged that 3 Kg. of Charas contained in 6 packets tied in the body of appellant Karmulla Ansari was recovered. A seizure-list was also prepared. The informant informed the Sub-Divisional Police Officer through wireless. Copy of the seizure-list was supplied to the appellants. On the oasis of the written report. F.I.R. was registered and investigation commenced. The samole of the seized heroin is also said to have seen sent to the Regional Forensic Science Laboratory, Muzaffarpur and the report of the chemical examination received indicated that the sample contents was Charas. The sei-lure-list has been proved as Ext. 4 and Ext. 1/1 and the report of the F.S.L. was marked as Ext. 5. On conclusion of the investigation, :harge-sheet was submitted and the appelants were put on trial and on conclusion of trial, the appellants were convicted and senenced as above. 3. As many as eleven witnesses were sxamined by the prosecution, P.W.1 Devendra andey, P.W. 2 Birbal Yadav, P.W. 3 Rajendra lilahto, P.W. 4 Girindra Pandey and P.W. 5 Suraj Pandey are the Home-guards. These ive witnesses have been named in the informants report as members of the raiding party but surprisingly none of them supported . the case of prosecution and all these witnesses have turned hostile. 4. P.W.1 says that he had gone with the informant and that checking was being done at Bakhritola Gumti but he had not found anybody boarded on the Motorcycle there. The witness does not say about the recovery of anything from the appellants. On his attention being drawn by the Additional P.P. towards his previous statement, this witness denied to have given any Police statement supporting the prosecution, P.Ws. 2, 3, 4 and 5 all have deposed on similar lines and they denied the case of the prosecution with re- gard to alleged recovery of Charas from the possession of the appellants. P.W. 5 has simply stated that in course of checking one man was caught with a black bag but he does not say about the recovery of anything from the possession of the appellants. P.W. 4 gave a different story by deposing that a person boarded on a Jeep coming from the side of Sariswan was apprehended with a bag but this witness does not say about the recovery of any article from the appellants. Thus P.Ws. P.W. 4 gave a different story by deposing that a person boarded on a Jeep coming from the side of Sariswan was apprehended with a bag but this witness does not say about the recovery of any article from the appellants. Thus P.Ws. 1 and 4 who are Home-guards and who were members of the raiding party do not support of the case of prosecution at all. 5. P.W. 6 Najir Mian and P.W. 7 Manoj Prasad have been cited by the informant in his written report as independent witnesses in whose presence the search and seizure was made but these two witnesses have also turned hostile. P.W. 6 identified his signature on the seizure-list but stated in his examination-in-chief that any recovery was not made in his presence. At Para-5 of his cross- examination he stated that he had put his signature on the papers at the Police Station. He also deposed at Para-1 of his cross-examination that his father-in-law Gafur Mian was a Chaukidar and after him, he became Chaukidar in place of his father-in-law. 6. During hearing, learned counsel for the appellants submitted that the informant says that this witness is an independent witness but, in fact, he works as Chaukidar and he is connected with Police, hence. Police had obtained his signature on the seizure-list subsequently, which this witness also admits in his evidence. 7. P.W.7 who is said to be another independent witness also turned hostile and he too, has admitted his signature on the seizure-list but deposed that any seizure was made in his presence. He further deposed that he is a private driver who was engaged as a driver for driving the Jeep in the Mufassil Police Station. On attention being drawn by the A.P.P. towards the previous Police statement this witness denied to have made any Police statement saying the factum of recovery from the possession of the appellants. In his cross-examination, he deposed that he was driving the Thana vehicle for last two years. He deposed that he had put his signature at the Police Station and at the time he had signed, the paper was blank. In his cross-examination, he deposed that he was driving the Thana vehicle for last two years. He deposed that he had put his signature at the Police Station and at the time he had signed, the paper was blank. Learned counsel for the appellants argued here that the prosecution claims that this witness had witnessed the search and recovery as an independent witness but this witness is connected with the Police because of his driving the Thana vehicle and that despite being attached with the Police, this witness did not support the case of the prosecution and deposed that any recovery was not made in his presence and that his signature was obtained at the Police Station on a blank paper. & P.W. 8. Jay Narayan Singh is the Police driver who was driving the Police vehicle. He deposed that he is the permanent Police driver who was posted at the Mufassil Police Station on 15th January, 2002 i.e. the date of occurrence and that Sunil Kumar Chaubey was the Officer In-charge of the Police Station. He further deposed that that day (15th January, 2002) he had not gone anywhere with the Officer In-charge and that in his presence any Ganja was not recovered from any person. Learned counsel for the appellants argued that as per the prosecution story, this witness had gone to the P.O. with the Police Party driving the Police Jeep and that the search and recovery was made in his presence but this witness denies to have gone with the informant that day or any recovery to have been made in his presence. This evidence of this witness goes adverse to the case of the prosecution affecting the prosecution case in a very adverse way. 9. P.W. 9 Sanjiv Kumar, S.I. is the i.O. of the case who deposed that he had recorded the statement of witnesses and then filed charge-sheet. At Para-18 of his evidence, he stated that he had not contacted the Sub-Divisional Police Officer nor he took the statement. Vide case of the prosecution the informant had informed the S.D.P.O. who had come at the P.O., thus, he was an important witness but the I.O. did not contact him nor took his statement. At Para-18 of his evidence, he stated that he had not contacted the Sub-Divisional Police Officer nor he took the statement. Vide case of the prosecution the informant had informed the S.D.P.O. who had come at the P.O., thus, he was an important witness but the I.O. did not contact him nor took his statement. At Para-5 of his cross-examination the I.O. deposed that he had received two packets of samples and out of those two packets, he sent one packet to the F.S.L for chemical examination and the another packet was kept in the Office of the court. Thus, out of two packets of sample taken from the seized articles, only one packet was sent for examination and other one was kept in the Office of the court. The report (Ext. 5) of the F.S.L. shows that one sample packet was examined and it was found to contain Charas. 10. P.W.10 Surendra Prasad Singh, Sub- Inspector was a member of the raiding party and he says that 8 packets of Charas wrapped on waist were recovered from the possession of the appellant Ajim Ansari. He also deposed that 6 packets of Charas wrapped in cloth were recovered from the possession of appellant Karmullah Ansari. At Para-2 of his evidence, he deposed that the Officer In-charge (informant) had informed the Sub-Divisional Police Officer on Wireless and in presence of two independent witnesses the appellants were searched. Thus according to this witness, the Sub-divisional Police Officer was informed on Wireless and the search and recovery was made in presence of two independent witnesses. Admittedly the two independent witnesses are P.Ws. 6 and 7 but they have turned hostile and they have not supported the factum of recovery. According to this witness (P.W.10) the Sub-Divisional Police Officer was simply informed on Wireless but there is nothing in his evidence to show that the Sub-Divisional Police Officer had arrived at the time of search and seizure or the search and seizure was made in his presence, rather the tenor of evidence shows that the Sub-Divisional Police Officer was informed on Wireless and in the meantime search and seizure was made in presence of these two witness. 11. P.W.11 Sunil Kumar Chaudhary is the informant himself. 11. P.W.11 Sunil Kumar Chaudhary is the informant himself. He says in his evidence that comprising the Police Party, he had come to the P.O. and had made the search and seizure from the possession of the appellants. He also says that the search and seizure was made in presence of P.Ws. 6 and 7. In his evidence at Para-2 he deposed that after apprehension of the appellants, he had informed the Sub-Divisional Police Officer on Wireless and that the Sub-Divisional Police Officer had arrived there immediately. He further says that the search was made in presence of two independent witnesses, namely, P.Ws. 6 and 7 but he does not say in categorical terms that the search and seizure was made in presence of Sub-Divisional Police Officer or the Sub-Divisional Police Officer had witnessed the search and seizure. According to the evidence of P.Ws.10 at Para-2 as discussed above, it would appear that after apprehension of the appellants, the Sub-Divisional Police Officer was informed on Wireless and thereafter the search and seizure was made in presence of two independent witnesses, namely, P.Ws. 6 and 7. Thus, the evidence of P.W. 2 negatives the presence of the Sub-Divisional Police Officer at the time of search and seizure. Besides this the Sub-Divisional Police Officer was a very important witness in this case but the prosecution has not examined him and any explanation has also not been given for his non-examination. There has been laches on the part of the I.O. also who also did not care to contact the Sub-Divisional Police Officer and record his statement. 12. During hearing, learned counsel for the appellants submitted that there is no cogent evidence to show that the Sub-Divisional Officer has witnessed the search and seizure. He also argued that the evidence of P.W.10 rather goes to indicate that the Sub-Divisional Police Officer who happens to be a Gazetted Officer was simply informed on wireless and the search and seizure was conducted in presence of two witnesses, namely, P.Ws. 6 and 7 without waiting for arrival of the Sub-Divisional Police Officer and that the search witnesses have also turned hostile and they have deposed before the trial court that any search was not conducted in their presence and that their signature was obtained on the seizure-list at the P.S. 13. 6 and 7 without waiting for arrival of the Sub-Divisional Police Officer and that the search witnesses have also turned hostile and they have deposed before the trial court that any search was not conducted in their presence and that their signature was obtained on the seizure-list at the P.S. 13. The learned A.P.P. pointed out that the seizure-list contains the signature of the Sub-Divisional Police Officer Sunil Kumar Thakur. No doubt the seizure-list contains the signature of the Sub-Divisional Police Officer but the factum of recovery in presence of this Sub-Divisional Police Officer has to be proved by independent facts and the simple signature will not go as conclusive proof to establish that the search and seizure was made in his presence. The Sub-Divisional Police Officer could have been the best witness to say about the search and seizure made in his presence but the prosecution did not examine him. So far other evidence, as discussed above are concerned, they do not go to prove that the search and seizure was made in his presence. Thus a reasonable doubt is entertained in the matter whether the search and seizure was made in presence of the Sub-Divisional Police Officer or not. 14. Besides this one another flaw also appears in the case of the prosecution. According to the case of the prosecution, recovery of Charas was made separately from the possession of the two appellants and the I.O. has also said that the two packets of sample were handed over to him but out of those two packets he sent only one packet for examination and the other one was kept in the Office of the Court, it is not known when two samples were obtained about the two recoveries made from the possession of the appellants why only one was sent. The report of the F.S.L. (Ext. 5) shows Charas recovered from the possession of the appellant Ajim Ansari and Karmulla Ansari was examined and it was found to contain Charas. Thus, the sole sample which was examined by the F.S.L. is said to have contained the Charas recovered from both the appellants. It is strange how a single sample could have been prepared for two recoveries made from two persons. Thus the very act of taking of the sample and the sending it for chemical examination also comes under a grave doubt. 15. It is strange how a single sample could have been prepared for two recoveries made from two persons. Thus the very act of taking of the sample and the sending it for chemical examination also comes under a grave doubt. 15. Learned counsel for the appellants argued that the prosecution has not adduced any evidence to show as to how the seized Charas was dealt with and that it has also not been produced before the trial court. Learned counsel for the appellants placed a point of law that the provisions of Sec. 50 of the N.D.P.S. Act has not been complied in this case, hence, the very recovery of the same became suspicious and it cannot be made basis for conviction of appellants. Sec. 54 of the N.D.P.S. Act raises a presumption under the Act that the possession of any narcotic and psychotropic substance, when the possession has not been satisfactorily accounted for, raises a presumption of commission of offence. Due to such presumption strict provisions have been incorporated under Sec. 50 of the Act for proving posses- sion of such drugs so that innocent persons may not get implicated. 16. Sec. 50 of the Act provides that when the person to be searched requires the search to be made in presence of a Gazetted Officer of any Department or a Magistrate the search must be made in presence of such Gazetted Officer or the Magistrate. Section 50 of the Act also imposes obligation on the Officer conducting the search and seizure to intimate the person to be searched about his legal right that he has a right to be searched in presence of a Gazetted Officer or a Magistrate. Learned counsel for the appellants pointed out that there is nothing to show that the informant who was the Officer responsible for conducting the search and seizure ever intimated the appellants that they had right to be searched in presence of Gazetted Officer or a Magistrate. The prosecution evidence does not indicate anywhere that the appellants were informed of their such legal rights. 17. The prosecution evidence does not indicate anywhere that the appellants were informed of their such legal rights. 17. Learned counsel for the appellants cited the decision of the State of Punjab vs. Baldev Singh and Others, ( AIR 1999 SC 2378 ) wherein the Apex Court held 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 Sec. 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, the 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. A search may by an empowered Officer, on prior 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 and 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, when the conviction has been recorded only on the basis of possession of the illicit article, recovered from his person during a search conducted in violation of the provisions of Sec. 50 of the Act. 18. In this case there has been violation of provisions of Sec. 50 of the Act inasmuch as the appellants were not informed of their legal rights to be searched in presence of Gazetted Officer or a Magistrate so that they could have exercised their such legal rights. The conviction of the appellants stands solely on the basis of recovery said to have been made from their possession. Thus, due to non-compliance of the provisions of Sec. 50 of the Act the recovery of the illicit article becomes highly suspicious and it also goes to vitiate the conviction order passed on the appellants. 19. The conviction of the appellants stands solely on the basis of recovery said to have been made from their possession. Thus, due to non-compliance of the provisions of Sec. 50 of the Act the recovery of the illicit article becomes highly suspicious and it also goes to vitiate the conviction order passed on the appellants. 19. Thus hearing and considering that the very evidence brought by the prosecution itself is insufficient to prove the recovery and above that the very provisions of Sec. 50 of the Act were also not complied, the recovery of Charas as alleged by the prosecution becomes highly suspicious and there is no reason to support the conviction and sentence passed on the appellants. In such view of matters, the conviction and sentence passed against the appellants cannot be upheld under law, hence the same is set aside. 20. The appeal is accordingly allowed. The appellants are in jail. They are ordered to be released from custody forthwith, if not wanted to be detained in any other case.