JUDGMENT Hon’ble Shiv Shanker, J.—This criminal appeal has been preferred against the judgement and order dated 10.1.1995 passed by 1st Additional Sessions Judge, Saharanpur in Special case No. 45/93 convicting and sentencing the appellant under Section 15 of N.D.P.S. Act awarding sentence for 10 years R.I. with fine of Rs. 1,00,000/- and in default of fine, further R.I. for two years. 2. Brief facts arising out of this appeal is that on 8.5.92, S.I. Jagat Kumar Singh P.W.1 accompanied with constable Asgar Ali P.W. 2 and constable Sheoraj Singh had proceeded from the concerned police station on patrolling duty for tracing out the wanted miscreants towards Sekhpura Kadim and reached at the crossing of Bani, where one person taking a plastic bag upon his shoulder, was seen. After seeing the police personnel he had turned and had tried to run away, upon which he was challenged but he did not stop. Thereafter he was arrested at 8 P.M. at the distance of 40 steps from the crossing and disclosed his name Rifaqat alias Fakka. It was suspected that he was having doda powder. Therefore, he was asked to get him searched from the gazetted officer, upon which he replied that he was satisfied and he could be searched by them. Thereafter, he was searched and found with 10 Kg. Doda powder (Ex. Ka-2) in a plastic bag without having licence. Recovered contraband article was taken from the possession of appellant and sample of 200 Grams doda powder in a bag of polythin was also sealed in separate clothes. No any public witness was available due to sudden arrest in jungle. Recovery memo (Ex. Ka-1) was prepared in torch light and signature was obtained from the accused also and its copy of Fard was given to the accused along with recovered contraband article and sample were taken to the concerned police station, where accused was kept in Hawalat and chick F.I.R (Ex. Ka-2) was prepared on the basis of recovery memo (Ex.Ka-1) and case under Section 18/42 N.D.P.S. Act was registered against the above accused. Investigation of this case was entrusted to S.I. R.P. Sharma. Such sample was sent to chemical examiner, from where chemical examination report was received by the Investigating Officer and charge sheet against above accused was submitted in the Court. 3. Investigation of this case was entrusted to S.I. R.P. Sharma. Such sample was sent to chemical examiner, from where chemical examination report was received by the Investigating Officer and charge sheet against above accused was submitted in the Court. 3. The charge was framed against accused Rifaqat alias Fakkar for the offence under Section 15 of N.D.P.S. Act by the concerned Court who pleaded not guilty and claimed to be tried. He has stated in his statement under Section 313, Cr.P.C. He was taken by the police from his house and he was implicated in this case falsely due to enmity with the police. 4. Prosecution has examined P.W.-1 S.I. Jagat Kumar Singh, P.W.-2 constable Asgar Ali and P.W. 3 S.I. Ram Prasad. No any person has been examined on behalf of accused in his defence. However, he has filed copy of judgement in special case No. 59/93 and 60/93, under Section 18/42 N.D.P.S. Act, P.S. Kotwali Dehat, decided on 3.12.93 by acquitting the present accused along with another accused Mobin alias Chatru. 5. After considering the whole evidence on record, the above accused was convicted for the charge levelled against him and he was sentenced as above. Feeling aggrieved by it, the above accused has filed the present criminal appeal in this Court. 6. Heard learned Counsel for the appellant and learned A.G.A. and perused the whole record. 7. Learned Counsel for the appellant has contended that there is no compliance of Section 50 of N.D.P.S. Act. The word magistrate has not been mentioned in the recovery memo. The firstly accused was searched personally. In such circumstances, Section 50 of N.D.P.S. Act was attracted but it has not been complied fully at the time of taking search of the appellant. It is further contended that P.W.-1 and P.W. 2 who were police men, had proceeded from the police station in patrolling duty etc. However, Rawanagi G.D. of these witnesses has not been proved by the prosecution. In such circumstances, presence of both these witnesses at the time of alleged incident became suspicious and alleged search taken by these witnesses is also liable to be suspicious. It is further contended that sample of 200 Grams doda powder was taken from the recovered contraband article. The same has been mentioned in the recovery memo (Ex. In such circumstances, presence of both these witnesses at the time of alleged incident became suspicious and alleged search taken by these witnesses is also liable to be suspicious. It is further contended that sample of 200 Grams doda powder was taken from the recovered contraband article. The same has been mentioned in the recovery memo (Ex. Ka-1) but chemical examination report goes to show that sample of 405 Grams doda powder was received. There is no evidence as to how the weight of sample was increased. It is further contended that such sample has also not been produced in evidence. Therefore, this also shows recovery of doda powder is not believable. It is further contended that there is no evidence regarding sending of sample to the chemical examiner. This incident had taken place on 8.5.92. Its’ sample was sent to chemical examiner on 27.6.92 and it was reached on 1.7.92, and chemical examination report was prepared on 17.5.93 in absence of any linked evidence and preservation of sample etc. is not liable to be believed. It is further contended that the recovered contraband article was not weighed by the Investigating Officer at the place of incident. There is no compliance of Sections 55 and 57 of N.D.P.S. Act. It is further contended that P.W.-1 has stated that 20 Kg. Doda powder was recovered. Later on he stated that 10 Kg. Doda powder was recovered from the possession of accused. Therefore, it is not certain whether doda powder was found either 10 Kg. or 20 Kg. and sample was taken either 200 Grams or 405 Grams. In such circumstances, search and recovery made against the appellant is not liable to be believed and their testimony was not reasonable and trustworthy. However, the appellant has been convicted on the basis of evidence of P.W. 1 and P.W. 2. On the other hand, he is entitled for acquittal. 8. Learned A.G.A. has submitted that Section 50 of N.D.P.S. Act is not attracted as it was a chance recovery of the contraband article. It is further contended that Section 50 is also not attracted as the recovery was made from the bag of appellant and not from his person, although linked evidence has not been produced by the prosecution. However, it is not mandatory but directory and on that basis, the appellant could not be acquitted. 9. It is further contended that Section 50 is also not attracted as the recovery was made from the bag of appellant and not from his person, although linked evidence has not been produced by the prosecution. However, it is not mandatory but directory and on that basis, the appellant could not be acquitted. 9. It has been observed in decision of Apex Court in case of State of Punjab v. Baldev Singh, 1999(39) ACC 349 (SC) that “Section 50 comes into play only in case of search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. 10. It has been observed in the decision of Apex Court in case of State of Haryana v. Suresh, 2007(3) Crimes 52 (SC) that "it is well settled that the word “person” does not include bag, brief case etc". 11. It has also been observed in decision of Apex Court in case of Babu Bhai Odhavji Patel v. State of Gujarat, 2006(54) ACC 253 that “Recovered contraband article not recovered from person of the appellant but from tanker lorry—Recovery not tainted with any procedural irregularity.” 12. It has also been observed in decision of Apex Court in case of State of Orissa v. Kanduri Sahoo, (2004 ) 1 SCC 337 that “delay of four days in sending the sample to the State Drug Testing Research Laboratory—Effect—Not fatal where the evidence indicating that the seized articles were kept in proper and safe custody. Learned A.G.A. has invited attention regarding above decisions of Apex Court. 13. On the other hand, learned Counsel for appellant has invited attention towards the following decisions of this Court : (1) in case of Naresh Pandey v. State of U.P., 2003(46) ACC 617 wherein Exact weight of, not disclosed—Full report regarding arrest and seizure not made to immediate official superior—Violation of mandate of Section 57 of the Act. 13. On the other hand, learned Counsel for appellant has invited attention towards the following decisions of this Court : (1) in case of Naresh Pandey v. State of U.P., 2003(46) ACC 617 wherein Exact weight of, not disclosed—Full report regarding arrest and seizure not made to immediate official superior—Violation of mandate of Section 57 of the Act. (2) in case of Chandan Singh and another v. State of U.P., reported in 2003(46)ACC 797 wherein it has been observed that in absence of linked evidence, recovery of contraband from the possession of accused was found doubtful and suspicious and conviction of accused was set aside. (3) in case of Ravi alias Nitu v. State of U.P., 2005(2) JlC 738 (All), wherein it has been held that “No material on record to establish, as to when and in what circumstances, the sample sent for expert opinion was prepared and sent to chemical examiner—Material contradictions in the evidence of P.W.1 and P.W.2—No evidence about the preservation of alleged contraband—Trial Court cursorily seen the evidence and recorded the conviction—Appeal allowed—Conviction and sentence set aside.” (4) In case of Liyakat Goojar v. State of U.P., 2005(2) JIC 663 (All) (LB), wherein it has been held that “Appellant informed the Arresting Officer that he was having the heroin in his possession and pleaded mercy—Prior information was with the Arresting Officer about the possession of heroin—Obligations for the Arresting Officer to search before Gazetted Officer or Magistrate—No public witness was associated—Appeal allowed—Conviction and sentence set aside. (5) in case of Irshad Ahmed alias Shekhu v. State of U.P., 2005(3) JIC 340 (All), wherein it has been held that “Full report of arrest and seizure under Section 57 of the Act requires to be given by the arresting officer in writing—No such report brought on record—Appeal allowed and accused acquitted.” (6) in case of Jamil v. State of U.P., 2006(1) JIC 100 (All), wherein it has been held that Arrest and seizure—Seizure officer not made any report to immediate official superior within 48 hours regarding arrest and seizure—Sample of contraband sent for analysis after about one and half month of seizure—Incomplete compliance of mandatory requirements of Section 50—Renders whole recovery vitiated and illegal—Conviction recorded by Trial Court not sustainable—Conviction and sentence set aside—Appeal allowed. 14. 14. According to the evidence of P.W.1 and P.W. 2 and recovery memo, contraband doda powder was found in the bag and it was not recovered at the search from his person but it was recovered from his bag. Therefore, such recovery was chance recovery and not on prior information according to Section 42 of N.D.P.S. Act. In such circumstances, Section 50 of N.D.P.S. Act is not attracted as held by the Apex Court in the above decisions. 15. Prosecution has not adduced linked evidence regarding sending of sample to the public analyst. It is also not mandatory but directory. The arresting officer P.W.1 and P.W. 2 had not sent information regarding arrest and seizure to their higher authority. There is no compliance of Section 57 of N.D.P.S. Act but it is also not mandatory but directory as held by the Apex Court in the above decisions. There is contradiction regarding weight of contraband. P.W.1 has stated that 20 Kg. Doda powder was recovered from the possession of appellant at the time of his search. Later he stated that 10 Kg. Doda powder was recovered. P.W. 2 stated that sample was taken at the spot from the recovered contraband of 200 Grams. P.W.1 has stated that 10 Kg. Doda powder was recovered from his bag at the time of his search and 405 Grams doda powder was taken from recovered contraband as sample. Chemical examination report vide Ex. Ka-5 reveals that sample was received weighing 405 Grams. Therefore, there is material contradiction regarding recovery of alleged doda powder either it was recovered 20 Kg. or 10 Kg. There is also material contradiction that sample was taken of 200 Grams according to the statement of P.W.2 Asgar Ali and recovery memo vide Ex. Ka-1 but P.W. 1 has stated that sample was taken of 405 Grams from the recovered contraband . P.W.1 is the main witness of this case who prepared recovery memo vide Ex.Ka-1 and on that basis chick F.I.R. was prepared and the case was registered against the appellant. Therefore, his statement is contradictory regarding weight of the sample from his recovery memo. When the sample weighing 200 Grams was taken at the spot by P.W. 1 and P.W. 2 and the same was sealed. Later on it was sent to the public analyst, where its weight was found 405 Grams. Therefore, his statement is contradictory regarding weight of the sample from his recovery memo. When the sample weighing 200 Grams was taken at the spot by P.W. 1 and P.W. 2 and the same was sealed. Later on it was sent to the public analyst, where its weight was found 405 Grams. No sufficient explanation has been given on behalf of the State as to how the weight of the sample was increased from 200 Grams to 405 Grams. 16. It is also worthwhile to mention here that such sample has not been produced in evidence on behalf of prosecution. Therefore, it creates doubt whether such sample taken at the spot, was sent to the public analyst or not. In such circumstances, search and seizure is liable to be suspicious. However, it has been believed by the trial Court illegally and against the provision of law. It is also worthwhile to mention here that P.W.1 and P.W. 2 have stated in their testimony that they had proceeded on patrolling duty from their concerned police station and reached at the place of incident. He was apprehended by the police from his house as per suggestion. In such circumstances, it was essential that Rawanagi G.D. of P.W. 1 and P.W. 2 should have been proved on behalf of prosecution, so that it could be proved that they had proceeded from concerned police station and reached at the relevant place of incident. In absence of producing Rawanagi G.D. of these witnesses, the presence of both the witnesses is liable to be suspicious at the place of incident. Therefore, search and seizure has become ultimately suspicious. However, the trial Court has believed on search and seizure which is against the provisions of law. 17. For the aforesaid reasons, this appeal succeeds and is hereby allowed. Conviction and sentences passed against the accused-appellant are hereby set aside and he is acquitted. The appellant is already on bail. His bail bonds are hereby cancelled and sureties discharged. Amount of fine, if deposited by the appellant shall be refunded to him. Material Ex.-2, doda posta be destroyed as directed by the trial Court. Record of the Court below be remitted back immediately along with copy of this Judgment. ————