JUDGMENT Hon’ble Shiv Shanker, J.—This criminal appeal has been preferred against the judgment and order dated 31.3.1995 passed by VIth Addl. Sessions Judge, Ghaziabad in Sessions Trial No. 29 of 1993 convicting and sentencing the appellant to undergo 10 years R.I. and a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo two and half years R.I. under Section 22 of N.D.P.S. Act." 2. Brief facts arising out of this criminal appeal is that on 16.11.92, S.I. Sultan Singh (P.W. 2) was returning after making enquiry of the application and stopped at Loni crossing where informer (Mukhbir) met with him and had given information to him that one person is likely to come from the side of railway station Loni having illegal smack, upon which he had tried to take the public witnesses but none was prepared to become a witness. Therefore, constable 2 C.P. Veersain and constable 1294 C.P. Omprakash were taken with him who were deputed on picket duty at Loni crossing. After giving information regarding the informer (Mukhbir) to them, search was taken amongst them. No illegal article was found in possession of any of them. Thereafter, all have proceeded along with informer and reached near the crossing situated at Banthala railway gate, where one person was seen at the crossing coming from front of them. The informer pointed out that he is the man who is having illegal smack. Thereafter the informer (Mukhbir) has returned. After seeing the police personnel, above person had turned and tried to run away fastly, upon which he was challenged and he was apprehended at station road at about 8.30 P.M. at the distance of 20 steps from the said Tiraha. He has disclosed his name as Asfaq. Thereafter “Jamatalashi Rajpatrit Adhikari Ke Samaksh Chalkar Lene Ke Liye Kaha To Kahane Laga Ki Aap Hee Jamatalashi Le Len.” Thereafter, 20 puriyas smack, wrapped in the packet were found in the right side pocket of his paint at his search. It was asked from him, as to from where it has been received. He did not give any satisfactory reply. Thereafter, the recovered smacks were kept in white clothes in polythin (panni) and after sealing it, Fard Ext. Ka-1 was prepared in the torch light and electric light. It was asked from him, as to from where it has been received. He did not give any satisfactory reply. Thereafter, the recovered smacks were kept in white clothes in polythin (panni) and after sealing it, Fard Ext. Ka-1 was prepared in the torch light and electric light. Signature was obtained from the police official upon the Fard and its copy was given to the accused after obtaining his signature upon it. After taking accused and recovered contraband article, Fard was submitted in the concerned police station, where accused was put in the lock up and chick F.I.R. Ext. Ka-4 was prepared and case under Section 22/32 of N.D.P.S. Act was registered. Investigation of this case was entrusted to S.I. Sri Ram Sewak Upadhyaya (P. W. 3). 3. During the course of investigation, recovered contraband article was sent for chemical examination, from where chemical report was received. It reveals that heroin was found from the said contraband article. After completion of investigation, charge-sheet Ext. Ka-3 was submitted against the accused above in the concerned Court. Accused Asfaq above was charged for the offence under Section 22/32 of N.D.P.S. Act who pleaded not guilty and claimed to be tried. 4. Prosecution examined three witnesses namely P.W. 1 Veersain. He is fact witness who stated prosecution story and proved recovery memo Ext. Ka-1 and 20 puriyas smack. 5. P.W. 2 Sultan Singh is an arresting officer, who stated about prosecution story. P.W. 3 S.I. Ram Sewak Upadhyaya is Investigating Officer of this case. He proved site plan Ext. Ka-2. The charge-sheet was filed against accused Ext. Ka-3, Chick F.I.R. was registered Ext. Ka-4 and the copy of case Kayami G.D. Vide Ext. Ka-5. 6. Statement of accused under Section 313, Cr.P.C. was recorded who denied all the questions asked from him and stated that he was arrested by the police from the house of one Veer Singh and implicated falsely in this case by showing police activities. 7. After considering the submissions of learned Counsels for both the parties and perusing the whole evidence on record, the accused above was found guilty for the offence under Section 22 of N.D.P.S. Act. Therefore, he was convicted and awarded sentence for 10 years R.I. and a fine of Rs. 1 lakh. Feeling aggrieved by it accused appellant has preferred the present appeal. 8. Therefore, he was convicted and awarded sentence for 10 years R.I. and a fine of Rs. 1 lakh. Feeling aggrieved by it accused appellant has preferred the present appeal. 8. Heard learned Counsel for the appellant and learned A.G.A. and perused the whole evidence on record as well as impugned judgment and order passed by the trial Court. 9. Learned Counsel for the appellant has submitted that no sample was taken from the alleged recovered contraband article and the same was sent to the chemical examiner for its examination. Therefore, in absence of not taking sample from the recovered contraband article, it is not believable that the said contraband article was only sent to the chemical examiner for its examination. It is further contended that Section 50 of N.D.P.S. Act was not complied in taking personal search of the appellant which is mandatory provision and non-compliance of the said provision, the whole trial is vitiated. It is further contended that contraband article was not forwarded according to rules. Therefore, it is not certain that only recovered contraband was sent to chemical examiner. It is further contended that after search and seizure, no report was sent by arresting officer to his higher authorities regarding it. He has also not complied with Section 57 of N.D.P.S. Act. In such circumstances, the trial Court has committed error in convicting the appellant for the said charge and he is liable to be acquitted by allowing his appeal. 10. On the other hand, learned A.G.A. has urged that Section 50 of N.D.P.S. Act has been complied with at the time of taking search and seizure. There is no averment regarding non-compliance of Section 50 of N.D.P.S. Act. Compliance has been made by the arresting officer regarding the above section. Therefore, trial cannot be vitiated and accused cannot be acquitted. It is further contended that the whole recovered contraband was sent to the chemical examiner for its examination. There is no illegality in not taking sample from it. It was sent in the same manner without any tampering to the chemical examiner. Therefore, it is not liable to be deemed that the seal of recovered contraband was tampered. It is further contended that Sections 42 and 57 of N.D.P.S. Act are not mandatory but directory. There will be no effect in not complying these sections. It was sent in the same manner without any tampering to the chemical examiner. Therefore, it is not liable to be deemed that the seal of recovered contraband was tampered. It is further contended that Sections 42 and 57 of N.D.P.S. Act are not mandatory but directory. There will be no effect in not complying these sections. It is further contended that P.W.1 Veersain and P.W. 2 Sultan Singh have supported the prosecution case in their deposition and case was fully proved against the appellant. Therefore, the trial Court has rightly convicted the appellant according to law and he is not liable to be acquitted and this appeal is liable to be dismissed. 11. P.W.1 constable Veer Sain has been challenged on behalf of appellant at the time of his cross examination that he was arrested by the police from the house of one Veer Singh. In such circumstances, the prosecution was bound to prove that P.W.1 and P.W. 2 had proceeded from the concerned police station and reached at the place of incident where he was allegedly arrested. In this regard, nothing has been mentioned in the recovery memo Ext. Ka-1, by which G.D. P.W.1 Veersain and P.W. 2 Sultan Singh had proceeded. Similarly they have not stated in their depositions regarding it. Case Kayami G.D. Ext. Ka-5 also does not reveal that G.D. Number of Ravanagi was mentioned in it. In absence of not producing of Rawanagi G.D. in evidence regarding P.W.1 and P.W. 2, presence of both the witnesses at the place of incident have become suspicious. When the presence of both witnesses at the place of incident has become suspicious, in such circumstances, search and seizure of contraband article from the possession of appellant is also liable to be suspicious. 12. It is worthwhile to mention here that there is no public witness in this incident. Only police personnel P.W.1 and P.W. 2 have been adduced in evidence. It does not mean that evidence of police personnel only cannot be believed provided their evidence inspired confidence. The informer has already given information regarding accused/appellant at the crossing of Loni. In such circumstances, some persons may pass through the crossing and any one could be made witness as public witness by P.W.1 and P.W. 2. It does not mean that evidence of police personnel only cannot be believed provided their evidence inspired confidence. The informer has already given information regarding accused/appellant at the crossing of Loni. In such circumstances, some persons may pass through the crossing and any one could be made witness as public witness by P.W.1 and P.W. 2. It has been stated by P.W.1 Veersain and P.W. 2 Sultan Singh that they have tried to take public witness but none was prepared for the same. This shows that both the witnesses P.W.1 Veersain and P.W. 2 Sultan Singh have contacted some public persons but they have not stated anywhere by disclosing the name of such person who did not prepare to become public witnesses and in not disclosing the name of such person, only inference can be drawn that they have not tried to take any public witness after receiving information from the informer. If the public witness will be taken by them regarding alleged search and seizure, they could not support the prosecution case. Therefore, no any public witness was made in the case. In such circumstances, in absence of public witness, testimony of both the police personnel is not liable to be believed. 13. It is also worthwhile to mention here that the alleged contraband article was recovered on 16.11.92 It was kept in Malkhana of the concerned police station, from where P.W. 3 Ram Sewak Updhyay who is Investigating Officer, took the said bundle and sent it to the chemical examiner for its examination on 24.11.92. The same was received in the office of chemical examiner on 26.11.92. Its report dated 7.8.93 was received in the Court, whereas the charge sheet dated 10.12.92 against the appellant was already filed in the concerned Court. Therefore, charge-sheet was filed without chemical examination report in the Court when the recovered contraband was kept in Malkhana of G.D. of police station after recovery and sent to the chemical examiner for its report but no evidence has been adduced on behalf of prosecution by proving that recovered bundle of contraband article was kept in the lock up of police station intact till giving to the Investigating officer and it was the same intact received in the office of chemical examiner. It could be proved by producing malkhana register or G.D. of lock up and producing the concerned police officials who took such article in intact condition to the office of chemical examiner. It is also worthwhile to mention here that sample of seal has not been produced in evidence on behalf of prosecution. 14. It has been observed in decision of Apex Court in case of State of Rajasthan v. Gurmail Singh, (2005) 3 SCC 59 that “Infirmities in prosecution case—Though the seized article claimed to have been kept in malkhana on 20.5.1995 till it was taken over on 5.6.1995, but malkhana register not produced in support thereof— No sample of seal sent along with the sample to Excise Laboratory for comparing with the seal appearing on sample bottles and thus there was no evidence to prove that the seals found were the same as were put on the sample bottles immediately after seizure of the contraband-Held, link evidence adduced by prosecution not satisfactory in view of the loopholes in the prosecution case, High Court rightly acquitted the accused-respondent”. 15. It has also been observed in decision of Apex Court in case of State of Raiasthan v. Gopal, (1998) 8 SCC 449 that “Seal on sample sent to the Analyst not produced in Court for verification- Article seized on the railway platform and seal of station master used but station master not examined to prove the seal—Accused not given an option to exercise his discretion for being searched in the presence of a magistrate or gazetted police officer—Held, in the circumstances order of acquittal calls for no interference by the Supreme Court.” 16. Therefore, both the decision of Apex Court are fully applicable in the case. In such circumstances, no any link evidence was produced on behalf of prosecution. 17. It is also worthwhile to mention here that there was no compliance of Sections 42, 43, 57 of N.D.P.S. Act. There is no evidence on record that information regarding search and seizure was sent to the higher authorities within 48 hours for complying provisions of Section 57 of N.D.P.S. Act, although Sections 32 and 57 are not mandatory but directory. It is also worthwhile to mention here that Section 52 of N.D.P.S. Act was also not complied as reasons of arrest was not shown to the accused appellant. Section 52 of N.D.P.S. Act is also directory. 18. It is also worthwhile to mention here that Section 52 of N.D.P.S. Act was also not complied as reasons of arrest was not shown to the accused appellant. Section 52 of N.D.P.S. Act is also directory. 18. It has been observed in decision of this Court in case of Roshan Lal v. State of U.P., 2007 (58) ACC 723 that “Sections 20(b) (ii), 57 and 50-Conviction—Sustainability—Recovery of 7 kgs of charas from the appellant from a public place—Nothing tangible to show that any endeavour was made to joint independent witness of search and seizure-Requirements of Sections 52 and 57 not complied with—Appellant arrested without informing him of the ground of arrest- No evidence led to show that soon after the arrest and seizure the immediate superior officer was made to know about the details of such search and seizure-Prosecution unable to prove that the contraband was recovered from appellant—Possibility of plantation of the contraband not ruled out—Conviction and sentence set aside.” 19. Therefore, the trial cannot be vitiated merely in not complying provisions of Sections 42, 52 and 57 of N.D.P.S. Act. However, it does not mean that it should be given a complete go by as that will make Section 57 otiose. It is a cardinal principle of law that if a thing is required to be done in a particular manner then that thing should be done in that manner or not at all. Non-observance of the Section 57 of the N.D.P.S. Act does not by itself diminishes the recorded conviction but it certainly diminishes the value of evidence led in the trial by the prosecution.” 20. It is also worthwhile to mention here that Section 50 of N.D.P.S. Act is mandatory and in violation of it, trial can be vitiated. In the present case, Section 50 of N.D.P.S. Act was attracted as it was not a chance recovery and the alleged recovery was made from the pocket of appellant, although P.W.1 and P.W. 2 have given evidence that Section 50 of N.D.P.S. Act was complied with at the time of taking its search and seizure. 21. In the present case, Section 50 of N.D.P.S. Act was attracted as it was not a chance recovery and the alleged recovery was made from the pocket of appellant, although P.W.1 and P.W. 2 have given evidence that Section 50 of N.D.P.S. Act was complied with at the time of taking its search and seizure. 21. Learned Counsel for the appellant has attracted my attention towards the decision of Apex Court in case of State of Punjab v. Baldev Singh, 1999(39) ACC 349 (SC), consisting of five Judges Bench including Chief Justice of India, in which it has been observed at para 23 of this judgment that “It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singh’s case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncements to the effect that if an obligation of the empowered officer and his duty before conducting the search of the person of a suspect on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad.” 22. It has been observed in the decision of Apex Court in case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2007)1 SCC 433 consisting of three Judges Bench including Chief Justice of India that “As per decision of Constitution Bench in Baldev Singh, (1999)6 SCC 172 , it is not enough that the accused be told that whether he would prefer to be searched in the presence of a gazetted officer or a Magistrate—He must be told of his right to be searched in the presence of a gazetted officer or a Magistrate—However, in view of some conflicting decisions rendered by Supreme Court in this regard, matter requires some clarification by a larger Bench—Hence, directed to be placed before Chief Justice of India for further action.” 23. Therefore, the above pronouncement of Constitutional Bench in case of Baldev Singh, (1999) 6 SCC 172 has not been overruled till now. Therefore, it is to be followed. 24. In the present case it was asked from the appellant by P.W.1 Veersain and P.W. 2 Sultan Singh that “Jamatalashi Rajpatrit Adhikari Ke Samaksh Chalkar Lene Ke Liye Kaha To Kahane Laga Ki Aap Hee Jamatalashi Le Len.” 25. Therefore, there was no complete compliance of Section 50 of N.D.P.S. Act and merely on that basis trial could be vitiated. However, trial Court has committed error in convicting the appellant for the said charge. 26. In view of above discussions, there is no force in the submissions made by learned A.G.A. and the trial court has committed error in convicting the appellant for the above charge and he is liable to be acquitted by allowing this appeal. 27. Therefore, the appeal succeeds and is allowed. The conviction and sentence of the appellant for the charge levelled against him is hereby set aside. The accused appellant is hereby acquitted. He is on bail. His bail bonds are cancelled and sureties are discharged. The amount of fine, if deposited by the appellant, shall be refunded to him. The recovered contraband article, as above, be confiscated. Record of the Court below be remitted back immediately along with copy of this judgment. ————