Judgment Uma Nath Singh, J. 1. This criminal appeal arises out of a judgment dated 17.4.1996 passed by learned Sessions Judge, Ludhiana, recording acquittal of the sole accused-respondent in an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act), registered for he was found in possession of 15 bags of poppy husk, each containing 40 kgs, without any licence or permit. 2. As per the prosecution case, on 15.7.1992, SI Ram Kumar (PW4) along with HC Jagtar Singh (PW2) and other police officials, was present at the T Point of village Seera. At that time, in another vehicle, namely, Allwyn Nishan, being driven by Niranjan Singh, ASI Jaspal Singh (PW3) and HC Ajit Singh, also reached there. SI Ram Kumar received a secret information at that time that accused Swaran Singh son of Dalip Singh of village Gadhapur was selling poppy husk in his house constructed in the fields and in case of a raid, the contraband item in huge quantity could be recovered. The information, prima facie, found to be reliable, was sent by way of ruqa (Ex.PF) to the Police Station. A formal FIR (Ex.PF/1) was recorded on that basis. Accordingly, a raid-party was constituted which proceeded towards village Gadhapur. On the way, one Sunder Singh was associated, and thereafter, house of the accused was raided, which was situated within the revenue limits of village Gadhapur. The accused was arrested by the SI and interrogated. During that course, he made a disclosure statement (Ex.PC) that he had concealed 15 bags of poppy husk in a room of his house, where the wheat chaff was stored. According to the prosecution case, this information was within the exclusive knowledge of the accused. The disclosure statement (Ex.PC) was reduced into writing, whereat the accused impressed his thumb mark, which was attested by PW Sunder Singh and ASI Jaspal Singh (PW3). This is also a prosecution case that at that stage the accused was informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate, but since he reposed faith in SI Ram Kumar, 15 bags of contraband item were recovered by the police after removing the wheat chaff. Thereafter, two samples of 250 grams each bag were taken out from 15 bags. Thereafter, two samples of 250 grams each bag were taken out from 15 bags. Thus, in total, 30 samples were taken, and the remaining quantities being 39-1/2 kgs in each bag were separated. In total 30 parcels of samples and 15 parcels of the remaining quantities were thus prepared. The SI put his seal bearing the impression `RK. Vide the recovery memo (Ex.PD), the parcels were taken into possession. From personal search also, Rs. 150/-were recovered from the accused and were taken into possession vide the recovery memo (Ex.PE). A rough site plan (Ex.PF) of the site of recovery was prepared. On return of the police party to the Police Station, SI Ram Kumar (PW4) deposited the case property with the samples, with MHC Sukhbir Singh (PW1). Next day, the case property was produced before the concerned Judicial Magistrate Ist Class, Ludhiana. The samples were sent to the Chemical Examiner and on receipt of a report (Ex.PA), which disclosed the nature of contraband, being churapoppy-heads, containing the ingredients of Morphine and Maconic Acid, a challan was laid against the accused. The case was ultimately committed to the Court of Sessions and the accused was tried upon a charge under Section 15 of the Act, to which he pleaded not guilty and claimed trial. Finally, the trial of the accused ended in an order of acquittal by the impugned judgment. 3. Heard learned Counsel for the parties and perused the record. 4. According to learned Additional Advocate General for the State of Punjab, the premises in question, being the place of recovery, was in exclusive possession of the accused respondent and a huge quantity of the contraband item could not have been planted upon the accused. This is also her submission that the provisions of Section 50 of the Act are not mandatory and now they are required only in the case of search of person, in view of the judgment of Honble the Apex Court, (State of H.P. v. Pawan Kumar). This is further submitted that the time of recovery being 2.00 P.M., in day time, provisions of Section 42(1) of the Act, if not strictly adhered to due to paucity of time, could not have caused any prejudice to the rights of the accused respondent. 5. This is further submitted that the time of recovery being 2.00 P.M., in day time, provisions of Section 42(1) of the Act, if not strictly adhered to due to paucity of time, could not have caused any prejudice to the rights of the accused respondent. 5. On the other hand, learned Counsel for the respondent submitted that this is a case where the provisions of Section 50 of the Act, which were mandatory at the relevant time, were given a go bye and despite having sufficient time at the disposal of the police, secret information was not reduced into writing and sent to the superior officer, as required under Sections 42(1) and 42(2) of the Act. This is also her submission that though the seizure was effected from a kotha, but no independent witness was associated even in the day time. The seal of the SHO was not handed over to any independent witness and there was a delay in dispatch of the samples to FSL for chemical examination. 6. We have carefully considered the rival submissions of learned Counsel and perused the record. 7. In this appeal against the order of acquittal, the acquittal has been recorded also due to non-compliance of Section 50 of the Act. However, there are a number of other glaring infirmities in the procedure followed by the prosecution which would have caused serious prejudices to the rights of the accused. The SI of the police Ram Kumar had sufficient time at his disposal when he had received the secret information in day time at about 2.00 P.M. He was standing at a T Point with sufficient police force and one of the police personnel could have been sent with that information to the official superior towards following the necessary safeguards. Recovery of the contraband item, though 15 bags in quantity, was effected from a locality with inhabitation where independent witnesses were available, but for the reasons better known to the prosecution, no such witness was associated. It appears that, firstly, the accused was arrested and then the search process has started. This is an admitted case that personal search of the accused was taken only after recovery of the contraband item. Moreover, the accused was arrested only on the basis of secret information without recovery of contraband and then interrogated but his personal search was not taken at that stage. This is an admitted case that personal search of the accused was taken only after recovery of the contraband item. Moreover, the accused was arrested only on the basis of secret information without recovery of contraband and then interrogated but his personal search was not taken at that stage. Thus the initial consent for search was only in respect of the search of the premises and not for the search of person, which should have been conducted only in the presence of a Gazetted Officer or a Magistrate vide the ratio of judgment in Pawan Kumars case. It also does not appear that a separate consent for search of person was given by the accused. Moreover, SI Ram Kumar (PW4) has admitted that he had not recorded the consent of the accused for his personal search. This being a mandatory provision has been grossly violated. As regards compliance of Section 42(1) of the Act, Honble the Apex Court in the judgment of Dalip and Anr. v. State of M.P. 2007(1) RCR (Crl.) 586, while discussing its earlier judgments including the ones rendered in (i) State of Punjab v. Balbir Singh, and (ii) State of Punjab v. Baldev Singh, has further articulated the law in paras 14 and 15 of the judgment as under: 14. Ms. Vibha Datta Makhija, learned Counsel appearing on behalf of the State, however, would support the judgment of the High Court contending that this Court in State of Punjab v. Balbir Singh, categorically held that an illegal search may not have any direct impact on the prosecution case. This Court therein opined as under: The questions considered above arise frequently before the trial Courts. Therefore, we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 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 a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform he empowered officer who should thereafter 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 the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is a total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or a Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or a Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance 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 merits of the case. 15. This Court, therefore, clearly held as to what extent provisions of Sections 41 and 42 are mandatory and to what extent they would not be. 8. Thus in terms of Section 42(1), the prior information should be necessarily reduced into writing and in terms of Section 42(2) should be immediately sent to the official superior. To that extent the provisions being mandatory have been violated in this case. If a search is made on prior information, the provisions of Section 50 of the Act are to be mandatorily complied. In the instant case, the search of person of the accused was done later after search of premises and for search of person no consent was taken. Here also mandatory provisions have been violated. 9. That apart, there is no explanation whatsoever for 7 days delay in sending the samples to the FSL for chemical examinations. Besides, after seizure, the articles were produced only before the MHC, who took them into custody for depositing in malkhana; but as an additional safeguard, as required under the law, the same should have been produced before a senior police officer, like SHO or Additional SHO for physical verification. Thus, the violations of provisions of Sections 52 to 57 though not mandatory have also caused prejudice to the rights of the accused. 10. Thus, the violations of provisions of Sections 52 to 57 though not mandatory have also caused prejudice to the rights of the accused. 10. In view of the aforesaid discussions, we are of the view that the accused respondent has suffered a a grave prejudice to his rights and moreso, when at the time of recovery, the accused-respondent had four grown-up sons, and simply because he is the head of the family, he could not have been involved in this case without following proper safeguards, and arrested without any recovery. 11. Hence, the State appeal against acquittal being devoid of merit is hereby dismissed.