JUDGMENT Akhilesh Chandra, J. Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. 2. The solitary appellant has preferred this appeal against his conviction for the offences under Section 20(b)(II)(c) of N.D.P.S. Act (hereinafter referred to as the 'Act') sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1 lakh in default to further undergo rigorous imprisonment for a year as awarded on 17th September, 2010 by 1st Additional Sessions Judge, Gaya. in connection with N.D.P.S. Case No. 14/2010/2/2009 arising out of Sherghati P.S. Case No. 103 of 2009. 3. Prosecution has come out with a case against the appellant as narrated in Exhibit-2 self written statement of (PW 10) Upendra Prasad, the Probationer Dy. S.P. cum Officer Incharge of Sherghati Police Station. Gaya, on 15.4.2009 at 1.30 a.m. while he was on night patrolling with his team got information at about 23.10 hours on 14.4.2009 that a Truck bearing Registration No. RJ-19GA-3177 apparently loaded with paddy dust also carry ganja, whereon he arrived with his team near Hotel Anandlok at GT Road and found the said Truck standing there and the appellant sitting on the driving seat made unsuccessful attempt to escape. However, on apprehension disclosed his identity his personal raid was conducted by the informant in presence of the witnesses during which except cellular phone nothing more was recovered and during search of Truck 240 bags of paddy dust besides 4 bags containing respectively approximately 22 kg, 26 kg, 7 kg and 27 kg of ganja totaling to 82 kgs. Were recovered. No valid paper etc. were shown, it was seized and serving copy of seizure list in presence of the witnesses. Appellant was apprehended, copy of seizure list was also served. Case was instituted and the informant himself investigated but due to his subsequent transfer final charge-sheet was submitted by PW 7. 4. Before the trial Court, the appellant faced trial for the offences wherein he has been convicted and sentenced on production of 10 prosecution witnesses besides following documentary evidence : Exhibit-1 - Formal First Information Report. Exhibit-2 - Fardbeyan written by Upendra Prasad. Exhibit-3 - Seizure List. Exhibit-4 - Signature of Krishanandan on seizure list. Exhibit-5 - forensic report No. 612/09. 5. In defence also two witnesses were produced besides following documentary evidence: Exhibit-A - Receipt of Forensic Science Laboratory. Exhibit-2 - Fardbeyan written by Upendra Prasad. Exhibit-3 - Seizure List. Exhibit-4 - Signature of Krishanandan on seizure list. Exhibit-5 - forensic report No. 612/09. 5. In defence also two witnesses were produced besides following documentary evidence: Exhibit-A - Receipt of Forensic Science Laboratory. Exhibit-B - Report of Office Incharge Sherghati dated 6.11.2009. 6. And trial Court on consideration of the materials as stated and arrived at the conclusion holding guilty giving rise to the present appeal. 7. Learned counsel for the appellant by placing reliance upon the decision of this Court in a case Radha Devi v. The State of Bihar, reported in 2011(1) PLJR 1054 , contended that this a case of glaring violation of mandatory requirement under law and the appellant has falsely been implicated and detained for a substantial period for his no fault. 8. On the other hand, learned counsel representing the State tried to support the findings of the Court below on the ground mentioned therein and further contended that the articles recovered from the Truck of the appellant was ganja is established after FSL report no interference is required. 9. As is evident from Exhibit-2 as well statement of the Informant-cum-Investigating Officer (concluded major part of investigation) is that at no point of time whatever article was recovered from the truck was ever weighed, respective weights have been given by own estimation of the informant. No care was taken to draw samples from such recovered articles or keep the samples and recovered article under due seizure. Roughly 1½ month after alleged seizure an order was obtained from Special Judge to transmit the sample for chemical examination, without taking care of obtaining due samples from the alleged recovered articles and Exhibit-A marked during cross-examination of this PW 10 is the receipt issued from FSL, Patna, indicating receipt of sample on 8th June, 2009. There appears no explanation on behalf of the prosecution for such, delay of about a quarter less two months. This alone is sufficient to vitiate the trial. 10. PW 10 and PW 9 respectively are Krishan Nandan and Surendra Manjhi, the two seizure list witnesses since did not support prosecution version declared hostile. PW 7 is subsequent Investigating Officer Arun Kumar Singh said nothing but simply formally proved Exhibits-1 to 3 and practically submitted charge-sheet which was left by his predecessor PW 10 the informant himself. 11. 10. PW 10 and PW 9 respectively are Krishan Nandan and Surendra Manjhi, the two seizure list witnesses since did not support prosecution version declared hostile. PW 7 is subsequent Investigating Officer Arun Kumar Singh said nothing but simply formally proved Exhibits-1 to 3 and practically submitted charge-sheet which was left by his predecessor PW 10 the informant himself. 11. PW 6 is Mumtaz Rai driver of the vehicle in which patrolling party was on patrol duty, but since the police jeep was stopped much behind the place of occurrence, he has nothing to say about search and seizure etc. PW 5 is Jawahar Singh another constable and member of the raiding party except search he has nothing to say. 12. PW 4 is Lakshman Prasad is another member of raiding party said nothing more than what PW 5 has said. PW 3 is Ambika Singh another constable, though said to be a member of raiding party but not examined under Section 161 of Cr PC and in cross-examination he has said what he has stated it was narrated to him by the informant cum Investigating Officer (PW 10). 13. PW 2 is Rajhali Ray another constable allegedly participating in raid and recovery and according to him after search of Truck raid was conducted in the hotel also from where the apprehended person made an unsuccessful attempt to escape. This creates a doubt against the entire prosecution version whether the appellant was apprehended during making unsuccessful attempt to escape from the Truck or from the Hotel and this is the defence version. On mere suspicion, the appellant has been apprehended while he was inside the Hotel for meals etc. 14. PW 1 is Tileshwar Yadav another constable a member of raiding party apart from stating what other constables has said as stated earlier. Contrary to the informant and PW 1 he speaks about specific weighing of the recovered contraband article and it was found to be 82 kgs. No doubt, informant has estimated the same to be 82 kgs., but it is fair enough to say that it was a simple estimation but this witness speaks a different story. 15. Contrary to the informant and PW 1 he speaks about specific weighing of the recovered contraband article and it was found to be 82 kgs. No doubt, informant has estimated the same to be 82 kgs., but it is fair enough to say that it was a simple estimation but this witness speaks a different story. 15. In the facts and circumstances as stated above, as is evident that prosecution right from beginning failed to observe the mandatory requirements as prescribed under the Act even at the time of personal search of the appellant especially when there was prior information of ganja it was incumbent upon the prosecution to intimate the appellant about his right as contemplated under Section 50 of the Act, which reads as such: "50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorized 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 to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (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. (5) When an officer duly authorized under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy two hours send a copy thereof to his immediate officer superior." 16. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy two hours send a copy thereof to his immediate officer superior." 16. And if it is not done as in the instant case, this also independently is sufficient to vitiate entire trial. Apart from the above, other provisions like Sections 42, 50 and 52-A of the N.D.P.S. Act, and this case appears squarely covered under the Division Bench decision of this Court in case of Radha Devi (supra) and in para 16 which reads as such : "16..........All mandatory provisions specially Sections 50 and 50(4) as well as Section 52A(2)(a)(b)(c) of the NDPS Act have been violated by the prosecution and on account of such violations the conviction of the appellants cannot be considered sustainable and legal." 17. Besides the above decision of this Court dated 22.8.2013 in Criminal Appeal (SJ) No. 1021 of 2010, Harendra Paswan v. The Union of India, relying upon the decisions in case of Khet Singh v. Union of India, reported in 2002 (4) SCC 380 ; Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539 : 2009 (4) PLJR (SC) 128; Pramod Sah v. The State of Bihar, reported in 2007 (1) PLJR 587 and Birendra Kumar Sharma v. Union of India, reported in 2013 (3) PLJR 87 , is also equally important to refer for needfuls. 18. The time has come for the prosecuting as well as adjudicating agency to be careful and cautious while dealing with such case and avoid undue raining of cases either before the trial Court or appellate Court wherein due to their own laches or non-appreciation of the provisions of the offenders if at all have committed any wrong is bound to be acquitted or serve detention for substantial period without committing any such offence. 19. In view of the above, by no means conviction and sentence of the appellant can be said sustainable, consequently conviction and sentence of the appellant is set aside. Appeal is allowed. Appellant is directed to be released at once, if not behind the bars in connection with any other case. Appeal allowed.