JUDGMENT Hon’ble Bharat Bhushan, J.—This Criminal Appeal is directed against the judgement and order dated 16.1.2007 passed by Additional Sessions Judge/Special Judge, E.C. Act, Basti in Special Trial No. 47 of 2000 (State v. Idu Ansari) arising out of Case Crime No. 358 of 2000, under Sections 20-B/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act), P.S. Parsarampur, District Basti, whereby the appellant has been convicted under Sections 8/22 (c) of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years and a find of Rs. One lac with default stipulation. 2. Station House Officer, Police Station Parsarampur, S.I. Harishchandra alongwith his companions S.I. Ram Suresh Rao, Constable Laxman Pandey, Constable Virendra Pratap Sahi, Constable Mahendra Yadav, Constable Chotey Lal and others reached Ghaghoa check post on 15.11.2000 in the morning at about 5.30 a.m. and took the constable Majeed Khan and Mangru Ram from the check post alongwith them towards National Highway Ayodhya. They suddenly saw a person emerging from Ridhora on to National Highway towards Ayodhya. He was carrying a plastic pouch. He was asked to stop but he suddenly turned and started running towards Ayodhya. This suspicious conduct impelled the police personnel to run towards him. He was caught about 6.00 a.m. He allegedly admitted that he was carrying 4 kilograms of ‘Charas’ in plastic pouch (bag). The Station House Officer asked this person namely Idu Ansari, the present appellant whether he would like to have himself searched by a Gazetted Officer or a Magistrate ? But the appellant asked him to conduct search on the spot. He was accordingly searched and thereafter four kilograms of ‘Charas’ in gullies were allegedly recovered from the plastic pouch carried by the appellant, out of which, 50 grams of sample was taken and proceedings regarding sampling of recovered material etc was conducted. Recovery memo was prepared. They also tried to obtain services of public witnesses but no other citizen came forward to act as a witness. After conducting the usual proceedings the recovered articles and the appellant were taken to the police station. Communication regarding this recovery is said to have been sent on the wireless set to the Superintendent of Police, Basti. 3. The matter was investigated and charge-sheet was submitted. After conducting the usual proceedings the recovered articles and the appellant were taken to the police station. Communication regarding this recovery is said to have been sent on the wireless set to the Superintendent of Police, Basti. 3. The matter was investigated and charge-sheet was submitted. After submission of the charge-sheet, report of forensic laboratory endorsing that the recovered material was infact ‘Charas’, was also received. 4. As many as five witnesses were examined during course of trial on behalf of prosecution namely P.W.-1 Constable Nakched Prasad, P.W.-2 S.I. Harishchandra, P.W.-3 H.C. Keshav Prasad Dubey, P.W.-4 Sub Inspector Sudama Yadav (I.O.) and P.W.-5 Constable Satya Narayan Yadav. The accused appellant denied the prosecution story in his examination under Section 313 Cr.P.C. He contended that no recovery was made from him. According to appellant he had been falsely implicated by the police by arresting him from his house. In support of this claim, he adduced the evidence of D.W.-1 Virendra Pratap Sahi, D.W-2 Mohan Lal, D.W-3 Lal Kamlendra Pratap Singh and D.W-4 Mohd. Ali. On conclusion of trial, learned Trial Judge held that the appellant was guilty of possession of ‘Charas’ and accordingly convicted and sentenced the appellant as aforesaid. 5. Heard Mr. D. S. Mishra, learned counsel for the appellant, learned AGA and perused the material on record. 6. Learned counsel for the appellant has pointed out that the mandatory provisions of Section 50 of the NDPS Act have not been followed at the time of arrest of accused persons. 7. On the other hand, learned AGA has submitted that the recovery of ‘Charas’ was not effected from the person of the appellant and that he was merely carrying a plastic pouch which contained four kilograms of ‘Charas’ and therefore, it was not incumbent upon the arresting officials to offer the option of search from the Gazetted Officer or a Magistrate. Still the offer was made which was declined by the appellant. 8. Before deciding the question as to whether Section 50 of the NDPS Act was complied with or not, it would be proper to understand as to whether it was necessary for the police personnel to comply with the mandatory provisions of Section 50 of the NDPS Act. 9. Still the offer was made which was declined by the appellant. 8. Before deciding the question as to whether Section 50 of the NDPS Act was complied with or not, it would be proper to understand as to whether it was necessary for the police personnel to comply with the mandatory provisions of Section 50 of the NDPS Act. 9. Hon’ble Apex Court in the case of Union of India v. Shah Alam, AIR 2010 SC 1785 , has held that whenever the personal search is conducted, compliance of Section 50 of the NDPS Act is necessary irrespective of any recovery from that person. In that case, ‘Heroin’ was recovered from a bag carried by the accused, thereafter, personal search was also conducted but nothing was recovered from their person. But the Hon’ble Apex Court held that since the personal search had been conducted, the provisions of Section 50 of the NDPS Act would be applicable. 10. Similarly, in State of Rajasthan v. Parmanand, LAWS (SC) 2014 271, Hon’ble Apex Court has again held that if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act would not be applicable but if the bag is searched and his person is also searched then Section 50 of the NDPS Act would have application. In that case also accused’s bag was searched and from the bag opium was recovered. His personal search was also carried out. The Apex Court held that Section 50 of the NDPS Act in such case would have application. 11. Coming back to the facts of the case, it is apparent that recovery memo (Ex-Ka-2) itself discloses that once stated consent was given by the appellant for his search, personal search (JAMA TALASHI) was also conducted and thereafter four kilograms of ‘Charas’ was recovered from a plastic pouch carried by the appellant. There is no dispute that personal search of appellant was also made at the time of alleged recovery. Therefore, the provisions of Section 50 of the NDPS Act will have application in the instant case. 12. There is no dispute that personal search of appellant was also made at the time of alleged recovery. Therefore, the provisions of Section 50 of the NDPS Act will have application in the instant case. 12. Perusal of the testimonies of P.W.-2, S.I. Harischandra and the contents of the recovery memo, disclose that once the appellant admitted the possession of ‘Charas’ in a plastic bag carried by him, the Station House Officer reportedly, asked him whether he wanted himself to be searched by a Gazetted Officer or by a Magistrate. These words are very interesting. He was not apprised of existence of his right to have search made by either Gazetted Officer or by a Magistrate. He was simply asked as to whether he wanted himself to be searched by a Magistrate or a Gazetted Officer. There is no evidence that he was apprised of existence of his right to choose either a Magistrate or a Gazetted Officer for search. The idea behind taking the accused to a nearest Magistrate or Gazetted Officer, if he so desires, is to give him a chance of being searched in the presence of independent officer. It is equally important that the accused himself perceives that he has right which he could exercise. Merely asking him a question for proforma compliance is not enough. 13. Learned AGA has drawn the attention of this Court towards the consent letter Ex Kha-1) given by the appellant for his personal search to be conducted by the police personnel present on the spot. Admittedly, this consent form was written by the same police official who had transcribed the recovery memo. It was later on signed by the appellant. Perusal of this consent letter (ICHCHA FARD-Ex Kha-1) reveals that only one option of getting search conducted by a Gazetted Officer was given to him. This consent memo does not mention the Magistrate even once. Surprisingly it reinforces the earlier observation that the personal search of appellant was conducted. It is therefore, evident that neither the proper offer was given to the appellant nor was he apprised of the existence of his right to be searched either by Gazetted Officer or a Magistrate. Therefore, it can easily and safely be concluded that the provisions of Section 50 of the Act were not followed at the time of arrest and alleged recovery of the contraband. 14. Therefore, it can easily and safely be concluded that the provisions of Section 50 of the Act were not followed at the time of arrest and alleged recovery of the contraband. 14. It is pertinent to note the controversies regarding arrest of this appellant. Evidently some complaints related to the arrest of this appellant were made. Brother of the appellant had written a letter in this regard on the same day and the inquiry had been conducted by the Circle Officer. This fact has been admitted by the Station House Officer Harischandra himself during course of his examination on oath. Infact he has levelled the allegations that the Circle Officer was unhappy with him. This Circle Officer Pradeep Dubey had also been summoned by the appellant as defence witness (D.W-2). This witness has admitted that an enquiry had infact been conducted regarding arrest of appellant in this case. D.W-2 Pradeep Dubey has also admitted that during course of enquiry some witnesses, impersonating others, had deposed before him in favour of the Station House Officer but later on some other persons had also deposed against him. The evidence indicates that the matter was later on settled some how and a report had been submitted saying that on account of conflicting evidences Inquiry Officer could not reach to any conclusion. Testimony of D.W-2 does indicate that before he could complete departmental inquiry, a charge-sheet had already been filed against the appellant in the Court of law, even before the receipt of the report of forensic laboratory. 15. This inquiry report perhaps had not been placed during trial. These facts emerged from the testimonies of witnesses. Learned counsel for the appellant has argued that this backdrop cannot be ignored totally. 16. Learned counsel for the appellant has also argued that no public witness was obtained at t he time of arrest and recovery nor produced during course of trial. Ordinarily, there is no such law which provides that the police witnesses cannot be trusted. There is no rule which entails that the police officer cannot be cited as a witnesses or their depositions cannot be accepted without corroboration. Fact of the matter is that the testimonies of police witnesses can be accepted without any corroboration, if found otherwise reliable. 17. There is no rule which entails that the police officer cannot be cited as a witnesses or their depositions cannot be accepted without corroboration. Fact of the matter is that the testimonies of police witnesses can be accepted without any corroboration, if found otherwise reliable. 17. But in the instant case, there are far too many disturbing features to convict a person entirely on the testimony of only one person namely P.W.-2 Harischandra as other witnesses produced by the prosecution are formal witnesses including the Investigating Officer P.W-4 Sudama Yada. The testimony of P.W.-2 SHO Harischandra suffers from significant discrepancies. He had refused to answer large number of questions on the ground of loss of memory. The questions after questions were not answered claiming loss of memory (amnesia) or fading memory. He initially entrusted the investigation to one Sub Inspector Jagdish Singh but later on handed over the investigation to P.W.-4 his subordinate Sudama Prasad without any written order. Admittedly, no such order transferring the investigation from the sub Inspector Jagdish Prasad to P.W.-4 Sudama Prasad exists on the record who submitted the charge-sheet against the appellant without even waiting for the report of forensic lab. Sudama Prasad, PW-4 has admitted that the recovered articles were sent to the Court on 16.11.2000 and later on the entire recovered articles were kept in MALKHANA of police station for at least 25 days and there is no satisfactory link evidence to prove that the recovered articles continued to be in safe custody and there was no possibility of their tampering. There is no satisfactory evidence regarding sealing of sample. P.W-2 Harischandra has not been able to provide the evidence as to whose seal was used for sealing the contraband on the spot. Evidence reveals that the entire recovered articles, which were deposited in the MALKHANA of police station on 16.11.2000 (P.W.-3), and yet it was not sent to the forensic laboratory till 13.12.2000 without any satisfactory explanation for this considerable delay. 18. Strangely, P.W.-1 Harischandra, P.W.-3 Keshav Prasad Dubey and P.W.-4 Sudama Prasad, all have admitted that recovered material was neither weighed on the spot nor at the police station. The evidence reveals that weight of the recovered material was never ascertained yet specific quantity of four kilograms was mentioned in the recovery memo and in the FIR. 18. Strangely, P.W.-1 Harischandra, P.W.-3 Keshav Prasad Dubey and P.W.-4 Sudama Prasad, all have admitted that recovered material was neither weighed on the spot nor at the police station. The evidence reveals that weight of the recovered material was never ascertained yet specific quantity of four kilograms was mentioned in the recovery memo and in the FIR. Ascertainment of weight is very necessary for the simple reason that only the weight of contraband can determine whether the quantity was small, medium or commercial. Apparently, possession of ‘Charas’ of 2.5 kilograms or more would fall within the category of commercial quantity but without ascertaining the weight of contraband it cannot be said that commercial quantity was recovered. 19. I have carefully examined the material on record. It is apparent that evidence produced by the prosecution is not reliable. There are far too many discrepancies and weakness in the testimonies of P.W.-2 Harishchandra to inspire any confidence. No public witness has been produced by the prosecution in the instant case. 20. Satisfactory and trustworthy link evidence is almost non existent. The investigation appears to have been conducted in shoddy nature. In view of discussion made herein above, I have come to the conclusion that the prosecution has failed to establish its case against the accused appellant and the learned Trial Court has erred in convicting the appellant in absence of any satisfactory and trustworthy evidence. 21. Accordingly, the appeal is allowed and the conviction of the appellant is set aside and the accused is acquitted of the charges he stood trial for. The accused shall be released forthwith unless he is wanted in any other case. The record of the Court below be returned forthwith. ————