JUDGMENT : Ajay Mohan Goel, J.: This appeal has been filed by State against the judgment passed by the Court of learned Special Judge (Fast Track Court), Solan, in Case No. 5FTC/7 of 2010 dated 30.11.2010, vide which, learned trial Court has acquitted the accused for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act. 2. The case of the prosecution was that on 14.11.2009 Maheshinder Singh, ASI, Police Station, Sadar Solan alongwith other police officials reached at Oachghat-Damog road near the orchard of Sudhir Sood at Nandal (Gavaili) at around 4.00 P.M. and as soon as they saw the police vehicle No. HP-14-A-6205, two boys ran towards Damog side one of whom was apprehended by SHO Police Station, Sadar Solan with the help of other accompanying police officials and other boy (accused) was apprehended by ASI Maheshinder Singh with the help of HC Nek Ram etc. at a distance of 20-30 yards away from the place where the other boy was apprehended by the SHO. At that time, one Rakesh Kumar also came there and in his presence, the name of the accused were asked by the police party. The accused disclosed his name as Sanjay Kumar alias Sanju son of Amar Singh, resident of Shayaghat P.O. Kotla Pajota, Tehsil Pachhad, District Sirmaur. The accused was carrying a cloth bag of dark green colour in his right hand and on suspicion that the said accused was carrying some suspicious substance in the said bag, ASI Maheshinder Singh gave in writing to the said accused that the bag was liable to be searched and on this, accused gave his consent that the search can be conducted by ASI Maheshinder Singh. Thereafter, ASI Maheshinder Singh, other police officials and Rakesh Kumar gave their personal search to the accused and Memos regarding consent and personal search were accordingly prepared. This was followed by search of the bag of the accused which he was carrying in his right hand, inside which there was a polythene bag of white and red colour on which in English language ‘have a nice day’ was found written. When the said polythene bag was checked, substance like Dhoop Batinuma in the shape of sticks were found and the substance was smelled, tasted and burnt and contraband was found to be Charas. When the said polythene bag was checked, substance like Dhoop Batinuma in the shape of sticks were found and the substance was smelled, tasted and burnt and contraband was found to be Charas. Scale and weights were taken out by the Investigating Officer from his investigation bag and after the Charas was weighed, the same was found to be 300 grams. The said recovered Charas was put in the same polythene bag which was thereafter put in the cloth bag and the same were sealed in a cloth parcel with seal impression ‘A’ at 9 places. Specimen seal impression of ‘A’ was separately drawn and NCB form in triplicate was also filled in and the specimen of seal impression ‘A’ was also drawn on NCB form and thereafter, seal was handed over to witness Rakesh. The parcel of Charas was taken into possession vide Memo by the police duly signed by the witness and accused and copy of same was also provided to the accused free of cost. Rukka was scribed by the Investigating Officer and the same was sent to Police Station Sadar Solan through Constable Nanak Chand for registration of FIR. Photographs of Charas and accused were taken on the spot by the Investigating Officer and site plan was also prepared. Thereafter, the accused was arrested. Information of his arrest was given to his relative. Case property was deposited by the Investigating Officer with MHC of Police Station Sadar who deposited the same in the Malkhana and later on, same was sent to FSL Junga and Chemical Examiner gave his opinion that the samples were that of Charas. 3. After completion of the investigation, challan was filed in the Court and as a prima facie case was found against the accused, he was charged for commission of offence punishable under Section 20 of Narcotic Drugs & Psychotropic Substances Act, to which, he pleaded not guilty and claimed trial. 4. On the basis of material produced on record by the prosecution, learned trial Court held that the prosecution had failed to prove that on 14.11.2009 the accused was found in exclusive and conscious possession of 300 grams of Charas in a polythene bag being carried in his hand and it accordingly acquitted the accused of offence punishable under Section 20 of ND&PS Act. 5. Mr. 5. Mr. Vikram Thakur, learned Deputy Advocate General, argued that the judgment passed by learned trial Court was not sustainable in law as the conclusion of acquittal arrived at by learned trial Court was not borne out from the records of the case. According to Mr. Thakur, the judgment of acquittal returned by learned trial Court was a result of misreading and mis-appreciation of evidence both ocular and documentary produced on record by the prosecution. According to Mr. Thakur, the prosecution had proved its case against the accused beyond reasonable doubt, however, learned trial Court rather than appreciating the evidence so placed on record by the prosecution in the correct perspective, acquitted the accused by arriving at the conclusions which are totally contrary to the evidence on record. Mr. Thakur argued that learned trial Court had discarded the testimony of the prosecution witnesses for unsustainable reasons in the absence of any proof of enmity and the findings so arrived at by trial Court, were totally unreasonable and unsustainable. According to Mr. Thakur, the testimony of prosecution witnesses was well reasoned and consistent on material points. It was further submitted that there was no procedural infirmity with the investigation carried out by the police and this very important aspect of the matter had also been ignored by learned trial Court. Accordingly, on these basis it was submitted by Mr. Thakur that the judgment of acquittal passed by learned trial Court was perverse and was liable to be set aside. 6. Mr. Inderjeet Narwal, learned counsel for the respondent, on the other hand, argued that there was no merit in the present appeal and the findings of acquittal returned by learned trial Court were based on correct and true appreciation of material produced on record and the same did not warrant any interference. Mr. Narwal argued that there was neither any perversity nor any infirmity with the judgment passed by learned trial Court. According to Mr. Narwal, prosecution had failed to prove its case against the accused beyond reasonable doubt. Not only this, the alleged independent witness of the prosecution had not supported its case. The testimony of the remaining witnesses was full of inconsistencies and contradictions and the same did not inspire any confidence. According to Mr. Narwal, it stood proved from the record that no documents etc. Not only this, the alleged independent witness of the prosecution had not supported its case. The testimony of the remaining witnesses was full of inconsistencies and contradictions and the same did not inspire any confidence. According to Mr. Narwal, it stood proved from the record that no documents etc. were prepared at the spot and the entire paper work was done by the police in the Police Station. On these basis, it was submitted that as there was no merit in the present appeal, the same be dismissed. 7. We have heard learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by learned trial Court. 8. In order to prove its case, prosecution examined 11 witnesses including Rakesh Kumar, who entered the witness box as PW-1. This witness did not support the case of the prosecution and he deposed that neither any search was conducted in his presence nor any recovery was made from the accused in his presence. He was subjected to cross-examination by learned Public Prosecutor. In his cross-examination, this witness stated that Memos etc. which bore his signatures were prepared in the Police Station and his statement etc. was not recorded by the police. In fact, a perusal of his cross-examination by learned Public Prosecutor demonstrates that nothing could be elucidated from the cross-examination of this witness to prove or strengthen the case of the prosecution. On the contrary, in his cross-examination by the defence, this witness admitted that the police had visited his shop at Oachghat and had demanded scale and weight, which were given to the police by him. He further stated in his cross-examination that he was told by the police to collect the weight and measures from Police Station and thereafter, he visited the Police Station to get back his scale and weight, where he was asked to sign 4-5 papers in Police Station, which were signed by him. 9. Keeping in view this fact that the only independent witness has not corroborated the case of the prosecution, now, it is manifest upon us to closely scrutinize the testimony of other prosecution witnesses which comprises of police officials in order to satisfy ourselves as to whether learned trial Court has rightly acquitted the accused or not. 10. 9. Keeping in view this fact that the only independent witness has not corroborated the case of the prosecution, now, it is manifest upon us to closely scrutinize the testimony of other prosecution witnesses which comprises of police officials in order to satisfy ourselves as to whether learned trial Court has rightly acquitted the accused or not. 10. Besides PW-1, who has turned hostile, the witness to search and seizure is PW-2 HC Nek Ram. 11. I.O. Maheshinder Singh has entered the witness box as PW-10. He has stated that on 14.11.2009 he alongwith SHO Raj Kumar, HC Vikram Singh, HC Herdev, HHC Hem Raj, HC Nek Ram, Constable Nanak Chand and Constable Mohinder, were on patrol duty and had proceeded towards Oachghat Nauni Nandal, when at around 4.00 P.M. they reached near Nandal (Guali) in the official vehicle, two boys who were on the road who tried to run away but both of them were apprehended. One person was carrying a bag in his hand which was of green colour and on suspicion Rakesh Kumar (PW-1) was associated in the investigation who was coming on foot. This witness has further stated that he gave option to the accused who disclosed his name as Sanjay whether he wanted to give his search before Gazetted Officer or Magistrate which was his legal right, to which the accused gave in writing his option to be searched by the Investigating Officer. This witness has further deposed that thereafter officials gave their personal search to the accused and this was followed by the search of the accused. This witness has further stated that when the bag which was carried by accused Sanjay was searched in the presence of Rakesh Kumar and Nek Ram, one polythene bag was recovered and on the search of the polythene bag, black coloured substance was recovered. The said substance smelled and tasted like Charas. This witness has also stated that photographs were taken by him and recovered substance was weighed with the help of scale and weight which was found to be 300 grams of Charas. This witness has further deposed that thereafter Charas was put back in the same polythene bag and the polythene bag was put back in the green bag which was wrapped in the white cloth and the parcel was prepared and sealed with seal impression ‘A’ at 9 places. This witness has further deposed that thereafter Charas was put back in the same polythene bag and the polythene bag was put back in the green bag which was wrapped in the white cloth and the parcel was prepared and sealed with seal impression ‘A’ at 9 places. This witness further stated that seal impression was taken on the NCB form. NCB form was filled in by him. He further stated that Memo Ext.PW1/E was prepared in the presence of Rakesh Kumar and Nek Ram on which both Rakesh Kumar and Nek Chand appended their signatures. As per him, Rukka Ext. PW10/D was prepared and sent through Constable Nanak Chand to Police Station Sadar for registration of the case on the basis of which FIR Ext. PW4/A was registered. This witness has also stated that he prepared the spot map and also recorded the statements of the witnesses. He has further stated that after reaching Police Station, he handed over one sealed parcel sealed with seal impression ‘A’ containing 300 grams of Charas alongwith sample of seal ‘A’ and NCB form in triplicate to HC Sunil Kumar MHC Malkhana for keeping them in the safe custody in the Malkhana. In his cross-examination, this witness has stated that village Nandal was at a distance of about 5 K.M. from Oachghat. He also stated that they were not having any prior information regarding commission of offence. He denied the suggestion that where the accused was apprehended, the same was a busy road. He stated that few people used to pass through the road. He denied that many vehicle used to pass through the road carrying tomato boxes. He admitted that November was cash crop season of the villagers. He further stated that he cannot tell the capacity of the government vehicle in which the police party was travelling. He admitted that he had not mentioned the name of other police officials who apprehended the other accused in the statement of Nek Ram. He also stated that he himself prepared challan and special report. He expressed his ignorance as to why PW-1 was there. He admitted that PW-1 was not carrying any scrap at the relevant time. He also stated that PW-1 was having watch, money, pocket diary and purse but they did not prepare the details of articles which were found in the personal search of witness Rakesh Kumar by the accused. He expressed his ignorance as to why PW-1 was there. He admitted that PW-1 was not carrying any scrap at the relevant time. He also stated that PW-1 was having watch, money, pocket diary and purse but they did not prepare the details of articles which were found in the personal search of witness Rakesh Kumar by the accused. He also admitted the suggestion that parcels were not resealed in the Police Station while handing over them to MHC Malkhana. He also stated that he came back to Police Station from the spot at 10.45 P.M. He denied that all the Memos were prepared in the Police Station. He also denied that Ext.PW1/A was prepared at the Police Station that is why FIR No. etc. was mentioned on the top of it. 12. PW-2 HC Nek Ram stated that on 14.11.2009 he alongwith S.H.O. Raj Kumar, ASI Maheshinder Singh Singh, HC Herdev Singh, HC Mahinder Singh, HC Nanak Chand and HHC Hem Raj were on patrolling duty and at around 4.00 P.M. when they reached near Nandal (Guali) in the official vehicle which was being driven by HHC Atma Ram, two boys who were on the road tried to run away towards Damog, who were apprehended by the police party. The person who was nabbed by ASI Maheshinder Singh alongwith police official was carrying one bag green in colour in his right hand. This witness further deposed that on suspicion, ASI Maheshinder Singh gave option to the said person whether he wanted to give his search before the Magistrate or Gazetted Officer which was his legal right, but the said accused consented for his search by the ASI himself. PW-2 has further deposed that the accused gave his option to be searched by the ASI vide Memo Ext. PW1/B which was signed by him as well as witness Rakesh Kumar. He thereafter deposed that when the bag which was being carried by the accused was searched, one polythene bag was also found in the same and in the said polythene bag black brown substance was recovered which smelled and tasted like Charas. He also stated that Memo Ext.PW1/B was prepared by Maheshinder Singh on which he and Rakesh Kumar appended their signatures. He also stated that the substance was weighed by the Investigating Officer with the help of scale and weights which was in his investigation kit. He also stated that Memo Ext.PW1/B was prepared by Maheshinder Singh on which he and Rakesh Kumar appended their signatures. He also stated that the substance was weighed by the Investigating Officer with the help of scale and weights which was in his investigation kit. After weighing the same, as per this witness, Charas was again put in the same polythene bag and thereafter in the green cloth bag which was wrapped in a white cloth and parcel was sealed with seal impression ‘A’ at 9 places. He also stated that NCB form was filled in by ASI and seal after its use was given to PW-1 Rakesh Kumar. As per this witness, seizure Memo Ext.PW1/A was prepared which was signed by the accused, Rakesh Kumar and him. In his cross-examination, this witness stated that he does not know whether S.H.O. was having prior information about the suspicion of any person or not. He has admitted the suggestion that the place of occurrence is a busy road and quite a number of vehicles and villagers used to pass through the said road. This witness has also admitted the suggestion that S.H.O. did not sign even a single paper in this case at the spot. He has also stated that S.H.O. was not with them when the accused was apprehended. He admitted that in his statement recorded under Section 161 Cr.P.C. he had not stated that accused was apprehended by A.S.I. and S.H.O. He also admitted that A.S.I. did not tell the accused that who is Magistrate or Gazetted Officer and what were the powers vested in them. He admitted that in Ext. PW1/B FIR date and Section were written in his handwriting. He also admitted that Ext.PW1/C and Ext.PW1/D were signed by ASI, the same were written by ASI and on the top FIR No., date and section were written by ASI. 13. Now in the background of testimony of these witnesses we will examine the documents which were purportedly prepared at the spot at the time of search and seizure. Ext. PW1/A is the Memo of personal search which is purportedly signed by PW-1 Rakesh Kumar and HC Nek Ram alongwith the accused. On the top of this Memo, FIR No., date and provisions of ND&PS Act under which the FIR was lodged are mentioned. Similarly, Ext. Ext. PW1/A is the Memo of personal search which is purportedly signed by PW-1 Rakesh Kumar and HC Nek Ram alongwith the accused. On the top of this Memo, FIR No., date and provisions of ND&PS Act under which the FIR was lodged are mentioned. Similarly, Ext. PW1/B which is copy of consent Memo also demonstrates that on the top of the same, FIR No., date and provisions of the Section are mentioned. Similarly, Ext. PW1/C which is Memo of personal search also bears FIR No., date and provisions of the ND&PS Act. Ext. PW1/D identification Memo and Ext.PW1/E Memo regarding handing over of seal ‘A’ also find FIR No., date and provisions of the ND&PS Act written on the top of the same in one and same handwriting. 14. Now coming to the statements of PW-2 and PW-10, it is apparent from the statement of PW-10 i.e. Investigating Officer that according to him the place where the accused was apprehended was a secluded place and the road in issue was in frequent by other vehicles or public at large. However, on the contrary, PW-2 has deposed that place where the accused was apprehended was a busy road and was frequented both by vehicles and villagers. According to PW-10, out of the two persons who were apprehended, he apprehended the accused, whereas S.H.O. apprehended the other person. However, PW-2 in his cross-examination, has stated that when the accused was apprehended, S.H.O. was not with them. Not only this, as per PW-10 NCB form were filed by him, however, PW-2 has admitted that some portions of the NCB form were in his handwriting. Another important aspect of the matter is that a perusal of the NCB form Ext. PW10/L demonstrates that FIR No., date and provisions of ND&PS Act under which FIR was lodged find mentioned in the same and they are apparently in the same handwriting in which the other columns are except column No. 5. 15. Another important aspect of the matter is that a perusal of the NCB form Ext. PW10/L demonstrates that FIR No., date and provisions of ND&PS Act under which FIR was lodged find mentioned in the same and they are apparently in the same handwriting in which the other columns are except column No. 5. 15. In our considered view, these discrepancies and contradictions in the testimony of PW-2 and PW-10 coupled with the fact that PW-1 has not supported the version of the prosecution about search and seizure and preparation of the documents also shrouds suspicion in the case of prosecution and it cannot be said that prosecution was able to prove beyond reasonable doubt that the contraband was recovered from the exclusive and conscious possession of the accused in the mode and manner as the prosecution wants us to believe. 16. Another very important aspect of the matter is that neither PW-2 nor PW-10 could satisfactorily explain as to what was PW-1 doing at that time at the spot. It is not the case of the prosecution that either in the course of his businesses or otherwise presence of PW-1 Rakesh Kumar at the spot was justified. In these circumstances, keeping in view the fact that as per PW-10 the place where the accused was apprehended was a secluded place, the presence of PW-1 at the spot has not been satisfactorily proved by prosecution. In this background, testimony of PW-1 to the effect that he was not present at the spot and no recovery etc. has been effected in his presence appears to be credible. This witness has categorically stated that in fact the police had taken scale and weights from his shop and he had been asked to collect the same from Police Station and in the said course when he was in Police Station, he was called upon to sign some documents which he accordingly signed. 17. Besides this, according to the prosecution, Charas which was recovered from the accused was sealed in a parcel with seal impression ‘A’. This seal as per prosecution was handed over to PW-1. However, PW-1 has categorically refused that any seal was handed over to him. It is not disputed by the prosecution that after the parcel containing Charas was deposited at the Malkhana the same was not resealed. This seal as per prosecution was handed over to PW-1. However, PW-1 has categorically refused that any seal was handed over to him. It is not disputed by the prosecution that after the parcel containing Charas was deposited at the Malkhana the same was not resealed. Though, the factum of the same sample not having been resealed may not be fatal to the prosecution case, however, keeping in view the totality of the facts of the present case, this fact also obviously raises cloud on the case of the prosecution and creates a doubt in the mind of the Court about the veracity of the case of the prosecution. It is also matter of record that PW-10 has stated in his cross-examination that there were number of seals having impression of A and similarly, there were having number of seals impressions of B and C which statement is subsequently qualified by saying that all the Investigating Officers have different seals which do not tally with each other. This witness has also not been able to satisfactorily explain as to how FIR No. etc. was mentioned in the documents which were purportedly prepared at the spot itself. 18. A perusal of the judgment passed by learned trial Court demonstrates that issues which have been discussed by us hereinabove, have also been dealt with by learned trial Court in detail. After appreciation of material produced on record by the prosecution both ocular as well as documentary, learned trial Court has held that the prosecution had failed to prove beyond reasonable doubt that the accused was found in exclusive and conscious possession of 300 grams of Charas in a polythene bag allegedly being carried by him in his hand. 19. In our considered view, the findings which have been returned in this regard by learned trial Court are duly borne out from the records of the case. As we have already held above, the only independent witness in whose presence as per the prosecution, search and seizure was carried out, has not supported the case of the prosecution. In fact, as per the said witness, no search and seizure was ever carried out at the spot. His signatures were obtained on certain papers by the police in Police Station. Testimony of PW-2 and PW-10 does not inspires confidence. In fact, as per the said witness, no search and seizure was ever carried out at the spot. His signatures were obtained on certain papers by the police in Police Station. Testimony of PW-2 and PW-10 does not inspires confidence. There are many inconsistencies and contradictions in their versions which create doubt in the mode and manner in which search and seizure was carried out by the prosecution. In these circumstances, when doubt is created about the mode and manner in which search and seizure was carried out then obviously the benefit has to go to the accused. It is also doubtful as to whether the documents, which as per the prosecution in fact were prepared at the spot, were actually prepared at the spot or not. Even the sealed parcel which was deposited in the Malkhana containing the alleged contraband was not resealed. All these factors when taken up together shroud the case of the prosecution with suspicion and in our considered view, the material so produced on record by the prosecution cannot be made basis of conviction of the accused. 20. However, before parting with the judgment we deem it pertinent to mention that the findings which have been returned by learned trial Court with regard to noncompliance of the provisions of Section 50 of the ND&PS Act are not sustainable in law. In the present case, the alleged contraband was not recovered from the “person” of the accused. The contraband according to the prosecution was recovered from the bag which was being carried by the accused. In this background, the findings returned by learned trial Court to the effect that there is violation of the provisions of Section 50 of the ND&PS Act cannot be sustained. The judgments relied upon by learned trial Court while arriving at the said conclusion had no applicability in the facts of the present case. Admittedly, the recovery of alleged contraband was made from the person of the accused. Three Judges Bench of the Hon’ble Supreme Court in State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350 , has held that a bag, briefcase or any such article or container under no circumstances can be treated as body of human being and they cannot even remotely be treated as a part of human being. Three Judges Bench of the Hon’ble Supreme Court in State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350 , has held that a bag, briefcase or any such article or container under no circumstances can be treated as body of human being and they cannot even remotely be treated as a part of human being. On these basis, it was held by Hon’ble Supreme Court that it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act. The relevant Paras of the said judgment are quoted herein below:- “11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act. 12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free. 13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh and para 12 of the Report is being reproduced below: (SCC p.190) "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. On its plain reading, Section 50 would come into play only in the case of a 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 a 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." The Bench recorded its conclusion in para 57 of the Report and sub-paras (1), (2), (3) and (6) are being reproduced below: (SCC pp.208-10) “57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. * * * (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 14. The above quoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying. 27. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non-compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for fresh hearing of the appeal.” 21. Accordingly, while disagreeing with the findings so returned by learned trial Court, with regard to the applicability of Section 50 of the ND&PS Act, we uphold the findings of acquittal returned by learned trial Court and as there is no merit in the present appeal, the same is dismissed. Bail bonds, if any, furnished by the accused are discharged.