TARLOK SINGH CHAUHAN, J : This appeal under Section 378 of the Code of Criminal Procedure (for short ‘Code’) by the State assailing the acquittal order passed by learned Special Judge, Chamba Division, Chamba, H.P. in Sessions Trial No.34 of 2009 held under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act). 2. The prosecution story which emerges from the record is that on 10.7.2009 H.C. Kartar Singh (PW-8) alongwith H.C. Subhash Chand, HC Roop Singh, Constable Anuj Kumar (PW-1), Constable Sanjay Kumar 9PW-3) and LHC Uttam Chand were present at Bonkhri Morh at about 12.05 PM and Sadhu Ram (PW-2) and one Pawan Kumar met them at that place. The respondent came there on foot and on seeing the police party, tried to run back but was nabbed on suspicion. The option was given to the respondent vide memo Ext.PW-1/A and the respondent opted to give his search to the police and thereafter all the police officials and two independent witnesses gave their personal search to the respondent vide memo Ext.PW-1/B, but nothing incriminating was found. 3. The further case of the prosecution is that the personal search of the respondent was conducted and one Polythene envelope of black colour was recovered which was concealed by the respondent under his belt and was tied around his waist and on checking it was found to be containing Charas which on weighing turned to be 700 grams. Two samples each weighing 25 grams were separated from the Charas so recovered, which were put in two separate parcels and each of the parcel was sealed with three seals of impression ‘A’, whereas the residue charas was put in the same envelope and thereafter sealed in a separate parcel with five seals of the same impression and all the parcels were taken into possession vide memo Ext.PW-1/D. The specimen of the seal was taken separately which is Ext.PW-1/C. 4. The NCB form Ext.PW-8/A was filled in and seal impression was also affixed on the NCB form and the seal after use was handed over to Sadhu Ram (PW-2). Rukka Ext.PW-8/B was prepared which was sent to Police Station, Dalhousie through Constable Sanjay Kumar (PW-3) and its copy Ext.PW-7/A was sent to S.P., Chamba for information through LHC Uttam Chand. The NCB form Ext.PW-8/A was filled in and seal impression was also affixed on the NCB form and the seal after use was handed over to Sadhu Ram (PW-2). Rukka Ext.PW-8/B was prepared which was sent to Police Station, Dalhousie through Constable Sanjay Kumar (PW-3) and its copy Ext.PW-7/A was sent to S.P., Chamba for information through LHC Uttam Chand. On receipt of Rukka, FIR Ext.PW-4/A came to be recorded at Police Station, Dalhousie by HC Bhajan Singh (PW-4) who also made an endorsement Ext.PW-4/B on the rukka. The site plan Ext.PW-8/C was prepared by HC Kartar Singh and the respondent was arrested vide memo Ext.PW-1/F. 5. It is also the case of the prosecution that on reaching the Police Station, HC Kartar Singh, produced the case property alongwith sample seal and NCB forms before HC Bhajan Singh (PW-4) who was officiating as SHO in the presence of Constable Rajesh Kumar (PW-6) and HC Bhajan Singh released all the three sealed parcels by affixing 3 seals of impression ‘J’ on each parcel and specimen of the seal used Ext.PW-4/C was taken separately and seal impression was also affixed on the NCB form regarding which reseal memo Ext.PW-4/D was prepared. The case property was deposited in the Malkhana alongwith sample seals and NCB forms regarding which entry was made in the Malkhana register, the extract of which is Ext.PW-4/E. On 12.7.2009 vide RC No. 106/2009 copy of which is Ext.PW-4/F, all the parcels alongwith NCB forms and specimen seal impressions were forwarded to FSL, Junga through HHC Kamal Kishore (PW-10) for chemical analysis and as per the report of the Chemical Examiner Ext. PX, the entire mass of the three parcels was found to be extract of cannabis and samples of Charas. Special report Ext.PW-7/B was prepared and was sent to S.P., Chamba. The statements of the witnesses were recorded by HC Kartar Singh as per their versions. 6. After the completion of investigation, the challan was presented in the Court of learned Special Judge, Chamba, who framed the charge under Section 20 of the Act, to which the appellant pleaded not guilty and claimed trial. 7. The prosecution examined as many as ten witnesses in support of its case and closed its evidence. 6. After the completion of investigation, the challan was presented in the Court of learned Special Judge, Chamba, who framed the charge under Section 20 of the Act, to which the appellant pleaded not guilty and claimed trial. 7. The prosecution examined as many as ten witnesses in support of its case and closed its evidence. The statement of respondent under Section 313 Cr.P.C. was recorded in which he denied the case of the prosecution and claimed that he is innocent and has been falsely implicated in this case and no evidence in defence was adduced by the respondent. 8. The learned Special Judge, after recording the evidence and evaluating the same, acquitted the respondent particularly on the ground that non-compliance of Section 50 of the NDPS Act. We have heard learned counsel for the parties and have gone through the records of the case. 9. It is not in dispute that the personal search of the respondent was conducted by the Investigating Agency and the respondent was also informed that he could have informed that his search conducted before the Magistrate, a Gazetted Officer or the Police, upon which the respondent expressed his opinion to be searched by the police party. This would clearly be evident from the consent form (fard Sehmati), which reads thus: ^^Fkkuk MygkSth ftyk pack] Qnz lgefr U/S 50 ND&PS Act. fuEufyf[kr xokgksa ds lkeus vkt fnukad 10-7-09 dks e; ,plh djrkj flag No.I/O SIU, pack vki v;wc eqgEen iq= lQh eqgEen tkr eqLyeku irk bNyksbZ Fkkuk dhgj rglhy lywuh ftyk pack dks lwfpr djrk gwa fd vki ds ikl eknd nzO; gksus dk 'kd gS] vkidh tek ryk'kh yh tkuh gS] vki fyf[kr rkSj ij cryk,a dh vki viuh tkek ryk'kh fdlh eftLVªsV] jktif=r vf/kdkjh ;k iqfyl ds ikl nsuk pkgrs gS] ftl ij v;wc eqgEen mijksDr us t+kfgj fd;k fd ;g viuh tkek ryk'kh ekSdk ij ekStwn iqfyl dks nsuk pkgrk gS blus t+kfgj fd;k fd ;g fy[kuk i<+uk ugha tkurk gS] ftls i<+ dj lquk;k x;k] ftlus xokgksa ds lkeus lgefr izdV djrs gq, viuk ck;ka vaxwBk 'kiFk fd;k gS^^ 10. It is more than settled that in case of personal search, the provisions of Section 50 are duly attracted. (State of H.P. vs. Pawan Kumar, 2005 (4) SCC 350 ). It is more than settled that in case of personal search, the provisions of Section 50 are duly attracted. (State of H.P. vs. Pawan Kumar, 2005 (4) SCC 350 ). Therefore, the moot question that arises for further consideration is as to whether the requirement of Section 50 have been complied with by the prosecution in the instant case. 11. Since the only question pertains to compliance of Section 50 of the NDPA Act, it is useful to refer to the same and reads as under: “50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised 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 authorised 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 (2 of 1974). (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 seventy-two hours send a copy thereof to his immediate official superior.” 12. (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 seventy-two hours send a copy thereof to his immediate official superior.” 12. Notably, there was a divergence of opinion between different Benches of the Hon’ble Supreme Court with regard to the ambit and scope of the aforesaid Section and, in particular with regard to the admissibility of the evidence collected by an Investigating Officer during search and seizure conducted in violation of the provisions of Section 50. The legal position initially came to be cleared by the Hon’ble Constitution Bench of the Hon’ble Supreme Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 . After considering the mandate of law as provided under Section 50 of the NDPS Act and various earlier decisions on the point it was concluded as under: “57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised 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. (4) That there is indeed need to protect society from criminals. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (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. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) xxx xxxx (10) xxx xxxx” 13. Thus, in view of the aforesaid exposition of law there is no room for any doubt that what the officer concerned is required to do in compliance to the mandate of Section 50 is to convey about the choice of the accused. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word ‘right’ at relevant places in the decision of Baldev Singh case (supra) seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the suspect/accused at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it. 14. 14. However, it appears that even after the Constitution Bench decision in Baldev Singh’s case (supra), the legal position again became hazy as some of the Hon’ble Benches used the expression of “substantial compliance” vis-à-vis the requirement of Section 50 and ultimately the matter once again reached the Hon’ble Constitution Bench of the Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609 wherein the question that was posed before it was whether Section 50 of the NDPS Act casts a duty on the empowered officer to ‘inform’ the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance within the mandate of the Section 50? 15. After taking into consideration all the earlier decisions, the later Constitution Bench arrived at the following conclusions: “28. We shall now deal with the two decisions, referred to in the referral order, wherein “substantial compliance” with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey vs. State of M.P. (2004) 2 SCC 56 , a two Judge Bench of this Court culled out the ratio of Baldev Singh case on the issue before us, as follows: (Prabha Shankar Dubey case, SCC p. 64, para 11) ‘11. … What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. … What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word ‘right’ at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the ‘suspect’ at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it.’ However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez, the Court chose to follow the views echoed in the latter case, wherein it was held that the searching officer's information to the suspect to the effect that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate” was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression “substantial compliance” in the following words: (Prabha Shankar Dubey case, SCC p. 64, para 12) ‘12. The use of the expression ‘substantial compliance’ was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations.’ It is manifest from the afore-extracted paragraph that Joseph Fernandez does not notice the ratio of Baldev Singh and in Prabha Shankar Dubey, Joseph Fernandez is followed ignoring the dictum laid down in Baldev Singh case. 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 30. As observed in Presidential Poll, In re (1974) 2 SCC 33 : (SCC p. 49, para 13) ‘13. … It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. ‘The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.’ 31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.” 16. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.” 16. From the observations made by the Hon’ble Supreme Court as extracted above, it is abundantly clear that the Hon’ble Constitution Bench has not approved the concept of “substantial compliance”. 17. The law laid down by the Hon’ble Supreme Court has been consistently followed by this Court in Ashok Kumar vs. State of H.P. 2009 (2) SLC, 162, State of H.P. vs. Harish Thakur, 2010 (2) Latest HLJ 1472, State of H.P. vs. Viney Kumar alias Binu (2013) 1 SLC, 515, State of H.P. vs. Vijay Singh alias Rinku (2014) 3 SLC 1248, State of H.P. vs. Vijay Kumar (2015) 3 SLC 1700 and State of H.P. vs. Virender Singh (2016) 4 ILR (HP) 381. 18. Therefore, once the provision of Section 50 of the Act has been proved to have been not complied with, then no fault can be found with the judgment and acquittal passed by learned Special Judge, Chamba. It is well settled that acquittal leads to presumption of innocence in favour of the accused and to dislodge the same, the onus heavily relied upon the prosecution. Having considered the entire material on record, more particularly Ex.PW-1/A, we are of the considered view that the prosecution has failed to establish the essential ingredients so required to constitute the charged offence. 19. The findings recorded by the learned trial court are based on correct appreciation of the facts and the law and do not warrant any interference. There are no compelling circumstances which may call for interference as the reasons given by the learned court below are cogent and convincing; and based on records of the case. 20. For the forging reasons, the appeal is sans merit and is accordingly dismissed. Pending applications, if any also stands dismissed. Bail bonds are discharged.