JUDGMENT : Md. Mumtaz Khan, J. 1. This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated March 19, 2010 passed by the Ld. Judge, Special Court (under NDPS Act), 2nd Court, Jalpaiguri in NDPS Case No. 31 of 2007. By virtue of the impugned judgment appellant was found guilty of the commission of the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1995 (hereinafter referred to as NDPS Act) and was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. one lakh in default to suffer imprisonment for six months more with a direction for set off. 2. The prosecution, in brief, is as follows:- 3. On August 16, 2007 at 0.45 hours while P.W.5 was on night patrolling duty along with P.W.2 and P.W.6 he received a secret source information that one person was proceeding towards NJP station through Iskon Mandir road side carrying a large quantity of ganja on his bicycle. He then apprised the matter to the officer-in-charge Bhaktinagar P.S. and after getting permission left to work out the said information. P.W.1 and A.S.I. Uday Chakraborty also came there along with papers, carbon, pen sealing wax, envelop and other accessories as directed by the officer in charge of that P.S. and they then ambush there at about 01.00 hrs. At about 01.15 hours they saw the appellant coming from Iskon side road riding on a bicycle with a large gunny bag on the back carrier. They detained him and on interrogation he admitted that the gunny bag contained 21 kgs ganja and failed to show any legal document in support of possession of such huge quantity of contraband articles. 3. He was given option of being searched either in presence of any Magistrate or senior police officer and after getting his consent in writing to be searched in presence of senior police officer C.I. Sadar, Jalpaiguri was informed. At 02.05 hours P.W.3 came there and he personally interrogated the appellant in presence of two independent witnesses Sudip Barai (P.W.7) and Bablu Dhakal and on being confirmed he instructed P.W.5 to open the bag. P.W.5 then checked the nylon gunny bag in presence of the witnesses near Hari Mandir and found ganja inside that bag which on weighing was found 21 gms. of ganja. P.W.5 then checked the nylon gunny bag in presence of the witnesses near Hari Mandir and found ganja inside that bag which on weighing was found 21 gms. of ganja. P.W.3 then seized the nylon gunny bag containing 21 kg of ganja, one nylon rope, one old and used black colour bicycle used for transportation of that contraband article, one nokia mobile handset as also 50 grms of ganja taken as sample by preparing a seizure list and also sealed and packed the sample ganja in presence of the witnesses, appellant and P.W.3 and thereafter appellant was apprehended and was brought at the Bhaktinagar P.S. where a written complaint (Exbt. 2/1) was lodged by P.W.5. 4. On the basis of the above written compliant of P.W.5, Bhaktinagar P.S. Case No. 533 dated August 16, 2007 was started by P.W.4 against the appellant for the commission of the offence punishable under Section 20(b)(ii)(C) of the NDPS Act and endorsed the case to P.W.8 for investigation who duly investigated the same and on completion of investigation submitted charge sheet against the appellant under Section 20(b)(ii)(C) of the NDPS Act. 5. Charge was framed on July 4, 2008 under Section 20(b)(ii)(C) of the NDPS Act and after the appellant pleaded not guilty to the charge, trial commenced. 6. Prosecution examined 8 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellant under Section 313 of the Code of Criminal Procedure the learned court below passed the impugned judgment. 7. It is submitted by Ms. Meenal Sinha, learned advocate appearing on behalf of the appellant that the impugned judgment, order of conviction and sentence cannot be sustained in law for non compliance of the provisions of Sections 42 as also 50 of the NDPS Act, non production of GDE in connection of which search and seizure was made and the appellant was apprehended, failure to prove search and seizure of the contraband articles, variation as to the weight of the sample in between the statement of P.W.5 and the report, trust worthiness of the evidence of P.W.7, non production of the alamat during trial amongst other. 8. 8. According to Ms Meenal Sinha, prosecution has failed to prove charge against the appellant beyond all reasonable doubt which the learned court below did not taken into consideration while passing the impugned judgment, order of conviction and sentence. 9. Reliance is placed by Ms Meenal Sinha on the decisions of Jitendra and Another Vs. State of M.P. reported in (2004)10 Supreme Court Cases 562, Dilip and Another Vs. State of M.P. reported in (2007) 1 Supreme Court Cases 450 and Noor Aga Vs. State of Punjab and another reported in (2008) 16 Supreme Court Cases 417 in support of her submissions. 10. Mr. Sanjoy Bardhan, learned advocate representing the state submitted that recovery of the contraband articles was made from the possession of the appellant following the proper procedure and there was no illegality or irregularity in the same. Moreover, mere procedural illegality in search and seizure will not affect the prosecution case. 11. Mr. Bardhan also submitted that seizure of the contraband article was proved by P.W.1, P.W.3, P.W.5, P.W.7 and P.W.8 and none examination of the one of the independent witness is not fatal for the prosecution case as it was the discretion of the prosecution whom to examine. 12. According to Mr. Bardhan, provision of Section 42 or Section 50 of the NDPS Act are not applicable in this instant case as the search was made at the public place and the contraband article was recovered from the gunny bag which was carried by the appellant and there was no search of the person of the appellant. 13. According to Mr. Bardhan, variation in the weight of the contraband article in between the seizure list and the analyst report is a minor one not going to the route of the case. 14. According to Mr. Bardhan, case against the appellant was proved beyond doubt and there was no illegality or irregularity in the impugned judgment, order of conviction and sentence passed by the learned court below. 15. Reliance is place by Mr. Bardhan on the decisions of Baldev Singh Vs. State of Haryana reported in 2015 SAR (Criminal) 1218 Supreme Court, Mahiman Singh Vs. State of Uttrakhand reported in 2016 SAR (Criminal) 861 Supreme Court, Kulwinder Singh and another Vs. State of Punjab reported in 2015 SAR (Criminal) 597 Supreme Court, Girish Raghunath Mehta Vs. 15. Reliance is place by Mr. Bardhan on the decisions of Baldev Singh Vs. State of Haryana reported in 2015 SAR (Criminal) 1218 Supreme Court, Mahiman Singh Vs. State of Uttrakhand reported in 2016 SAR (Criminal) 861 Supreme Court, Kulwinder Singh and another Vs. State of Punjab reported in 2015 SAR (Criminal) 597 Supreme Court, Girish Raghunath Mehta Vs. Inspector of Customs and another reported in 2016 CrLJ (Supreme Court), Khet Singh Vs. Union of India reported in (2002) 4 Supreme Court Cases 380 and State through Intelligence Officers, Narcotics Control Bureau Vs. Mushtaq Ahmed etc. reported in 2015 CrLJ 4935 (Supreme Court) in support of his submissions. 16. We have given our thoughtful consideration to the submissions made by the learned counsels appearing for the respective parties and gone through the evidence of the prosecution witnesses, the materials on record including the written complaint, namely FIR, seizure list, chemical examination report, charge sheet, charges framed amongst other materials for examining the propriety of the impugned judgment, order of conviction and sentence. 17. The learned Court below took into consideration the evidences of P.W. 5, (complainant), P.W.3, (Gazetted officer), P.W.1, P.W.2 and P.W.7, the witnesses to the search and seizure of 'ganja' as also the chemical analysis report(Ext.7) to arrive at the conclusion that prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt. 18. With regard to the submission of the learned advocate for the appellant in non compliance of the provisions of Section 42 as well as section 50 of the NDPS Act, we find from the evidence on record that search was made at a public place and 'ganja' in question was recovered and seized from the bag only carried on a bicycle. So provisions of section 43 of the Narcotic Drugs and Psychotropic Substance Act will apply and not section 42 of the said Act and as such there was no requirement of the officer conducting search to record the grounds of his belief as contemplated by the proviso to section 42. 19. Similarly section 50 of Narcotic Drugs and Psychotropic Substance Act applies in case of a personal search of a person and it does not extend to search of a bag. 19. Similarly section 50 of Narcotic Drugs and Psychotropic Substance Act applies in case of a personal search of a person and it does not extend to search of a bag. The scope and ambit of section 50 of the Act was examined in considerable detail by the Constitution Bench of the Hon'ble Apex Court in State of Punjab vs. Baldev Singh reported in JT 1999(4)SC 595, (1999) 6 SCC 391 and para 12 of the reports is being reproduced below: “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. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of 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 requirement of Section 50 of the Act are not attracted”. 20. The Bench recorded its conclusion in para 57 of the report and sub paras (1), (2), (3), (6) and (7) are being reproduce below: “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 concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person 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 concerned person 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.” 21. The same view has been reiterated in several decisions of the Hon'ble Apex Court. 22. The instant case relates to recovery and seizure of the contraband article (Ganja) from the bag only found in possession of the appellant. P.W.5 has clearly stated that he searched the bag and recovered the contraband articles (Ganja) there from. This also found corroboration from other prosecution witnesses. 22. The instant case relates to recovery and seizure of the contraband article (Ganja) from the bag only found in possession of the appellant. P.W.5 has clearly stated that he searched the bag and recovered the contraband articles (Ganja) there from. This also found corroboration from other prosecution witnesses. Only P.W.2 at one place stated that person of the accused was searched by the officers but he too clearly stated that officers put their hands inside the bag. Admittedly no contraband articles were seized from the person of the appellant. 23. Therefore, after due consideration of the facts and circumstances involved in this appeal following the well settled cardinal rules, we hold that section 50 of the NDPS Act did not apply to the facts of this case, where on search of the bag, Ganja was recovered. Above being the position, the contention regarding noncompliance with section 50 of the Act is without any substance. Therefore, there is no scope to interfere with the impugned judgment on the above grounds. With regard to the anomaly in the weight of the sample of the seized contraband article taken and sent for chemical analysis as submitted by the learned counsel for the appellant, we find that though P.W.5 had deposed that 25gms. of ganja was taken as sample but the written complaint(Ext2/1), seizure list(Ext.3) as also the challan (Ext.6) show the weight of the sample as 50gms. which also found corroboration from P.W.3. Similarly the Analysis report, Exhibit.7, which described the samples sent for chemical examination as 60 gms. but the same may be due to standard of weighing scale, the weight and/or the weight of the packet in which it was kept. In view of the above, such anomaly in weight of the sample as pointed out by the learned counsel for the appellant, was not of much significance. We are also of the view that such discrepancy will not affect the merit of the case. 24. With regard to the search and seizure of the contraband article, it appears that seizure of the alleged narcotic substance (ganja) was shown to have made on August 16, 2007 at about 02.25 hrs. at Iskan Mandi road side in presence of reported independent witnesses Bablu Dhakal and P.W.7 besides P.W.3, the Circle Inspector of Police in connection with this case as also Bhaktinagar P.S. G.D.E. No.476 dated August15, 2007 (Ext.3). at Iskan Mandi road side in presence of reported independent witnesses Bablu Dhakal and P.W.7 besides P.W.3, the Circle Inspector of Police in connection with this case as also Bhaktinagar P.S. G.D.E. No.476 dated August15, 2007 (Ext.3). Ext.4, the arrest memo, also shows that appellant was arrested on August 16, 2007 in connection with Bhaktinagar P.S. G.D.E. No.476 dated August15, 2007. Appellant had clearly stated during his examination under section 313 of the Code of Criminal Procedure in reply to question no.7 that he was falsely detained on August15, 2007 for dacoity but subsequently he came to learn that he was tagged in a ganja case. He also stated in reply to question no.9 that in the year 2001 he was detained in Siliguri jail along with Sudip Barai (P.W.7) who now drives police vehicle of Bhaktinagar P.S. and being influenced by police he stated falsely against him. P.W.7 had also admitted that once he was detained in Siliguri Correctional Home in connection with a theft case. P.W.5 had also admitted that he informed the matter to the officer-in-charge and the same was recorded in the G.D.E. of the P.S. Surprisingly, G.D.E. No.476 dated August15, 2007 in connection with which appellant was arrested and seizure was made had not been produced by the prosecution nor witness Bablu Dhakal was examined for the reason best known to the prosecution. All these cast a shadow of doubt with regard to the apprehension of the appellant with ganja in connection with this case on the relevant date and time from the alleged place of occurrence. 25. There is no denying fact that prosecution need not examine all the witnesses cited by them and it is for the prosecution to decide as to how many witnesses they consider it proper to examine to prove their case against the accused. But it is the duty of the court to see whether the evidence adduced by the prosecution was sufficient to warrant conviction of the appellant. In the instant case, as it appears, a shadow of doubt had been cast about the trustworthiness of the evidence of P.W.7 and presence of the appellant at the alleged place of occurrence on the relevant date and time and his arrest in connection with this case, the evidence of the other seizure witness was very much vital. In the instant case, as it appears, a shadow of doubt had been cast about the trustworthiness of the evidence of P.W.7 and presence of the appellant at the alleged place of occurrence on the relevant date and time and his arrest in connection with this case, the evidence of the other seizure witness was very much vital. P.W.1 and P.W.2, the police personnel, who claimed to to be the witnesses to the alleged recovery and seizure of the contraband articles from the possession of the appellant were not shown the seized articles during trial for their identification. Even no such seize article was produced before P.W.3, the Gazetted officer or the investigating officer, P.W.8 for their identification during trial. P.W.5, who made the search and seizure of the bag and reportedly recovered the contraband articles from the possession of the appellant admitted during trial that there was no label on the gunny bag containing his signatures or any signatures of the Circle Inspector, witnesses or the appellant. There was even no such explanation to that effect from the side of the prosecution. According to P.W.5 as also P.W.1 search was made after arrival of the Circle Inspector whereas according to P.W.2 when search was made by P.W.5 only ASI Raj Kumar Roy(P.W.1) and ASI Uday Chakraborty were present and no other officers were present. ASI Uday Chakraborty was also not examined by the prosecution. P.W.6 who was also on night petrol duty along with P.W.5 on the relevant night did not support the prosecution case for which he was declared hostile and was cross-examined by the prosecution but to no effect. In such circumstances, non examination of other independent seizure witness was fatal for the prosecution case. Moreover, save and except the complainant none of the witnesses has said that accused person also signed on the seizure list nor any signature of the accused/appellant on the seizure list was proved by the prosecution. According to P.W.8, he received the sample from P.S. Malkhana but neither the Malkhana register was seized and produced during trial nor Malkhana-in-charge was examined to prove that those were properly sealed, packed and labeled when received in Malkhana. There is also no explanation to that effect. 26. According to P.W.8, he received the sample from P.S. Malkhana but neither the Malkhana register was seized and produced during trial nor Malkhana-in-charge was examined to prove that those were properly sealed, packed and labeled when received in Malkhana. There is also no explanation to that effect. 26. Thus we find from the above that the procedure relating to search, seizure, seal and label of the contraband articles had also not been properly adhered to which render the recovery of the illicit article suspect and vitiate the conviction and sentence. The learned trial court did not take into consideration the above facts and circumstances. 27. Therefore, considering the above circumstances we have no hesitation to conclude that the case against the appellant has not been proved beyond all reasonable doubt and as such appellant is entitled to get the benefit of doubt. 28. For the aforesaid reason, the appeal deserves to be allowed and is accordingly allowed. The order of conviction and sentence passed against the appellant by the learned Judge, Special Court under NDPS Act, 2nd Court, Jalpaiguri in NDPS Case. No. 31 of 2007 are, therefore, quashed and set aside. Appellant be released from custody forthwith, if not, detained in connection with any other case. 29. Copy of this judgment along with the lower court records be sent down to the trial court immediately by special Messenger for information and taking necessary action. 30. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.