JUDGMENT : Lok Pal Singh, J. 1. This appeal is directed against the judgment and order dated 10.06.2003, passed by passed by Additional Sessions Judge/F.T.C. Kashipur, District Udham Singh Nagar, in Special Sessions Trial No.61 of 2001, whereby said court has convicted the accused-appellant Balwinder Singh @ Tete under section 15-B of Narcotic Drugs & Psychotropics Substances Act, 9/2001 (for short N.D.P.S. Act), and sentenced him to rigorous imprisonment for a period of 3 years and fine of Rs.10,000/- in default of payment of which the convict has to undergo rigorous imprisonment for a further period of 2 year. 2. Prosecution story in brief is that on 20.01.2001 at about 11:45 am, P.W.1 Sub-Inspector Shyam Narayan Mishra of Police Station Bazpur, went from the police station to serve warrant and to recover penalty from one Paramjeet. When he reached at P.S. Beriya, Head Constable Rohtash Singh (P.W.2), Constable Umed Singh, Constable Ramladet and Constable Vijaypal Singh accompanied him and they headed towards the house of Paramjeet at Village Beriya Daulat but Paramjeet did not meet in his house. Thereafter, the police party for some other official work headed towards Village Mudiya Hattu via Boria Market and as soon as they reached at Tota Boria Road Tiraha near Ganna Centre, they saw the accused/appellant having bag on his back, who upon seeing the police personnel, tried to run away. Suspecting the accused, the police party caught him and enquired from him, upon which, he told that he is having Poppy husk ( vQhe ds MksMs dk pwjk ). Accused/appellant was told that possession of poppy husk comes under the provisions of N.D.P.S. Act. The party further told the accused that he is at liberty to get his search done before Gazetted Officer or Magistrate. However, the accused on finding himself caught by the policemen told that the police party may conduct his search and a consent letter (Ext.A1) was prepared on the spot, which was signed by the accused. On being asked, the accused disclosed his name as Balvinder Singh @ Tete S/o Kehar Singh. Thereafter, the policemen made search of person of the accused and the accused/appellant was found in possession of 7 kg of Poppy husk. He failed to show license to carry the psychotropic substance. On being asked, the accused disclosed his name as Balvinder Singh @ Tete S/o Kehar Singh. Thereafter, the policemen made search of person of the accused and the accused/appellant was found in possession of 7 kg of Poppy husk. He failed to show license to carry the psychotropic substance. After being told to the accused that he has committed an offence punishable under Section 18/20 of N.D.P.S. Act, accused/appellant was arrested by the policemen. From the recovered item, 1/2 kg was kept separately for chemical examination at the spot and both the items were separately sealed by the police. FIR was lodged at Police Station Bazpur Kashipur, District Udham Singh Nagar, which was registered as case crime no. 145 of 2001. Investigation was taken up by P.W.3 Samarpal Singh, Sub Inspector. During the course of investigation, the I.O. recorded the statement of witnesses, prepared the site-plan, send the sample to Forensic Science Laboratory, Agra, for examination and after receiving report from the Laboratory, submitted charge sheet (Ext.A6) against the accused/appellant Balwinder Singh @ Tete. 3. Learned Sessions Judge, on receipt of the charge sheet, appears to have given necessary copies to the accused as required under section 207 of Cr.P.C. and transferred the case to the court of Ist Additional Sessions Judge, Kashipur for disposal. After hearing the parties, on 28.01.2002, charge of offence punishable under section 18 of NDPS Act was framed against the accused/appellant, to which he pleaded not guilty and claimed to be tried. 4. In order to prove its case, prosecution got examined P.W.1 Sub-Inspector S.N. Mishra (complainant), P.W.2 Head Constable Rohtash Singh (eye-witness of the recovery), P.W.3 Samarpal Singh (Investigating Officer) and P.W.4 Constable Rajesh Singh. Oral and documentary evidence was put to the accused under section 313 Cr.P.C. in the form of questions, in reply to which the accused pleaded that the police arrested him from his house and has falsely been implicated in the case. However, he did not adduce any evidence in defence. The trial court, after hearing the parties, convicted and sentenced the accused/appellant as above. Hence, this criminal appeal. 5. P.W.1 Sub-Inspector S.N. Mishra has reiterated the contents of the F.I.R. in his statement. 6. P.W.2 Head Constable Rohtash Singh has supported the prosecution case and has corroborated the statement of P.W.1 S.N. Mishra. He has proved Ext.A1 and Ext.A3. 7. The trial court, after hearing the parties, convicted and sentenced the accused/appellant as above. Hence, this criminal appeal. 5. P.W.1 Sub-Inspector S.N. Mishra has reiterated the contents of the F.I.R. in his statement. 6. P.W.2 Head Constable Rohtash Singh has supported the prosecution case and has corroborated the statement of P.W.1 S.N. Mishra. He has proved Ext.A1 and Ext.A3. 7. P.W.3 S.I. Sumarpal Singh has stated that on 29.01.2001 he started investigation of the case. During the course of investigation, he recorded the statements of witnesses, prepared the site-plan and sent the sample in the court of Additional Sessions Judge, Kashipur, through P.W.4 Constable Rajesh Singh. He further stated that in the letter of A.D.J., it is mentioned that as the sample was not sealed, it was sealed by A.C.J.M. Kashipur. On 9.2.2001, the sample was submitted by P.W.4 Constable Rajesh Singh at Forensic Science Laboratory, Agra sent for chemical examination. Report dated 30.4.2001 was received where after he submitted charge-sheet against the accused/appellant. In cross-examination, he has stated that there is no entry in the G.D. regarding as to when he saw the recovered item during the course of investigation. He further stated that there is no date mention in Ext.A5. 8. P.W.4 Constable Rajesh Singh has proved the factum of submitting the sample at Forensic Science Laboratory, Agra, by order of the court. 9. Mr. Lalit Sharma, learned counsel for the appellant along with Mrs. Meena Bisht, learned Amicus Curiae has vehemently argued that in the present case there is no compliance of mandatory provision of Section 50 of NDPS Act and, in absence thereof, entire trial is vitiated. They also submitted that the intimation/information regarding search, seizure and arrest of accused was not sent to the Senior Officers within next 48 hours. Thus, there was no compliance of Section 57 of NDPS Act on the part of the search party. It is also submitted that there is no public or independent witness of the alleged recovery; all the witnesses are police officials which are interested witnesses. 10. Per contra, learned A.G.A. for the State has supported the impugned judgment and order passed by the trial court and has submitted that the trial court has passed the judgment, after proper appraisal of evidence, leaving no scope of interference for this Court. 10. Per contra, learned A.G.A. for the State has supported the impugned judgment and order passed by the trial court and has submitted that the trial court has passed the judgment, after proper appraisal of evidence, leaving no scope of interference for this Court. He also submitted that the appellant was informed about his legal right of being searched before a Magistrate or a Gazetted Officer. He drew attention of this Court to the recovery memo prepared by the police party, which is Ext.A2 and submitted that it is mentioned in the memo that the appellant was asked to give his search before a Magistrate or the Gazetted Officer but he denied for the same. 11. I have heard learned counsel for the parties and perused the entire record. 12. Before any further discussion, Section 50 and 57 of N.D.P.S. Act, would be relevant to mention here, which is reproduced hereunder: “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. 2[(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 subsection (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.] 57. Report of arrest and seizure.—Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 13. A perusal of recovery memo would reveal that the police party told the accused that he is at liberty to get his search done before Gazetted Officer or Magistrate, however, the accused on finding himself caught by the policemen told that the police party may conduct his search. In my firm opinion, the appellant was not made aware about his legal right of getting searched before the Magistrate or the Gazetted Officer. Mere mentioning the words in the recovery memo that the accused was asked to give his search before Magistrate or Gazetted Officer, is not a sufficient compliance. 14. The Hon’ble Apex Court in the case of Ashok Kumar Sharma vs. State of Rajasthan reported in 2013 (2) SCC 67 has held that since the accused-appellant was not informed about her legal right to be searched before the Magistrate or the Gazetted Officer, thus there is no compliance of Section 50 of NDPS Act. 15. The Hon’ble Apex Court in the case of Vijay Singh Chandubha Jadeja vs State of Gujarat reported in 2011 (1) SCC 609 wherein the question was referred to five Judges Bench of Hon’ble Apex Court in regard to the mandatory ingredients of Section 50 of the NDPS Act. The Five Judges Bench of Hon’ble Apex Court has answered the question referred in paragraph No. 32 of the judgment in affirmative, which is extracted herein under: “32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.” 16. The Hon’ble Apex Court in the case of Beckodan Abdul Rahiman vs State of Kerala reported in 2002 (4) SCC 229 has held that compliance of Section 42 and 50 are mandatory. Paragraph No. 6 is relevant which is extracted hereunder: “6. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment.” 17. The next argument of learned counsel for the appellant was that the information was not sent to the Senior Officers within 48 hours about the search, seizure and arrest of the accused appellant. I find force in this argument. Section 57 of N.D.P.S. Act requires that whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours next after such arrest or seizure, make a full report of all the particulars of the arrest or seizure to his immediate official superior. P.W.1 Shyam Narayan Mishra and P.W.2 Head Constable Rohtash Singh have deposed in their statements that the information was given to the S.O. In cross-examination, P.W.1 has stated that the S.O (to whom he alleged to have given information regarding the incident) is of the same rank. He also stated that there is no document regarding the fact that the information was given to the higher officials. This kind of oral assertion does not inspire confidence in the testimony of the witness. In the absence of any documentary evidence, mere ipse dixit statements of P.W.1 and P.W. 2 is not sufficient to conclude that compliance of section 57 was done in the present case. No superior officer was produced nor interrogated to substantiate such a claim by PW1 and PW2. In the absence of any documentary evidence, mere ipse dixit statements of P.W.1 and P.W. 2 is not sufficient to conclude that compliance of section 57 was done in the present case. No superior officer was produced nor interrogated to substantiate such a claim by PW1 and PW2. No doubt, Section 57 of the Act is directory and non compliance of the same by itself is insufficient to set aside the conviction but at the same time its non-compliance and non observance diminishes credibility of testimonies of prosecution witnesses and when scanned with other surrounding circumstances may make prosecution version unsubstantiated. 18. The next argument of learned counsel for the appellant was that there is no public or independent witness of the alleged recovery. I find force in this argument also. In the recovery memo, it is stated that recovery was sudden and therefore, independent witness could not be procured prior to search, seizure and arrest. People from public were asked to become witness but everyone denied to give evidence and also did not disclose their name for the reason that they do not want to involve in the controversy. It is noteworthy to state here that at one place, it is stated that the police party tried to procure the public witness but no one came forward, whereas, on the other hand, P.W.1 in his examination-in-chief has stated that as the recovery was sudden therefore no public witness was available. These contradictions, though minor, raises doubt about the veracity of the search and seizure proceedings. 19. As discussed above, in the present case, there is non-compliance of Section 50 of NDPS Act, coupled with no document regarding compliance of Section 57 and non-joining or non-procuring the public witness, creates reasonable doubt in the entire prosecution story. That being the position, impugned judgment and order is liable to be set aside and the appeal deserves to be allowed. 20. Accordingly, the criminal appeal is allowed. Impugned judgment and order dated 10.06.2003, passed by passed by Additional Sessions Judge/F.T.C. Kashipur, District Udham Singh Nagar, in Special Sessions Trial No.61 of 2001, is hereby set aside. Appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 21. Lower court record be sent back.