JUDGMENT : Vivek Singh Thakur, J. Present appeal has been preferred by the appellant/accused against his conviction vide judgment dated 14.7.2006 passed by learned Special Judge, Kangra at Dharamshala in sessions case No. 24-K/VII/2005/Sessions trial No. 10 of 2006, titled State of H.P. vs. Mahesh Kumar in FIR No. 90 dated 23.3.2004 registered in P.S. Kangra under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) whereby the appellant has been convicted for commission of offence under Section 20 of the NDPS Act and sentenced to undergo rigorous imprisonment for five years with fine of Rs.30,000/- and in case of default in making the payment of fine, to further undergo rigorous imprisonment for one year. 2. Prosecution case, in brief, is that police party, headed by PW11 Sanjeev Chauhan SHO P.S. Kangra, during traffic checking, had recovered 490 grams charas from the person of appellant/accused in the presence of witnesses PW2 Rakesh Kumar and PW4 HC Som Raj. After recovery of contraband, the same was taken in possession vide memo Ext.PW2/B after weighing it in the shop of PW7 Ajay Kumar and two samples of 25 grams each were also taken out from the recovered contraband and samples as well as remaining contraband was seized by sealing it in the covers of cloth with seal 'D’. 3. Thereafter ruka Ext.PW11/C was prepared and sent to Police Station Kangra through PW5 HHC Madan Lal, whereupon FIR Ext.PW11/D was registered and after registration of FIR, case file was handed over to Madan Lal to deliver it to PW11 Inspector Sanjeev Chauhan. NCB form Ext.PW11/E in triplicate was filled by PW11 in triplicate in on the spot and sample impression of seal 'D’ was also taken thereon. Special report Ext.PW5/A was prepared and sent to the office of Superintendent of Police through PW5 Madan Lal, who handed over the same to PW8 HC Subhash Chand. 4. During investigation, site plan was prepared and statements of witnesses were recorded and samples of contraband were sent for chemical examination to CTL Kandaghat and after receiving the report Ext.PW11/F from CTL Kandaghat, challan was prepared and presented in the Court. 5. On findings prima facie complicity in commission of offence, charge under Section 20 of NDPS Act was framed against the accused and on conclusion of trial, appellant/accused stands convicted and sentenced by the trial Court. 6. 5. On findings prima facie complicity in commission of offence, charge under Section 20 of NDPS Act was framed against the accused and on conclusion of trial, appellant/accused stands convicted and sentenced by the trial Court. 6. I have heard learned counsel for parties and have also gone through the record. 7. PW2 Rakesh Kumar is an independent witness associated by the police during recovery of charas. He has not supported the prosecution case. Contrary to the police version, he has stated that police stopped the bus by parking the police vehicle in front of bus at Hatwas and one policeman came out and boarded the bus and caught hold one passenger and took him out from bus by saying 'mil-gaya-mil-gaya’ and that person is accused in the Court. According to him, other police officials came inside the bus and asked the passengers to come out and accused was being beaten by police officials. According to him, thereafter he came to know that police had recovered charas in the form of sticks but he did not know from whose possession the charas was recovered. He was subjected to cross examination, but during lengthy cross examination, nothing material could be elucidated in favour of prosecution case. 8. Another witness of recovery is PW4 HC Som Raj who has supported the prosecution case by saying that during personal search of accused, charas in the form of sticks was recovered from his vest. In cross examination, he has denied that as soon as the bus was stopped they caught hold the accused and started proclaiming 'mil-gaya-mil-gaya’. According to him, all passengers were checked by police and bus was also searched by them. He has admitted the suggestion that he had stated in his statement that police had suspicion against the accused. 9. PW3 Om Parkash is driver of bus. He has also not supported the prosecution case by stating that police vehicle came from opposite side and signalled to stop the bus and after stopping, the police officials entered the bus, searched it and passengers were also searched by police but nothing was recovered from any passenger and when all passengers had come out from bus, then one constable entered the bus and proclaimed that he had recovered the charas from bus. He was declared hostile, but despite lengthy cross examination by learned Public Prosecutor, he has not supported the prosecution case. 10. He was declared hostile, but despite lengthy cross examination by learned Public Prosecutor, he has not supported the prosecution case. 10. PW9 Ashok Kumar is conductor of bus. He has also not supported the prosecution case by saying that nothing was recovered from possession of accused. He was also cross examined by prosecution but nothing material could be extracted in his statement in favour of prosecution case. 11. PW11 Sanjeev Chauhan, SHO in his statement, has stated that when he was checking the documents of bus, appellant/accused had tried to escape from spot, but he was chased and apprehended and was unable to give satisfactory explanation for his conduct and therefore, he had suspected that he might be having some contraband in his possession, whereupon he had conducted his personal search and during personal search charas was recovered from his vest. According to him, personal search of accused was taken in presence of witnesses. In the rest of evidence, he has tried to support the prosecution story based on record. 12. In the cross examination, he has admitted that provisions of Section 50 of NDPS Act was not adhered to. He has explained that he had apprehended the accused for having something in his possession. 13. It emerges from statements of PW2 Rakesh Kumar and PW4 HC Som Raj that police party was having previous information of a person coming with contraband and before personal search of appellant, police party was suspected that appellant was carrying some contraband and therefore, his personal search was conducted. In case their version is believed, then present case cannot be said to be a case of chance recovery as the contraband, alleged to have been recovered from vest of appellant/accused during his personal search conducted for suspicion that he was carrying the contraband with him. 14. Mandate of Section 50 of NDPS Act requires that in cases where Investigating Officer has suspicion or reason to believe that accused is carrying the contraband, he has to comply with Section 50 of NDPS Act and failure to comply mandatory provisions of Section 50 has been held to be causing prejudice to the suspect/accused, rendering the recovery of illicit article illegal and vitiating the proceedings conducted by Investigating Officer. 15. 15. The Apex Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in (2011) 1 SCC 609 has held that conviction based on such recovery of illicit article is vitiated for want of compliance of Section 50 of NDPS Act. 16. The claim of prosecution that it was the case of chance recovery is not sustainable for the reason that PW11 Sanjeev Chauhan in his examination-in-chief has categorically stated that on account of conduct of appellant/accused he suspected that accused might be having some contraband etc. in his possession. PW2 Rakesh Kumar and PW4 HC Som Raj have also substantiated the plea of appellant/accused that it was not a chance recovery but the police party was searching for some one and prior to searching the accused the police had suspicion that accused was carrying contraband and therefore, compliance of Section 50 of NDPS Act was mandatory in the present case. It is undisputed, as admitted by PW11 Sanjeev Chauhan in his cross examination, that no option, as required under Section 50 of the Act, was given to accused. 17. Even if it is accepted that police was not having prior information, even then it has come in evidence of prosecution that before conducting personal search of appellant, PW11 Sanjeev Chauhan had suspected the possession of contraband by appellant/accused. Therefore, it was incumbent upon him to resort to provisions of Section 50 of NPDS Act. 18. In view of settled law of land in numerous pronouncements of the Apex Court as well as the decision rendered by the Constitutional Bench of the Apex Court in Vijaysing’s case (referred supra), the appellant is entitled for acquittal on the ground of non-compliance of Section 50 of the Act. 19. It is the case of prosecution that during traffic checking, the bus in question was stopped and driver of the bus was asked to show the papers and at that time, a passenger got down from the bus and had tried to escape, who was apprehended by PW11 Sandeep Chauhan with the help of his companion police officials and when he could not satisfactorily explained about the reason for running from the spot, his personal search was conducted and contraband was recovered from his vest. 20. 20. PW11 Sandeep Chauhan, in his statement in Court, has reiterated the said story with further addition that he had suspected that accused might be having some contraband etc. in his possession. Whereas, PW2 Rakesh Kumar has different story to tell. He has stated that bus was stopped by parking the police vehicle in front thereof and one policeman came in the bus and caught hold of one passenger and taken him out of the bus by saying milgaya-milgaya and thereafter other police officials came inside the bus and asked the passengers to get down from the bus one by one and police had beaten the accused and thereafter, it was proclaimed by the police that charas in the form of sticks has been recovered. 21. PW2 Rakesh Kumar was declared hostile. However, his version has certain corroboration in the deposition of PW3 Om Parkash, who was also declared hostile. PW3 Om Parkash has stated that after stopping the vehicle on the signal of police, coming from opposite side in the police vehicle, police officials had entered the bus and searched every passenger personally and nothing was recovered from any passenger and when all passengers had alighted from the bus one Constable had entered the bus and proclaimed about the recovery of charas from the bus. He has further stated that personal search of accused was not conducted in his presence but accused was beaten by the police. 22. PW4 Som Raj in his examination-in-chief has stated that when passengers were being checked, one passenger, who tried to run away, was apprehended and for want of satisfactory explanation for his conduct, his personal search was conducted. Whereas, it is the case of prosecution that when documents of bus were being checked, one passenger i.e. accused had tried to escape after getting down from the bus. 23. PW9 Ashok Kumar conductor of bus has also stated that police had started searching the passengers including the accused, however nothing was recovered from the possession of accused. The aforesaid evidence on record creates doubt about the prosecution version regarding the manner in which charas was allegedly recovered. There are two versions on record, which cast doubt about fair investigation. PW9 Ashok Kumar conductor of bus has also stated that police had started searching the passengers including the accused, however nothing was recovered from the possession of accused. The aforesaid evidence on record creates doubt about the prosecution version regarding the manner in which charas was allegedly recovered. There are two versions on record, which cast doubt about fair investigation. It is true that there is 'reverse onus’ upon the accused under presumptions provided under Sections 35 and 54 of the Act, but at the same time, it is also cardinal principle of criminal jurisprudence that before attracting these presumptions, the prosecution has to prove the recovery of contraband from conscious possession of accused. 24. As discussed above, the manner, in which the recovery of contraband has been alleged, has become doubtful. Therefore, the appellant is entitled for benefit of doubt on this count. 25. Other witnesses are formal in nature, associated during investigation for completion of procedure and as the appellant is entitled for acquittal for non-compliance of Section 50 of NDPS Act, and for benefit of doubt there is no necessity to discuss their evidence. 26. Learned Special Judge has committed a mistake by not considering the evidence on record in right perspective. For discussion herein above, impugned judgment is set aside and appellant/accused is acquitted of charge. Bail bonds furnished by and on his behalf are discharged. As the appellant/accused has been acquitted, he is also entitled for refund of fine amount, deposited by him in the trial Court, which shall be released in his favour on filing an appropriate application along with copy of this judgment. 27. Appeal stands allowed. Record be sent back forthwith.