JUDGMENT : Hon'ble Ifaqat Ali Khan,J. 1. This Criminal Appeal No. 3234 of 2003 (Harish Chandra Vs. State of U.P.) is preferred by the appellant against the judgement and order dated 10.06.2003 passed by Special Judge (NDPS Act) Kanpur Nagar in Sessions Trial No. 377 of 2002 (State of Uttar Pradesh Vs. Harish Chandra) Case Crime No. 244 of 2002, under section 18/20 NDPS Act P.S. Sachendi District Kanpur Nagar by which the appellant has been convicted under section 20 (B) (ii) (b) NDPS Act and sentenced with rigorous imprisonment for 4 years with fine of Rs. 25,000/-. It is also provided that in default of payment of fine accused/appellant will under go additional imprisonment for 4 months. 2. Facts giving rise to this appeal are that on 07.08.2002 S.O. Sanjay Kumar, ASI Shatrughan Singh, Constable Hari Mohan Singh, Constable Indresh Kumar were on patrolling duty and when they were going towards village Chandrahanspur from village Dileeppur, then the police party saw that a person who is coming from the side of Chandrahanspur and he has having a bag in his hand. Seeing the police party that person turned about and started running. On suspicion police party apprehended him on 4:45 P.M. On being controverted he told that his name is Harish Chandra son of Paltoo Kori and his residence Dileeppur P.S. Sachendi, District Kanpur Nagar. When he was asked that why he was running then he told that he has illegal Charas in his possession when police party asked Harish Chandra to go to any Gazetted Office or Magistrate for search, then Harish Chandra told that he has faith on them and asked the police party to take a search. No public witness could be procured as accused was apprehended on isolated place. On search of Harish Chandra 500 gm of Charas was recovered from the plastic bag of Harish Chandra yellow in colour which he was carrying in his right hand and this Charas was wrapped in polythin. Constable Hari Mohan Singh brought the balance from village Dileeppur. The recovered Charas was weighed-in. Out of it 25 gm Charas was taken out as sample and rest of Charas was wrapped in same polythin and was kept in bag which was recovered from Harish Chandra and the bag was tied with lace. Sample and rest recovered Charas were sealed separately. The recovered Charas was weighed-in. Out of it 25 gm Charas was taken out as sample and rest of Charas was wrapped in same polythin and was kept in bag which was recovered from Harish Chandra and the bag was tied with lace. Sample and rest recovered Charas were sealed separately. The recovery memo was prepared and the copy of recovery memo was provided to the accused Harish Chandra. On the basis of this recovery memo the FIR was lodged at police station Sachendi and case was registered at Police Station, investigation was conducted. 3. After investigation I.O. submitted the chargesheet under section 18/20 NDPS Act against accused/appellant Harish Chandra. Charge under section 20 (B) (ii) (b) was framed against accused/appellant Harish Chandra which he denied and demanded trial. 4. In support of his version prosecution filed documentary evidence recovery memo Ex. Ka-1, Information Memo Ex. Ka-2, Proforma Inspection Report Ex. Ka-3, Chik FIR Ex. Ka-4, Carbon copy of GD Ex. Ka-5, Site Plan Ex. Ka-6, Docket Ex. Ka-7, FSL report Ex. Ka-8 and Chargesheet Ex. Ka-9 were filed as documentary evidence. Prosecution also examined PW-1 Constable Hari Mohan Singh, PW-2 Constable Indresh Kumar, PW-3 Sub Inspector Sanjay Kumar and PW-4 S.I. Subh Suchit to prove its case. Out of these 4 witnesses PW-1 Constable Hari Mohan Singh, PW-3 Sub Inspector Sanjay Kumar are the witnesses of fact whereas PW-2 Constable Indresh Kumar is the formal witness he has recorded the FIR on the basis of recovery memo and he has also recorded the GD for registering the case and PW-4 S.I. Subh Suchit is the Investigating Officer he has proved the investigation, site plan and chargesheet. 5. Statement of accused under section 313 Cr.P.C was recorded in which he denied the occurrence and stated that due to the local politics he is falsely implicated in this case and witnesses have given the false statements. 6. On the basis of above evidence learned Special Judge (NDPS Act) Kanpur Nagar convicted the accused/appellant Harish Chandra under section 20 (B) (ii) (b) NDPS Act and sentenced with rigorous imprisonment for 4 years with fine of Rs. 25,000/-. It also provided that in default of payment of fine accused/appellant will under go additional imprisonment for 4 months. 7. Being aggrieved by this judgment and order dated 10.06.2013 this appeal is preferred on the grounds that impugned judgement is passed against evidence on record. 25,000/-. It also provided that in default of payment of fine accused/appellant will under go additional imprisonment for 4 months. 7. Being aggrieved by this judgment and order dated 10.06.2013 this appeal is preferred on the grounds that impugned judgement is passed against evidence on record. There is no public witness of recovery or arrest and provision of NDPS Act has not been complied with at the time of arrest of appellant Harish Chandra. There are major contradictions in evidence produced by the prosecution. Conviction of appellant is absolutely illegal and not sustainable in the eyes of law. Sentence awarded by the appellant is too severe. 8. Sri Akhil Kumar Shukla, learned counsel for the appellant did not appear in this appeal. Hence Dr. Abida Syed was appointed Amicus Curiae in this appeal to conduct the appeal on behalf of appellant. 9. Heard Dr. Abida Syed, Amicus Curiae for the appellant and learned A.G.A for the State and perused the record. 10. Learned Amicus Curiae argued that there is no public witness on the recovery and arrest, it creates the prosecution case doubtful. I disagree with this argument of learned Amicus Curiae because in recovery memo it is specifically mentioned that the accused Harish Chandra is apprehended by the police at deserted place, therefore, the police party could not procure the public witness. The reason of nonavailability of public witness shown in the recovery memo is sufficient. This court is of the opinion that presence of a public witness at the time of arrest is desirable and it fortifies the prosecution case, However, the same is a rule of prudence and not mandatory as it is not always possible to procure the presence of public witness the Hon'ble Supreme Court has held that in Jarnail Singh Vs. State of Punjab, 2011 CrLJ General 1738 (SC); Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 and State of Punjab Vs. Makhan Chand, AIR 2004 SC 306 "that the obligation to take public witnesses (independent witnesses) is not absolute. If after making efforts which the court considers in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and recovery made would not necessarily be vitiated. If after making efforts which the court considers in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and recovery made would not necessarily be vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer is believable after taking due care and caution in evaluating their evidence". It is pertinent to note that the testimonies of the prosecution witnesses cannot be discarded solely on the ground that the said witnesses are police witnesses. As held by the Hon'ble Allahabad High Court in Rati Ram and Others Vs. State of Uttar Pradesh 2013 (81) ACC 550 that the statement of a police officer can be relied upon and even from the basis of conviction when the same is reliable and trustworthy and preferably corroborated by other evidence on record. In Abdul Mazid Abdul Haq Ansari Vs. State of Gujarat 2003 (10) Supreme Court Cases 198 Hon'ble Supreme Court has held that the conviction can be based on evidence of police witnesses only considering the above rulings this court come to the conclusion that in this case nonavailability of public witnesses and examination of the police witnesses only by the prosecution does not affect the prosecution case adversely. 11. The learned Amicus Curiae advance her second argument that in the present case the raiding party did not comply with the provisions of section 50 (i) and did not inform the accused about his right to get his search carried out before the Gazetted Officer or Magistrate. Section 50 (i) of NDPS Act provides that "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". 12. The learned Amicus Curiae placed the reliance in K. Mohanan Vs. State of Kerala 1999 LawSuit(SC) 1178; State of Punjab Vs. Baldev Singh (1999) 6 Supreme Court Cases 172 and Vijay Singh Chandubha Jadeja vs. State of Gujarat., (2011) 1 Supreme Court Cases 609 in K. Mohanan Vs. 12. The learned Amicus Curiae placed the reliance in K. Mohanan Vs. State of Kerala 1999 LawSuit(SC) 1178; State of Punjab Vs. Baldev Singh (1999) 6 Supreme Court Cases 172 and Vijay Singh Chandubha Jadeja vs. State of Gujarat., (2011) 1 Supreme Court Cases 609 in K. Mohanan Vs. State of Kerala Hon'ble Supreme Court has held 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 in State of Punjab Vs. Baldev Singh Hon'ble Supreme Court has held that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. In Vijay Singh Chandubha Jadeja vs. State of Gujarat Hon'ble Supreme Court has held that the "provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him. In the present case ruling K. Mohanan Vs. State of Kerala; State of Punjab Vs. Baldev Singh and Vijay Singh Chandubha Jadeja vs. State of Gujarat does not apply because in this present case the 500 gm Charas is not recovered from the personal search of the appellant Harish Chandra, but the Charas is recovered from the plastic bag which appellant Harish Chandra was holding in his right hand. Baldev Singh and Vijay Singh Chandubha Jadeja vs. State of Gujarat does not apply because in this present case the 500 gm Charas is not recovered from the personal search of the appellant Harish Chandra, but the Charas is recovered from the plastic bag which appellant Harish Chandra was holding in his right hand. This Court is of the firm opinion that provisions of section 50 of the NDPS Act are applicable only when the bodily search of accused is carried out when the person of the accused is searched then the procedural safeguards of section 50 of the NDPS Act are in full swing and no deviation from the same is permitted, however, in case of search of the bag of the accused being carried by him in his hand, then in such cases provisions of section 50 of the NDPS Act are inapplicable as held by the Hon'ble Supreme Court in Jarnail Singh Vs. State of Punjab, 2011 CrLJ General 1738 (SC) and State of Punjab Vs. Baldev Singh (1999) 6 Supreme Court Cases 172 that search of person under section 50 of the NDPS Act does not include search and recovery from bag, briefcase and container etc. Section 50 applies where personal search of a person is involved. Thus, the provisions of section 50 of the NDPS Act are inapplicable to the present case. 13. Learned Amicus Curiae advance her next argument that as per FIR Constable Parmesh Mishra and ASI Satrughan Singh was also the members of police party which apprehended the accused Harish Chandra and carried out his search and recovered the alleged 500 gm Charas from accused/appellant, but the prosecution has not examined Constable Parmesh Mishra and ASI Satrughan Singh as the prosecution witnesses in the court. In my opinion this argument of learned Amicus Curiae has no force because prosecution has examined 2 witnesses of the fact PW-1 Constable Hari Mohan Singh and PW-3 S.I. Sanjay Kumar to prove its case all witnesses of the fact mentioned in FIR are not required to be examined by the prosecution. Hon'ble Supreme Court in Amar Singh Vs. Balvinder Singh ACC 2003 (46) page 619 has held that examination of all witnesses named in the FIR is not necessary, no particular number of witnesses are required for to prove any fact. 14. Hon'ble Supreme Court in Amar Singh Vs. Balvinder Singh ACC 2003 (46) page 619 has held that examination of all witnesses named in the FIR is not necessary, no particular number of witnesses are required for to prove any fact. 14. Learned Amicus Curiae submitted that in recovery memo it is mentioned that Charas wrapped in polythin and kept in bag was recovered from the accused, but PW-3 S.I. Sanjay Singh in his statement has submitted that recovered Charas was in 2 pieces. This contradiction creates doubt on the version of prosecution. But in my opinion it is no contradictions maximum it is an omission because in recovery memo nowhere mentioned that alleged recovered Charas was in single piece or in two pieces or in how many pieces. 15. Learned Amicus Curiae submitted that in Forensic Science Laboratory report it is not mentioned that what was the percentage of Charas in recovered contraband substance. 16. Learned Amicus Curiae submitted that PW-1 Constable Hari Mohan Singh in his statement has submitted that Constable Parmesh Mishra caught hold the appellant Harish Chandra first, whereas PW-3 S.I. Sanjay Singh in his statement has submitted that all the police personal jointly apprehended the accused Harish Chandra. This contradiction creates doubt on the testimony of the witnesses of prosecution. This court is of the opinion that it is not in major contradiction rather it is a minor contradiction and when the police party is jointly approaching to apprehend the accused, then it become irrelevant that who caught hold the accused first and it is also not always possible for the members of police party to notice that who caught hold or touched the accused first. 17. Learned Amicus Curiae advance her next argument that in this matter 25 gm sample of Charas was sent for testing to Forensic Science Laboratory. In Forensic Science Laboratory report it is not mentioned that what was the ratio of Charas in the sample which was sent to the Forensic Science Laboratory for testing. In this regard Amicus Curiae placed reliance on the ruling of Hon'ble Supreme Court E. Michael Raj Vs. Intelligence Officer Narcotics Control Bureau 2008 (61) ACC Page 660 which is deiced on 11th March 2008. 18. This Court is of the view that the argument of learned Amicus Curiae is not tenable because the ruling of E. Michael Raj applies to Heroin and not to Charas. Intelligence Officer Narcotics Control Bureau 2008 (61) ACC Page 660 which is deiced on 11th March 2008. 18. This Court is of the view that the argument of learned Amicus Curiae is not tenable because the ruling of E. Michael Raj applies to Heroin and not to Charas. In the present case 500 gm of Charas is recovered from accused/appellant. 19. Secondly the effect of E. Michael Raj was overrided by notification No. S.O. 2941 (E) dated 18.11.2009, amending Notification No. S.O. 1055 (E) dated 19.10.2001 and these notifications are challenged before the Hon'ble Apex Court in CRIMINAL APPEAL NO. 722 OF 2017 (Arising out of SLP (Crl.) NO. 6092 OF 2014) WITH Criminal Appeal No. 721 of 2017 (@ of SLP (Crl.) No. 8674 of 2014) Civil Appeal No. 5218 of 2017 (@ of SLP (C) No. 21465 of 2014) W.P. (Crl.) Nos. 77 and 154 of 2016 AND W.P. (Crl.) No. 186 of 2014 in which no interim order have been passed and matter was referred to the Larger Bench vide order dated 03.07.2017. 20. On the basis of above discussion I come to this conclusion that there is no illegality and irregularity in the impugned judgement and order dated 10.06.2003 and this court decline to interfere with the findings given by the court below in judgement and order dated 10.06.2003 passed by Special Judge (NDPS Act) Kanpur Nagar in Sessions Trial No. 377 of 2002 (State of Uttar Pradesh Vs. Harish Chandra) Crime No. 244 of 2002, under section 18/20 NDPS Act P.S. Sachendi District Kanpur Nagar. 21. Appeal is liable to be dismissed. 22. Appeal is dismissed. 23. Judgement and order dated 10.06.2003 passed by Special Judge (NDPS Act) Kanpur Nagar in Sessions Trial No. 377 of 2002 (State of Uttar Pradesh Vs. Harish Chandra) Crime No. 244 of 2002, under section 18/20 NDPS Act P.S. Sachendi District Kanpur Nagar, is confirmed. 24. Lower Court record be sent back to the court concern for compliance. 25. The case property be destroyed as per rules after the expiry of the period for appeal, in case no appeal is preferred. 26. Dr. Abida Syed, Amicus Curiae will get Rs. 10,000/- as fee for assisting the court.