JUDGMENT : Ifaqat Ali Khan, J. 1. This Criminal Appeal No. 6798 of 2017 (Jakir @ Dada Vs. State of U.P.) is filed by the appellant Jakir @ Dada against the judgment and order dated 01.07.2014/05.07.2014 passed by Special Judge NDPS Act/Additional Sessions Judge Court No. 2 Mahoba in Special Case No. 47 of 2011 (State Vs. Jakir @ Dada) arising out of Case Crime No. 3 of 2011, under section 21 of NDPS Act, Police Station Kotwali Mahoba, District Mahoba, whereby convicting the appellant under section 21 of NDPS Act and sentencing him for rigorous imprisonment for 3 years with fine of Rs. 10,000/- and in default of payment of fine accused/appellant will under go additional imprisonment for 6 months. 2. Facts giving rise to this appeal are that as per prosecution on 01.01.2011 Sub Inspector M.A. Khan alongwith the Constable Arun Kumar Awasthi and Constable Jagdish Prasad Mishra departed from police station at 00.35 O'Clock for patrolling duty and search of criminals after making the entry of departure in GD No. 4. When the police party reached at Parmanand Tiraha then they saw a person who was coming from the side of bus stand. Seeing the police persons that person turned back and started moving swiftly, on doubt police personnel apprehended him near about 80 steps away from Parmanand Tiraha towards bus stand at about 2:10 O'Clock. On being controverted he told that his name is Jakir @ Dada when the reason of his running was asked then he told that he has Diazepam Tablets with him. On knowing it police party asked to the accused/appellant that you are having the intoxicant tablets Diazepam, therefore, your search will be carried out before any Magistrate or Gazetted Officer and you will have to move with them, then the accused/appellant said that I will not go anywhere you carry out my search, I takes intoxicant tablets and also sales some intoxicant tablets. He also gave his consent for his search by police personnel. On search of accused Jakir from right pocket of his pant 400 intoxicant Diazepam tablets wrapped in polythin blue in colour were recovered. Constable Jagdish Prasad Mishra brought the balance from bus stand. Recovered 400 tablets were weighed-in. They were found 100 gram in weight. Recovered tablets were sealed on the spot and recovery memo was prepared. On search of accused Jakir from right pocket of his pant 400 intoxicant Diazepam tablets wrapped in polythin blue in colour were recovered. Constable Jagdish Prasad Mishra brought the balance from bus stand. Recovered 400 tablets were weighed-in. They were found 100 gram in weight. Recovered tablets were sealed on the spot and recovery memo was prepared. On the basis of recovery memo F.I.R bearing Case Crime No. 3 of 2011 was registered at Police Station Kotwali Mahoba, District Mahoba and the entry for registration of case was made in GD. Recovered 400 Diazepam tablets were sent to Forensic Science Laboratory Agra for testing. S.I. Govind Singh conducted the investigation. 3. After investigation Investigating Officer submitted the chargesheet under section 21 of NDPS Act against accused/appellant Jakir @ Dada. Charge under section 21 of NDPS Act was framed which he denied and demanded trial. 4. Prosecution examined PW-1 S.I. M.A. Khan, PW-2 Constable Arun Kumar Awasthi, PW-3 S.I. Govind Singh and PW-4 Constable Ramakant Singh. Out of these four witnesses PW-1 S.I. M.A. Khan and PW-2 Constable Arun Kumar Awasthi are the witnesses of fact. PW-1 S.I. M.A. Khan is also the complainant of this case. PW-3 S.I. Govind Singh is the Investigating Officer and PW-4 Constable Ramakant Singh is the scriber he recorded the F.I.R and also made the entry for registering the case in GD. 5. Statement of accused under section 313 Cr.P.C was recorded he denied recovery from him and said that the investigation is wrongly conducted and he is falsely implicated in this case. 6. On the basis of above evidence available on record learned Trial Court vide its judgment dated 01.07.2014 and order dated 05.07.2014 convicted the accused/appellant under section 21 of NDPS Act and vide order dated 05.07.2014 sentenced him for imprisonment of 3 years with fine of Rs. 10,000/- and it also provided that in default of payment of fine he will under go additional imprisonment for 6 months. 7. Being aggrieved by the judgment and order dated 01.07.2014/05.07.2014 this appeal is preferred by the appellant on the ground that the impugned judgment and order is illegal arbitrary without application of mind and proper appreciation of evidence. Impugned judgment is bad in the eyes of law. Impugned judgment and order liable to be quashed. 8. 7. Being aggrieved by the judgment and order dated 01.07.2014/05.07.2014 this appeal is preferred by the appellant on the ground that the impugned judgment and order is illegal arbitrary without application of mind and proper appreciation of evidence. Impugned judgment is bad in the eyes of law. Impugned judgment and order liable to be quashed. 8. Heard Sri Radhey Shyam Yadav, learned Amicus Curiae for the appellant and learned A.G.A Sri Vijay Bahadur Yadav assisted by brief holders Sri Rajeev Kumar Rai and Sri Avaneesh Kumar Shukla and perused the record. 9. It is worth mention that as per report of Additional Session Judge Court No. 2 Mahoba dated 01.01.2018 and the report of Jailer Mahoba the accused/appellant has already served the sentence. 10. Learned Amicus Curiae advance his argument that in this case there is no public witness all the witnesses are police personnel, thus, the prosecution is failed to prove its case beyond doubt. I disagree with this argument of learned Amicus Curiae because in this case the accused is apprehended all of sudden by the police at 2:10 AM in the night. In such circumstances the availability of public witness is highly improbable and nonavailability of public witness does not affect the prosecution case in Hon'ble Allahabad High Court in Ekram Waris Vs. State of U.P., 2005 All LJ 1799 has held that "the evidence of such departmental or police witnesses has been doubted by the Courts only in the cases when in one or the given situation/circumstance, their conduct is found to be unnatural or otherwise suspicious while making recovery and doing the formalities, as required under law." and in Hon'ble Supreme Court in Karamjit Singh Vs. State (Delhi Admn.), (2003) 5 SCC 291 has held that "The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds." and in Hon'ble Supreme Court in Akmal Ahmad Vs. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds." and in Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi, (1999) 3 SCC 337 has held that "It is now well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by any independent witness." and in Hon'ble Supreme Court in Jarnail Singh Vs. State of Punjab, (2011) 3 SCC 521 has held that "Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated." and in Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 has held that "The obligation to take public witnesses is not absolute. If after making efforts which the court considered 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 the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence." and in Hon'ble Allahabad High Court in Rati Ram v. State of U.P., 2013 SCC OnLine All 13007 has held that "The testimony of police personnel cannot be rejected merely because they belong to Police Department. Their testimony should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of a police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons." and in Hon'ble Supreme Court in C. Ronald Vs. UT, Andaman & Nicobar Islands, (2011) 12 SCC 428 has held that "There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. UT, Andaman & Nicobar Islands, (2011) 12 SCC 428 has held that "There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad people in all walks of life. There are good and bad policemen as well. We cannot assume that every statement of a policeman is necessarily false." and in Hon'ble Supreme Court in Abdul Majid Abdul Hak Ansari Vs. State Of Gujarat, (2003) 10 SCC 198 has held that "where prosecution has proved beyond reasonable doubt that the charas was seized from the person of the appellant and the same was properly sent to the Forensic Science Laboratory for the purpose of analysis and the same was found to be a contraband article, sale of which is prohibited under the provision of the Act and the appellant was found possessing the said quantity of charas for the purpose of sale then conviction can be based on evidence of police witnesses." and in Hon'ble Supreme Court in Girja Prasad v. State Of Madhya Pradesh (2007) 7 SCC 625 has held that "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor". 11. Learned Amicus Curiae submitted that there is no evidence on record to show that information to the higher officer regarding the arrest of accused and scissor of contraband substance was sent to the Senior Officer. Thus, the provision of section 57 of NDPS Act is not complied with. Perusal of record shows that in this file there is no evidence that the information regarding arrest and seizure was sent to Superior Officer. In my opinion appellant is not going to benefited on account of this noncompliance of section 57 of NDPS Act because that provisions of sections 52 and 57 are not mandatory. In Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 in Manohar Lal Mehre Vs. State of Madhya Pradesh (2006) 39 AIC 446 (M.P. DB) court has held that "violation of section 57 would not ipso-facto vitiate the trial or conviction this provision is directory in nature." 12. In Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299 in Manohar Lal Mehre Vs. State of Madhya Pradesh (2006) 39 AIC 446 (M.P. DB) court has held that "violation of section 57 would not ipso-facto vitiate the trial or conviction this provision is directory in nature." 12. Learned Amicus Curiae advance his next argument that in recovery memo it is mentioned that Constable Jagdish Prasad Mishra fetched the balance and weight then the Diazepam tablets were weighed-in but in the whole case it is no where mentioned that from where Constable Jagdish Prasad Mishra fetched the balance and weight. Neither the Constable Jagdish Prasad Mishra nor the person from whom Constable Jagdish Prasad Mishra brought the balance are examined. It creates doubt on the prosecution case. I agree with this argument of learned Amicus Curiae non-examination of Constable Jagdish Prasad Mishra and non-disclosure of particular of person from whom Constable Jagdish Prasad Mishra brought the balance and weight, creates prosecution case doubtful. 13. At last learned Amicus Curiae argued that in the present case provision of section 50 (i) are not complied with by the police party. 14. Perusal of record shows that in recovery memo it is mentioned that accused was told by police party that because the intoxicant tablets are in your possession, therefore, your search will be carried out before the Gazetted Officer or a Magistrate and for it you will have to move with them. PW-1 S.I. M.A. Khan in his statement has stated that when the apprehended person told that he has intoxicant Diazepam tablets in his possession due to this reason he was told you will be searched out before any Magistrate or a Gazetted Officer. PW-2 Arun Kumar Awasthi also stated in his statement that when the accused told that he has intoxicant Diazepam tablets in his possession then he was told you have intoxicant tablets Diazepam so your search will be carried out before any Magistrate or Gazetted Officer and you will have to move with police party for it. PW-2 Arun Kumar Awasthi also stated in his statement that when the accused told that he has intoxicant Diazepam tablets in his possession then he was told you have intoxicant tablets Diazepam so your search will be carried out before any Magistrate or Gazetted Officer and you will have to move with police party for it. From perusal of recovery memo and the statements of both the witnesses of recovery and arrest i.e. PW-1 S.I. M.A. Khan and PW-2 Constable Arun Kumar Awasthi it is clear that accused was not informed about his right, he was not told that it his right to get himself search before the Gazetted Officer or a Magistrate. Hon'ble Supreme Court in State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and Vijay Singh Chandubha Jadeja vs. State of Gujarat., (2011) 1 SCC 609 has held that "it is imperative for empowered officer to inform the person concerned (suspect) about existence of his right that if he so requires he shall be searched before the Gazetted Officer or a Magistrate failure the inform the suspect about the existence of his said right would cause prejudice to him." K. Mohanan Vs. State of Kerala 1999 LawSuit (SC) 1178 has held that "imperative for the empowered officer to inform the person concerned of his right under section 50 (i), if the accused who was subjected to search was merely asked whether he required to be searched in the presence of a Gazetted Officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so in such case it will be held that there was the noncompliance of section 50 of NDPS Act. As the accused is not told in this case by the police raiding party that it is his right to get himself searched before the Magistrate or a Gazetted Officer." Thus, this court is of the considered opinion that the police party did not comply with the provisions of section 50 (i) N.D.P.S Act in this case. 15. On the basis of above discussion I come to this conclusion that the impugned judgment and order dated 01.07.2014/05.07.2014 is not good in the eyes of law and is liable to be set aside. 16. This Criminal Appeal No. 6798 of 2017 is deserves to allowed. 17. 15. On the basis of above discussion I come to this conclusion that the impugned judgment and order dated 01.07.2014/05.07.2014 is not good in the eyes of law and is liable to be set aside. 16. This Criminal Appeal No. 6798 of 2017 is deserves to allowed. 17. Criminal Appeal No. 6798 of 2017 (Jakir @ Dada Vs. State of U.P.) is allowed. 18. Judgment and order dated 01.07.2014/05.07.2014 passed by Special Judge NDPS Act/Additional Sessions Judge Court No. 2 Mahoba in Special Case No. 47 of 2011 (State Vs. Jakir @ Dada) arising out of Case Crime No. 3 of 2011, under section 21 of NDPS Act, Police Station Kotwali Mahoba, District Mahoba is set aside. Accused/appellant Jakir @ Dada is acquitted from the charge under section 21 of NDPS Act. 19. Lower Court record be sent back to the court concerned for compliance. 20. The case property be destroyed as per rules after the expiry of the period for appeal. 21. Sri Radhey Shyam Yadav, Amicus Curiae will get Rs. 10,000/- as fee for assisting the court.