JUDGMENT : Pradeep Kumar Srivastava, J. 1. This criminal appeal has been preferred against the impugned judgment dated 2.7.2018, passed by Additional Sessions Judge, Court No. 11, Moradabad, in Special Sessions Trial No. 74 of 2011 (State v. Aniruddh Lal Srivastava @ Anulal), arising out of Case Crime No. 229 of 2011, under sections 8/21 N.D.P.S. Act, Police Station Pakbada, District Moradabad, whereby the appellant has been convicted and sentenced for the offence under section 21-B N.D.P.S. Act for six years imprisonment and Rs.20,000/- fine and in default thereof ten days additional imprisonment. 2. The prosecution case is that on 4.6.2011, Sri Vijay Bhushan, S.P. City, Moradabad alongwith his companion police force was on law and order duty. In the evening on Deengarpur Tiraha, SO Pakbada with his jeep and SI Vijendra Singh, SI Satendra Singh, Constable Janardan Singh, Constable Shahnawaz and SOG SI Arvind Mohan Sharma, Arshad Saifi and Raghuveer Singh met in their vehicle with Constable Veerpal who were talking with SO Pakbada in respect of the incident of loot which took place on 31.5.2011. An information was received from the informer that three persons who have come from Bihar with heroine are present at the gate of TMU College. Believing on this information, the police team tried to search out public witnesses but failed. They searched each other to ensure that none of them have any incriminating articles. Leaving the vehicle on Deengarpur Tiraha, the police force reached in front of Nazar Hospital, where the informer pointed out towards three persons standing on the main gate of TMU College stating that these persons are having heroine in good quantity. The three persons seeing the police coming towards them, started walking hastily towards emergency gate and when asked to stop by the police, they started running away from there. Only one person out of three was caught by the police at TMU emergency gate at about 7:45 PM and other two persons despite all efforts made by police team, escaped from there. On inquiry, the arrested person told his name to be Aniruddh Lal Srivastava alias Anulal. When a search was conducted, a green packet of polythene in which two packets of Glucon-D were kept were recovered from his hand wherein some white substance was present and the accused said it to be heroine and when police team smelt it, they also found it to be heroine. When a search was conducted, a green packet of polythene in which two packets of Glucon-D were kept were recovered from his hand wherein some white substance was present and the accused said it to be heroine and when police team smelt it, they also found it to be heroine. The accused informed that the persons who ran away from the place, were Sudhanshu Mishra and Binda of Bihar. The recovered heroine was measured and it was found to be 500 grams in the bigger packet and 250 grams in the smaller packets. He could not show the license for keeping the said heroine. All the process relating to recovery was completed and recovery memo was prepared on which the accused and witnesses put their signature and a copy thereof was given to accused. Ten gm sample from each packet was taken out for chemical examination and remaining was sealed and thereafter, a case under the N.D.P.S. Act was registered against him. After investigation, charge-sheet was submitted against the accused. The accused appeared before the (Court and the charge under section 8/21 N.D.P.S. Act was framed against him. He denied the charge and claimed trial. 3. The prosecution examined PW-1 SI Satendra Bhadana, PW-2 Sri Vijay Bhushan, SP City, PW-3 SI Vipin Tyagi and PW-4 Akhilesh Pradhan, SHO, who proved the prosecution case and prosecution document such as sight plan, charge-sheet, recovery memo, GD, FIR, consent letter and arrest memo. The learned Trial Court after perusing the evidence on record held the accused guilty and convicted the and sentenced him as aforesaid. 4. Feeling aggrieved, the appellant has filed the present criminal appeal and has challenged the aforesaid impugned judgment and sentence on the ground that the sentence awarded to the appellant is excessive and too severe and bad in the eye of law. The Trial Court did not appreciate the evidence available on record and has wrongly convicted the appellant. The prosecution failed to prove the case and the appellant was entitled for the benefit of lapse of the prosecution. There was contradiction in the evidence of the prosecution witnesses which demolished the whole prosecution case. No witness was examined to prove that the weighing machine was obtained from the nearby hotel and no employee was examined to prove it. The charge-sheet was submitted prior to submission of chemical report. There was contradiction in the evidence of the prosecution witnesses which demolished the whole prosecution case. No witness was examined to prove that the weighing machine was obtained from the nearby hotel and no employee was examined to prove it. The charge-sheet was submitted prior to submission of chemical report. The mandatory provisions of the N.D.P.S. Act were not complied with. The injury of the appellant has not been explained by the prosecution. The lab report clearly suggests that the percentage of the sent drug was 1.995 gm and as per calculation, the weight thereof will arrive at 14.9625 gm of heroine. The said recovery has not been supported by any independent witness. The prosecution version is highly doubtful and, therefore, the impugned judgment is liable to be set aside and the accused appellant is entitled for acquittal. 5. Heard Sri Mohit Singh, learned Counsel for the appellant, Sri Manuraj Singh, Sri L.D. Rajbhar, learned AGA and perused the record. 6. It appears from record that on the date of recovery of heroine from accused, the police team was having prior information, but, even then they did not arrange public witness although, the team was consisted of a number of police personnel and any of them could have been employed to manage the same. From the prosecution evidence itself, it is clear that the place where recovery was made, was a busy place and a lot of people were found around the place. It was not done and search was conducted in presence of only police/departmental witnesses. The clarification given by prosecution witnesses that efforts were made but no person was prepared to be witnesses cannot be considered to be sufficient explanation as it was evening only and it cannot be believed that the raiding team led by SP City and consisted of a number of police personnel was not able to get public witnesses. 7. The absence of independent public witness is very crucial in such type of cases which is totally based on recovery of a banned drug. It is true that it is not always necessary to have a public witness during recovery. 7. The absence of independent public witness is very crucial in such type of cases which is totally based on recovery of a banned drug. It is true that it is not always necessary to have a public witness during recovery. It has been held in Jarnail Singh v. State of Punjab 2011 (73) ACC 448 (SC), and Ajmer Singh v. State of Haryana 2010 (69) ACC 299 (SC), it has been held by the Supreme Court that the obligation to take public witnesses (independent witness) is not ab-solute. 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 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 is believable after taking due care and caution in evaluating their evidence. Therefore, it was incumbent for the police team to conduct search before public witness as it was having prior information and sufficient time to involve public witness during search. But admittedly, no such effort was made by the police team and this further makes the whole search seriously suspicious. 8. It is also notable point that as per prosecution the recovery memo was written by PW-1 Si. Satendra Bhadana on dictation of PW-2 S.P. City who was leading the police team. It was prepared on spot and was read over on which the witnesses and recovery officer put their signature. No signature was obtained of the accused on the recovery memo and a copy was given to him and he put his signature thereafter. It clearly shows that the signature of accused was obtained as a receipt of recovery memo and not on the completion thereof. Therefore, correct procedure was not followed in preparation of recovery memo which is a serious lapse. 9. There is one more lapse committed by prosecution. It has been stated by PW-2 SP Vijaybhushan that the I.O. in this case is junior to him in rank and service both. PW-4 Akhilesh Pradhan was S.O., Mundapande and PW-2 was SP City who is an IPS officer. PW-4 has stated that he received an order from PW-4 to investigate from where the accused obtained heroine. It has been stated by PW-2 SP Vijaybhushan that the I.O. in this case is junior to him in rank and service both. PW-4 Akhilesh Pradhan was S.O., Mundapande and PW-2 was SP City who is an IPS officer. PW-4 has stated that he received an order from PW-4 to investigate from where the accused obtained heroine. PW-1 has also stated that the IO in the present case was junior to PW-2. Clearly, PW-4 IO was a subordinate officer of PW-2 and he conducted the investigation of this case. As such, the influence of the superior officer cannot be denied and therefore the right of accused of fair investigation has been seriously prejudiced. 10. The prosecution case is that the police team obtained weighing machine from Nazar Hotel and the recovered heroine was measured. PW-1 has stated that weight and measurement was obtained from that hotel. He has stated that he did not remember the number of weights but the balance was of small size. In the recovery memo also it has been mentioned that the recovered heroine was weighed by weight and measurement. But, PW-2 has stated that the same was measured by electronic machine obtained from Nazar Hotel. Thus, there is discrepancy in the statement of two witnesses on this point creating doubt as to the weighing of recovered heroine and it also creates serious doubt as to the completion of recovery process. 11. Another argument has been with regard to compliance of mandatory provision of section 50 of N.D.P.S. Act. The learned Counsel to appellant has argued that the search team did not comply with the mandatory provision of section 50 of the N.D.P.S. Act. 12. Section 50 of N.D.P.S. Act is as follows: "Section 50: Conditions under which search of person shall be conducted.--(1) When any officer duly authorized 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). (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. (5) When an officer duly authorized 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 sub-section (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." 13. Section 50 provides reasonable safeguard to the accused before search of his person is made by an officer authorised under section 42 of the Act to conduct search. In State of Punjab v. Baldev Singh 1999 (39) ACC 349 (SC), (Five Judge Bench), it was settled by the supreme Court that search of person under section 50 of the N.D.P.S. Act does not include search & recovery from bag, briefcase and container etc. Section 50 applies where personal search of a person is involved. In T. Hamza v. State of Kerala 1999 (39) ACC 511 (SC), it has been clarified that section 50 has been incorporated to provide statutory safeguard to lend credibility and fairness and to avoid arbitrariness keeping in view the severe punishment prescribed in the statute. It has been further clarified in Megh Singh v. State of Punjab 2004 (50) ACC 128 (SC), that section 50 applies only in case of personal search of a person and does not extend to search of a vehicle, container, bag or premises. It has been further clarified in Megh Singh v. State of Punjab 2004 (50) ACC 128 (SC), that section 50 applies only in case of personal search of a person and does not extend to search of a vehicle, container, bag or premises. In Ajmer Singh v. State of Haryana, 2010 (69) ACC 299 (SC), and Jarnail Singh v. State of Punjab, 2011 (73) ACC 448 (SC), the above view was further affirmed. 14. In Kulwinder Singh v. State of Punjab, 2015 (91) ACC 300 (SC), Where bags containing poppy-husk were seized from truck in his the accused were sitting, it has been held by the Supreme Court that it was not a case of personal search of the accused and section 50 of the N.D.P.S. Act, 1985 was not attracted as section 50 only applies in case of personal search of person and not applicable to search of vehicle, container, bag or premises. 15. In this instant case, the prosecution version is that the illegal heroine was recovered from the accused from the polythene he was carrying in his hand. It was not recovered from the search of his person. This fact has been proved by the prosecution witnesses. But the learned Counsel to appellant has argued that PW-2 has stated that a personal search of the accused was also conducted by the police team. Referring to the judgment in State of Rajasthan v. Parmanand 2014 (85) ACC 662 (SC), it has been argued that where the polythene carried by accused is searched and his person is also searched, section 50 will be applicable. 16. In the recovery memo itself, it has been mentioned that in the search in person of the accused a pocket dairy containing telephone numbers, voter card, a Nokia mobile with airtel sim, an envelope containing two passport size photos, an additional Airtel Sim and 150/- rupees were also recovered from the accused. The recovery of aforesaid items have been proved by PW-1 Satendra Bhadana (SI) and PW-2 SP Vijaybhushan who are witnesses of recovery. Both the witnesses have stated that heroine was recovered from the polythene which was kept in two packets of Glucon-D and other items were recovered from the search of the accused. They have not stated that other items were kept in the same polythene. Both the witnesses have stated that heroine was recovered from the polythene which was kept in two packets of Glucon-D and other items were recovered from the search of the accused. They have not stated that other items were kept in the same polythene. The very nature of other recovered items indicate that they are kept usually by male person in their pocket. This shows that the team made personal search also and therefore, compliance of section 50 N.D.P.S. Act was necessary. 17. Neither in the recovery memo nor in the complaint, it has been anywhere mentioned that the accused was informed by the search team about his right of being searched before a Magistrate or gazetted officer. The reason appears to be that the police team itself was consisted of police officer who was gazetted officer. The learned Trial Court has also given finding that since the recovery officer himself was a gazetted officer, it was not necessary to inform the accused about his right to be searched before gazetted officer nor it was necessary to take him to a Magistrate or gazetted officer. 18. Admittedly, the complainant in this case is SP Vijaybhushan who is the recovery officer and who was leading the search team. Therefore, it has to be seen whether there is no need of compliance of section 50 if the complainant/recovery officer himself is a gazetted officer. In State of Rajasthan v. Ram-chandra 2005 (52) ACC 896 (SC), the supreme Court has observed as follows: "The object of the Act being that the search is conducted in the presence of a superior officer, in order to lend transparency and authenticity to the search, it cannot be held as a principle in law that if a superior officer happens to be with the officer authorized (which the High Court has described as being a member of the raiding party) the position would be different. The conclusion of the High Court would have been correct if the officer proposing to effect the search is a gazetted officer and he gives option to be given under section 50 to the person detained to be searched in his presence. The conclusion of the High Court would have been correct if the officer proposing to effect the search is a gazetted officer and he gives option to be given under section 50 to the person detained to be searched in his presence. In that event, the requirement of section 50 would not be met because the officer proposing to effect the search cannot act in dual capacity; first as an officer authorized under section 42 to search a person and second as the gazetted officer in whose presence the accused may opt to be searched." 19. It is clear from the above observation of the supreme Court that the recovery officer even though he is a gazetted officer, cannot fulfill the requirement of search before a Gazetted Officer within the meaning of section 50. The situation may have been different if such gazetted officer is accompanying the search team and an option is given to the accused or he has subsequently come there where search is to be conducted. In this case the recovery officer himself is Gazetted Officer and he cannot act in dual capacity. If the complainant/recovery officer and gazetted officer will become same, the fairness of recovery process and safeguard provided under section 50 will become nugatory and meaningless. Therefore, search of the accused by PW-2 even though he is a gazetted officer is not legal and will not be a compliance of the mandatory requirement provided under section 50. 20. In State of Punjab v. Baldev Singh 1999 (39) ACC 349 (SC), the Supreme Court held v that conviction recorded only on the basis of possession of the illicit article recovered during a search conducted in violation of section 50 of the N.D.P.S. Act is illegal and an omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right to be searched before a gazetted officer or Magistrate, it would render the conviction and sentence unsustainable. The Supreme Court settled the legal position as under : "(1) 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 ....of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned 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 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. (5) That whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (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 person concerned 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. It has been held in State of Rajasthan v. Ram Chandra 2005 (52) ACC 896 (SC), and Vijaychand Chandubha Jadeja v. State of Gujarat 2011 (72) ACC 286 (SC), that section 50 provides additional safeguard and stress is on adoption of just, fair and reasonable procedure and the first requirement is to inform the suspect about existence of such right. None of the documents prepared during search shows that the search team communicated the accused of his right to be searched before gazetted officer nor his search was conducted before a gazetted officer. In Suresh v. State of MP, 2013 (80) ACC 994 (SC), it has been held that section 50 is mandatory in nature and non-compliance would entail an order of acquittal. 22. From the above discussion, it is clear that the search team did not inform the accused of his right to be searched before a gazetted officer or Magistrate. From the recovery memo and evidence, it is established that accused was searched in person also and the mandatory provision of section 50 was not complied with. The recovery memo was not read over to accused nor his signature was obtained and only a copy thereof was given and signature was obtained. The fact that such copy was given to accused is also doubtful as it has been stated by PW-3 that when the accused was brought to police station, on being searched, no such copy was found from him. The Investigating Officer was a subordinate of the recovery officer/complainant No public witness was associated with recovery of heroine from accused. The learned Trial Court appears to have ignored the above shortcomings and lapse in the prosecution version, recovery process and evidence. 23. The Investigating Officer was a subordinate of the recovery officer/complainant No public witness was associated with recovery of heroine from accused. The learned Trial Court appears to have ignored the above shortcomings and lapse in the prosecution version, recovery process and evidence. 23. In a crime based on recovery of illegal drugs for which stringent provision in terms of procedure and punishment has been provided in the N.D.P.S. Act, it is necessary to ensure free and fair search and investigation without any objectionable features and infirmities. Presumption against innocence based on possession of illegal drug and shifting the burden of proof on accused requires fair and untainted investigation without any glimpse of malice, mischief, doubt, falsity, fabrication undue influence and prejudice to the accused. Fairness and purity in investigation is so necessary for criminal justice administration that without it fair trial will become a mockery and will result in miscarriage of justice. It is held that recovery of illicit article, without complying the mandatory provision of section 50, by a gazetted officer is illegal as the officer cannot act in dual capacity and no conviction can be based on such recovery. 24. On the basis of above discussion I find that the finding of the learned Trial Court in convicting and sentencing the accused suffers from perversity and illegality. The impugned judgment is not sustainable under law and is liable to be set aside. 25. The appeal is therefore allowed. The impugned judgment convicting and sentencing the accused-appellant Anirudh Lal Srivastava alias Anulal in Special Sessions Trial No. 74 of 2011, under section 21-B of N.D.P.S. Act, in crime No. 229 of 2011, P.S. Pakbada, Moradabad is set aside and consequently, accused-appellant Anirudh Lal Srivastava alias Anulal is acquitted. 26. Accused-appellant Anirudh Lal Srivastava alias Anulal be released from jail forthwith. 27. Office is directed to transmit the Lower Court record alongwith copy of this judgment to the learned Court below for information and necessary compliance.