JUDGMENT Hon'ble R. C. Khulbe, J. The present appeal is filed under Section 378 (3) Cr.P.C. by the State challenging the judgment and order dated 23.11.2002, passed by the learned Special Judge (N.D.P.S. Act), Dehradun, in Special Session Trial No.20/2002, under Section 8/20 of N.D.P.S. Act, Police Station Vikas Nagar, District Dehradun whereby the accused/ respondent has been acquitted for the offence punishable under Section 8/20 of N.D.P.S. Act. 2. The factual matrix of the case is that on 06.01.2002 S.I. Navin Chandra Semwal along with Const. Rashid, Const. Kirpal Singh, Const. Mukesh, Const. Jaibir Singh and Const. Anil Kumar proceeded on patrolling and maintaining law and order. When they reached near country-made liquor shop at Dehradun Road, the accused Mahesh Chandra was going just 10-15 steps ahead of them, turning back frequently and looking at them. On suspicion, the police party chased him and apprehended at a distance of 15-20 steps ahead around 21:30 hours. The accused admitted that he had charas. Thereafter, the police party searched each other in the team to ensure that none of them had contraband like charas and tried to procure the public witnesses but no one was ready to witnesses the alleged recovery. The accused was apprised about his right of being searched before a Gazetted Officer but he denied and got ready for search before the Police Officers. On asking about his identity, the accused disclosed his name as Mahesh Chandra. The police party conducted his personal search and recovered charas kept in green polythene from his right. On measuring, the weight of the said contraband was found to be approximately 1kg. On the basis of recovery, recovery memo Ex.Ka-1 was prepared at the spot and chick FIR Ex.Ka-6 was lodged on 06.01.2002 at 23:30 hours at Police Station Harbartpur and the investigation was conducted. 3. After completion of the investigation, charge sheets Ex.Ka-14 was submitted against the accused under Section 8/20 N.D.P.S. Act and cognizance was taken against him. Charges were framed on 17.05.2002 under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, to which he pleaded not guilty and claimed trial. 4. 3. After completion of the investigation, charge sheets Ex.Ka-14 was submitted against the accused under Section 8/20 N.D.P.S. Act and cognizance was taken against him. Charges were framed on 17.05.2002 under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution produced as many as five witnesses, namely, PW1, Sub-Inspector Navin Chandra Sewmal (Arresting Officer), PW2 H.C. Ramesh Chand, formal witness, who lodged the Chick FIR on the basis of recovery memo and prepared G.D., PW3 Const. Mukesh Kumar, who was the part of Arresting Party, PW4 Amar Singh, who took sample of the contraband and submitted the same to the FSL for chemical examination and PW5 Birender Singh (I.O.), who prepared the spot map, recorded statements of witnesses and after completion of investigation submitted charge sheet Ex.Ka-14 against the accused. 5. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded, in which, he denied all the allegations levelled against him and claimed innocence. In defense, no evidence was produced by the accused. 6. After hearing both the parties, the learned trial Court found no evidence on record to prove the case against the accused and, accordingly, acquitted the accused for the offence punishable under Section 8 read with Section 20 of N.D.P.S. Act. Feeling aggrieved by it, the State Government has preferred present appeal against acquittal. 7. I have heard learned Counsel for the parties and perused the evidences and other material available in the record. 8. It is argued by learned A.G.A. for the State that in the trial Court, the prosecution has adduced sufficient evidence to prove the case. The accused was apprehended and arrested by the police party and 1 Kg contraband charas was recovered from his possession. 9. On the contrary, learned Senior Counsel appearing on behalf of the respondent/accused argued that the prosecution has failed to prove the case beyond the reasonable doubt. As per recovery memo, 1Kg contraband charas was recovered from the possession of the accused/ respondent but, in fact, it was not measured and as per recovery memo the said contraband charas was recovered from the personal search of the accused but the arresting party did not comply with the provisions of Section 50 of N.D.P.S. Act. As per recovery memo, 1Kg contraband charas was recovered from the possession of the accused/ respondent but, in fact, it was not measured and as per recovery memo the said contraband charas was recovered from the personal search of the accused but the arresting party did not comply with the provisions of Section 50 of N.D.P.S. Act. Moreover, there is no independent public witness of the alleged recovery. 10. The prosecution produced PW1 Navin Chandra Semwal and PW3 Mukesh Kumar, who were members of the arresting party as per the prosecution story, stated that on 06.01.2002 they along with Const. Mohd. Rashid, Const. Jaibir, Const. Kirpal, Const. Mukesh and Const. Anil were on patrolling duty for maintaining and law in the area and they proceeded from Chowki at 9:30 p.m. When they reached near country-made liquor shop at Dehradun Road, the accused Mahesh Chandra was going just 10-15 steps ahead of them, turning back frequently and nervously looking at them. On suspicion, the police party chased him and apprehended at a distance of 15-20 steps ahead around 21:30 hours. The accused confessed that he had charas. They apprised the accused of his right of being searched before a Gazetted Officer but he denied and gave his consent that he may be searched by the police party. The police party conducted his personal search and recovered 1kg charas from his possession. On the basis of the recovery memo Ex.Ka-1 and statements of PW1 Navin Chandra Semwal and PW2 Mukesh Kumar, prosecution tried to prove that 1 Kg charas was recovered from the personal search of the accused/ respondent. 11. In the present case the arresting party did not comply with the provisions as envisaged in Section 50 of the NDPS Act, which is mandatory as directed by the Hon'ble Apex Court in the State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 . The Constitutional Bench of the Hon'ble Apex Court in Baldev Singh's case laid down the following conditions:- “(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 gazette officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. 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 gazette 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 gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette officer or a Magistrate, may not vitiate the 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. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are left off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50-a. the trial, would render the trial unfair. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50-a. the trial, would render the trial unfair. (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. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act." 12. The Hon'ble Apex Court's judgment is applicable only where the contrabands and psychotropic substances are recovered from the possession of the person. 13. In the State of Himachal Pradesh Vs. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act." 12. The Hon'ble Apex Court's judgment is applicable only where the contrabands and psychotropic substances are recovered from the possession of the person. 13. In the State of Himachal Pradesh Vs. Pawan Kumar (2005) 4 SCC 350 , a three judges bench of the Hon'ble Apex Court held that the search of an article which was being carried out by a person in his hand or on his shoulder or head etc. would not attract Section 50. It was held thus:- “11….In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. therefore, it is not possible to include these articles within the ambit of the word “person" occurring in Section 50 of the Act. 16….After the decision in State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 , this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him." 14. The Hon'ble Apex Court in State of Rajasthan Vs. Parmanand, (2014) 5 SCC 345 has held that: “15 Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application." 15. Before discussing further, it is necessary to assess the facts of the case also. As per recovery memo (Ex.Ka-1), the police party had searched the person of accused-Mahesh Chandra and after personal search the said contraband article was recovered. It is also clear that before conducting the personal search of the accused, the police party only informed the accused about his right to be searched before the Gazetted Officer whereas from the recovery memo it appears that the accused was not apprised of his right as envisaged under Section 50 of N.D.P.S. Act. 16. It is also clear that before conducting the personal search of the accused, the police party only informed the accused about his right to be searched before the Gazetted Officer whereas from the recovery memo it appears that the accused was not apprised of his right as envisaged under Section 50 of N.D.P.S. Act. 16. From the perusal of Section 50 of N.D.P.S. as well as judgment of the Hon'ble Apex Court (supra), it is clear that whenever any personal search is made and contraband article is recovered before conducting the search, the accused must be apprised of his right of being searched before a Gazetted Officer or a Magistrate but in the present case, partial compliance was made by the arresting party. As per Apex Court's judgment, in fact, it is no compliance as envisaged under Section 50 of N.D.P.S. Act. Apart from that, where the accused was apprehended it was a public road and the public witnesses were available. As per the FIR, it was a place where the country-made liquor shop was situated and inspite that the police party did not try to procure the independent public witness. 17. In the recovery memo Ex.Ka-1, it is mentioned that weight of the recovered contraband charas was measured as approximately 1Kg. But it is not clear whether it was exact 1Kg, less or more than 1Kg. Apart from that, the sample was given to PW5 S.I. Birender Singh but after receiving the sample the I.O. did not put his seal on it, which is also admitted by PW5 Birender Singh himself in the cross-examination. After taking the sample where the contraband article was kept, in this regard, no such link evidence is brought on record, which is also admitted by the PW5 Birender Singh. 18. From the impugned judgment and order dated 23.11.2002 passed by the Special Judge (N.D.P.S. Act) Dehradun, it is clear that till that date the said charas was not disposed of by any authority as per the procedure laid down under Section 52(a) of the Act and it was lying before the police without any cause. 19. Section 52 (a) of the Act deals with the provisions of disposal of seized narcotic drugs and psychotropic substances as under:- “52A. 19. Section 52 (a) of the Act deals with the provisions of disposal of seized narcotic drugs and psychotropic substances as under:- “52A. Disposal of seized narcotic drugs and psychotropic substances.— (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyances or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]." 20. From the record, it is clear that the inventory has not been prepared as per the mandate of Section 52(a) of the NDPS as much as certification and photocopy etc. of the recovered contraband has not been done in the present case. 21. In view of the above observations, this Court is of the opinion that the compliance of the mandatory provisions of Section 50 of the NDPS Act has not been done by the prosecution and the prosecution has failed to prove its case against the appellants beyond reasonable doubts. 22. Having reassessed and re-appreciated the entire evidence on record, I concur with the view taken by the Trial Court that the prosecution has failed to prove charge of offence punishable under Section 8 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act against the present accused beyond the reasonable doubt and there is no clinching evidence against the accused. 23. On the basis of aforesaid discussion, I found no illegality and perversity in the impugned judgment and the appeal preferred by the State lacks merit and is, accordingly, dismissed. The judgment and order dated 23.11.2002 passed by the learned Special Judge (N.D.P.S. Act), Dehradun in Session Trial No.20/2002, under Section 8/20 of N.D.P.S. Act, Police Station Vikas Nagar, District Dehradun, whereby the accused has been acquitted for the offence punishable under Section 8 of read with Section 20 N.D.P.S. Act, is hereby affirmed. 24. Let the lower court record be sent back.