JUDGMENT : 1. This appeal is directed against the judgment and order, dated 11.06.2018, passed by the learned Special Judge (NDPS) Act, West Sessions Division at Bomdila in NDPS Case No. 01/2017, under Section 20(B) of the NDPS Act. It is to be noted here that vide impugned judgment and order, dated 11.06.2018, the learned Court below has convicted the accused appellant under Section 20 (B) of the NDPS Act and sentenced him to suffer rigorous imprisonment for 10 (ten) years and also to pay a fine of Rs. 1,00,000/-(Rupees one lakh) only, in default to undergo rigorous imprisonment for another 6 (six) months and further, it is provided that the detention period, underwent during investigation and trial, is to be set off as per provision of law. 2. The factual background, leading to filing of the present petition, is briefly stated as under: “On 15.12.2016, SI/GD Neeraj Kr. Sharma, I/C ‘C’ Coy, 4200 chain, 61st BN, SSB, B/Kunda, Assam, launched special operation in the AOR of ‘C’ Coy 4200 chain. During the operation, they found some group of persons in the forest carrying Ganja Bags on their head and when the SSB team called them to stop; they ran away by throwing their bags towards the hilly side. They could apprehend one of them, namely, Shri Swarangsa Bosumatary, S/o Shri Santosh Bosumatary of Dhimachang Village, PO-Patakpur, PS-Mazbat, Distt. Udalguri, Assam, and seized 10 Kgs of Ganja and Rs. 11,000/-of Indian currency note from his possession at about 21.15 hrs., and handed him over to the Officer-in-Charge, Balemu Police Station and lodged one FIR on 16.12.2016. On receipt of the FIR, the Officer-In-Charge Balemu Police Station, West Kameng District, Arunachal Pradesh, registered Balemu P.S. Case No. 16/2016, under Section 20(B) of the NDPS Act and he investigated the same. During investigation, he has visited the place of occurrence, examined the witnesses and seized the Ganja and Rs. 11,000/-Indian currency note on being produced at the Police Station by the complainant, Neeraj Kr. Sharma, in presence of witnesses. He, then, drawn up sample from the seized Ganja and forwarded one of the sample to the FSL for examination. He also arrested the accused, Shri Swarangsa Bosumatary, and forwarded him to the Court. 11,000/-Indian currency note on being produced at the Police Station by the complainant, Neeraj Kr. Sharma, in presence of witnesses. He, then, drawn up sample from the seized Ganja and forwarded one of the sample to the FSL for examination. He also arrested the accused, Shri Swarangsa Bosumatary, and forwarded him to the Court. He then collected the FSL Report and on completion of investigation and having found prima facie case against the appellant, laid Charge-Sheet before the Court to stand trial under Section 20(B) of the NDPS Act. Accordingly, the appellant appeared before the learned Court below. Then hearing learned Advocates of both sides, and considering the materials available on record and the Case Diary, the learned Court below has framed charge against the appellant under Section 20(B) of the NDPS Act and on being read and explained over, the appellant pleaded not guilty to the same. Thereafter, the learned Court below has examined as many as 6 (six) witnesses and after closing the prosecution witnesses, the learned Court below has examined the appellant under Section 313 of the Cr.P.C. and, thereafter, hearing arguments the learned Advocates of both sides and having found the charge proved, convicted the appellant under Section 20(B) of the NDPS Act and sentenced him, as aforesaid.” 3. Then, being highly aggrieved, the appellant preferred this Appeal on the following grounds: (i) That, the learned Court below convicted the appellant without any legal evidence against him; (ii) That, though the prosecution side has examined as many as 6 (six) witnesses, yet, out of those witnesses, none of them could identify the appellant in the Court; (iii) That, the search and seizure was not made in presence of gazetted officer as required under Section 50 of the NDPS Act; and (iv) That, the FSL expert has not been examined here in this case to prove the FSL report; (v) That, the Investigating Officer has failed to weigh the seized cannabis and sample of which is not produced before the Court at the time of trial and, therefore, it is contended to allow the appeal. 4. I have heard Mr. K. Bhattacharjee, learned counsel for the appellant. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent. 5. Mr. Bhattacharjee, learned counsel for the appellant, submits that the appellant was allegedly apprehended on 15.12.2016, with Ganja and Indian currency note. 4. I have heard Mr. K. Bhattacharjee, learned counsel for the appellant. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent. 5. Mr. Bhattacharjee, learned counsel for the appellant, submits that the appellant was allegedly apprehended on 15.12.2016, with Ganja and Indian currency note. But, the F.I.R. was lodged only on 16.12.2016, at around 11.00 a.m., and as such, there is delay in lodging the F.I.R. and the same has not been explained. Mr. Bhattacharjee further submits that the search and seizure was not made in presence of Gazetted officer, as required under Section 50 of the NDPS Act and as mandatory provision has not been followed, the conviction of the appellant cannot sustain. Mr. Bhattacharya further submitted that the seized contraband substances have not been weighed properly by the seizing officer and the weight scale that was used to weigh the substance was not seized. Referring to the evidence of prosecution witnesses, Mr. Bhattacharjee, learned counsel for the appellant, submits that none of the witnesses could identify the appellant in the Court and that the appellant was apprehended by one Sohan, Constable, as per evidence of P.W.-2, Shri Neeraj Kr. Sharma, but the said Constable has not been examined as witness here in this case. Besides, there is no independent witness and, therefore, Mr. Bhattacharjee contended to set aside the impugned judgment and order of the learned Court below. Mr. Bhattacharjee has also referred following case laws in support of his submissions: (i) Vyas Ram @ Vyas Kahar & Ors. Vs. State of Bihar, reported in (2013) 12 SCC 349 ; (ii) Vijay Pandey Vs. State of Uttar Pradesh, reported in (2019) 18 SCC 215 ; and (iii) Md. Ayub Vs. State of Assam, reported in 1998 (1) GLT 65. 6. Per contra, Mr. T. Ete, learned Additional Public Prosecutor, in his usual fairness, submits that since the identity of the appellant has not been proved by the prosecution witnesses, the other points raised by Mr. Bhattacharjee, learned counsel for the appellant, is more or less academic and, therefore, Mr. Ete, learned Additional Public Prosecutor, contended to dispose of the appeal on the basis of materials available on record. 7. Bhattacharjee, learned counsel for the appellant, is more or less academic and, therefore, Mr. Ete, learned Additional Public Prosecutor, contended to dispose of the appeal on the basis of materials available on record. 7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the grounds taken in this appeal and the record of the learned Court below and the case laws referred by Mr. Bhattacharjee, learned counsel for the appellant. 8. It appears from the record that the occurrence took place on 15.12.2016, at about 21.45 hours, at Dhimachang Village Forest area. But the F.I.R. was lodged on 16.12.2016, at 11.00 hours. So, there is delay of more than 12.00 hours in lodging the F.I.R. and the same has not been explained here in this case, Mr. Bhattacharjee, learned counsel for the appellant, has rightly pointed this out during argument. Though in all the cases where delay has not been explained by the prosecution side is not fatal, yet, the same is sufficient to raise a doubt about the veracity of the prosecution version. 9. It also appears from the evidence of the prosecution witnesses that while the appellant was apprehended at the forest of Dhimachang Village, with one bag containing 10 Kgs of Ganja and Rs. 11,000/-, but the search and seizure has not been done by him in presence of any Gazetted officer as required under Section 50 of the NDPS Act. The section read as under:- 50. Conditions under which search of persons shall be conducted.— (1) 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. (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. (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. 1[(5) When an officer duly authorised 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.] 10. In the case of Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655 , a three-Judge Bench of Hon’ble Supreme Court has considered the requirements of Sections 42 and 50 of the Act and held that for failure to comply with the provisions of Sections 42 and 50, the accused was entitled to an order of acquittal and consequently the appeal was allowed and the order of conviction and sentence against the accused was set aside. 11. Again in the case of the State Of Punjab vs. Baldev Singh [ (1999) 6 SCC 172 ] a Constitutional Bench of Hon’ble Supreme Court had occasioned to deal with the issue and held as under:- “There is, thus, unanimity of judicial pronouncements to the effect 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. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. The safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right under Section 50, because after Maneka Gandhi v. Union of India, (1978) 1 SCC 248 , it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not reasonable, fair and just and when a statute itself provides for a just procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the reasonable, fair and just procedure and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be fair, just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law.” 12. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law.” 12. Now, turning to the factual matrix of the case in hand, I find that neither the complainant (P.W.2), nor the Officer-in-Charge, Balemu P.S. (P.W.6) has complied with the mandatory provision of Section 50 of NDPS Act. The complainant has conducted the search of the person of the appellant and recovered Indian currency Note amounting Rs. 11,000/ and 10 kg of Ganja without informing the appellant about his right to be searched in presence of Gazetted officer or Magistrate. As the mandatory provision has been violated here in this case, the procedure followed by the officials responsible for the enforcement of law, cannot be considered to be fair, just or reasonable procedure and it cause serious dent to the prosecution case. 13. Further, it appears from the prosecution witness that identity of the appellant has not been established by the prosecution witnesses. The prosecution side has examined the complainant, Neeraj Kr. Sharma, as P.W.-2. His evidence reveals that while he was posted at 4200 chain from 2015 to 2016 March, under Headquarter of 61st Bn SSB Bairokund, on 15.06.2016, he seized Ganza weighing 10 Kg and Indian currency note of Rs. 11,000/-, from Dimachang Forest area, Arunachal Pradesh, in the capacity of Operation Commander. His evidence also reveals that they found 5 to 6 persons, at about 9 to 10 p.m., in the Dimachang Forest area, and on query, the persons ran away. But they have apprehended appellant with a small bag of suspected contraband and on the next date, he handed over the appellant to police at Balemu Police Station and the person apprehended by him is known as Basumatary. But, cross-examination of this witness reveals that, on his instruction, the appellant was apprehended by Constable Sohan. It is also elicited that he does not recognized the person standing in the dock of the Court as the same person, whom they had apprehended. It is also elicited that he named the appellant on his own assumption. 14. But, cross-examination of this witness reveals that, on his instruction, the appellant was apprehended by Constable Sohan. It is also elicited that he does not recognized the person standing in the dock of the Court as the same person, whom they had apprehended. It is also elicited that he named the appellant on his own assumption. 14. Thus, what is transpire from the evidence of this witness is that he is not sure as to whether the person standing trial is the same person whom they have apprehended and he deposed before the Court only on assumption. It is also apparent from his evidence that the appellant was apprehended by Constable Sohan. But, the said Constable has not been examined here in this case as prosecution witness and rendering thereby the evidence of P.W.2 unworthy of credence. 15. P.W.-1 is one Shri Shailesh Kumar, who was also attending duty along with P.W.-2 on that day. Though he confirmed about seizure of 10 Kgs of Ganja and Indian currency note amounting to Rs. 11,000/-, on 15.12.2016, vide Seizure List, (P.Ext.1) yet, he could not identify the person standing trial in the Court. 16. P.W.-3, Shri Shahab Khan, P.W.-4, Shri Bijay Goswami, and P.W.-5, Shri Satyam Kumar, who were also on duty with the complainant, could not identify the appellant at the time of trial. However, P.W.-4, Shri Bijay Goswami, has confirmed his signature over the seizure list Ext.3 (A). P.W.-6 is the Investigating Officer, who received the appellant and 10 Kgs of Ganja and Rs. 11,000/-at Balemu Police Station on 16.12.2016, at about 11.00 hours, along with the F.I.R; upon which, he registered the Balemu P.S. Case No. 16/2016, under Section 20(B) of the NDPS Act and started the investigation and he drawn up sample from the seized Ganja and forwarded the same to the FSL. He also caused arrest of the appellant and forwarded him to the court, and after completion of investigation and after collecting the FSL report, P/Ext. 7, he laid Charge-Sheet, P/Ext. 10, against the appellant. It is elicited in his cross-examination that he did not produce the appellant before the Magistrate for search and seizure and the seizure was made by the informant and at that time also, the informant has not produced him before the Magistrate for search and seizure. 17. 7, he laid Charge-Sheet, P/Ext. 10, against the appellant. It is elicited in his cross-examination that he did not produce the appellant before the Magistrate for search and seizure and the seizure was made by the informant and at that time also, the informant has not produced him before the Magistrate for search and seizure. 17. Thus, having tested the evidence adduced by the prosecution witnesses with the yardstick of probabilities, its intrinsic value and the animus of witnesses, we find that the same failed to withstand the test in establishing the identity of the appellant beyond all reasonable doubt. In the case of Vyas Ram (supra), referred by Mr. Bhattacharya, the learned counsel for the appellant, Hon’ble Supreme Court has held that identity of the accused has to be established by adducing cogent evidence. While the identity of the appellant has not been proved beyond all reasonable doubt, the other point so raised by Mr. Bhattacharjee, learned counsel for the appellant, is more or less academic. 18. It also appears that while the complainant and the I.O. have seized contraband substance, they have not weighed same properly and the weight scale also not seized herein this case. Mr. Bhattacharyee has rightly pointed this out in his argument, and I find substance in the same. It is apparent that the seizure has not been done properly. Besides, the seizure has not been done in presence of independent witnesses. It is also the requirement of law that immediately after the seizure, sealing of the seized article has to be done. In the case of Md. Ayub (supra) it has been held that sealing of seized articles have to be done immediately on seizure so as to rule out the possibility of being tampered with. Here in this case the appellant was apprehended with the contraband substance at about 21.15 Hrs on 15.12.2016 and he was handed over to the Officer-in-Charge of Balemu P.S. at about 11.00 hrs on 16.12.2016. The Complainant has seized the same immediately after the apprehension, but did not seal the same till 11.00 hrs of 16.12.2016. Thus, possibility of the articles being tampered with cannot be ruled out. 19. Further it appears that the prosecution side has failed to examine the FSL expert, who has examined the sample of seized article, though the report is exhibited in the court as M/Ext. 7. Thus, possibility of the articles being tampered with cannot be ruled out. 19. Further it appears that the prosecution side has failed to examine the FSL expert, who has examined the sample of seized article, though the report is exhibited in the court as M/Ext. 7. It is the bounden duty of the prosecution side to prove the report and to co-relate the same with the sample seized from the appellant. Mr. Bhattacharyee, the learned counsel for the appellant, has rightly argued on this point and the case law i.e. Vijay Pandey (supra), referred by him also supported his submission. In the aforementioned case, it has been held that “the failure of the prosecution to relate the seized sample with that seized from the appellant makes the case no different from the failure to produce the seized sample itself. In the circumstances, mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be correlated.” 20. In view of above discussion and finding it can safely be concluded that the finding of guilt of the appellant, so recorded by the learned Court below, and the sentence so handed down upon him, suffers from serious infirmity requiring interference of this Court. Thus, I find sufficient merit in this appeal and, accordingly, the same stands allowed. The judgment and order, dated 11.06.2018, passed by the learned Special Judge (NDPS) Act, West Sessions Division at Bomdila in NDPS Case No. 01/2017, under Section 20(B) of the NDPS Act, stands set aside. It is, however, submitted at the Bar that the appellant has already been enlarged on bail as per order of this court. As mandated by section 437A Cr.P.C., the bail bond, so furnished by the appellant, shall be in force for six months.