JUDGMENT : 1. The State has filed the present appeal filed under Section 378(3) of the Code of Criminal Procedure against the judgment dated 28.02.2011 passed by the learned Special Judge, Chamba, District Chamba, H.P. (hereinafter referred to as the ‘trial Court’). 2. By way of judgment dated 28.02.2011, the learned trial Court has acquitted the respondents (hereinafter referred to as the ‘accused persons’) from the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’). 3. Brief facts, leadings to the filing of the present appeal, before this Court, may be summed up as under:- On 19.06.2010 ASI Vinod Singh, Incharge, Police Post, Sultanpur has forwarded a ‘Rukka’ to the Police Station Chamba disclosing therein that he, alongwith other police officials, was on picketing and traffic checking duty and was present at “Bhataluan bridge”. When, he was checking the vehicles, then, at about 3.30 p.m. one scooter was noticed, being driven by its driver, coming there, from Chamba side. 3.1 Apart from the driver, one pillion rider was also there on the scooter. On seeing the police party, the driver stopped the scooter, at a distance of about 15-20 meter away and tried to return back and to flee away, upon which, the pillion rider, who was having the rucksack, on his back, had thrown the said rucksack towards the scooter driver and fled away. The said person was nabbed at a distance of 20-25 meter. Meanwhile, the scooter driver also made efforts to flee away along-with the rucksack, however, he was also nabbed. 3.2 From the activities of the said persons, ASI developed a suspicion, in his mind, that the said persons might be having some illegal article or narcotic substance in their possession, as such, keeping in view their activities, ASI has associated Harish Chand son Tara Chand, HC Uttam Chand and HHC Raj Kumar and inquired about the name of those persons. (Both the accused persons). 3.3 On inquiry, the pillion rider has disclosed his name as Kuljeet Singh son of Gurbax Singh and scooter driver has disclosed his name as Suresh Kumar son of Joginder Singh. (Both the accused person). 3.4 Thereafter, the IO had obtained the written consent of aforesaid persons regarding their personal search and search of their rucksack. (Both the accused persons). 3.3 On inquiry, the pillion rider has disclosed his name as Kuljeet Singh son of Gurbax Singh and scooter driver has disclosed his name as Suresh Kumar son of Joginder Singh. (Both the accused person). 3.4 Thereafter, the IO had obtained the written consent of aforesaid persons regarding their personal search and search of their rucksack. After obtaining their consent to be searched by the police, the rucksack was searched. On its checking, a plastic envelop was found in it. On opening the same, charas was found in it. On weighment, the charas was found to be 3.750kgs. 3.5 Other codal formalities were completed on the spot and accused persons were arrested. After receipt of the positive report from FSL, Junga, the police has filed the challan, for the commission of the offence punishable under Section 20 of the NDPS Act against the accused. 4. The learned trial Court, on the basis of the report under Section 173(2) Cr.P.C found a prima-facie case, for the commission of the offence, punishable under Section 20 of the NDPS Act against both the accused and accordingly, both of them were charge-sheeted. 5. When, the charge, so framed, put to the accused persons, they have not pleaded guilty and claimed trial. 6. Since, the accused persons have not pleaded guilty, as such, the prosecution has been directed to adduce evidence, to prove the charge, against the accused persons. 7. Consequently, the prosecution has examined as many as nine witnesses. 8. After closure of the prosecution evidence, the entire incriminating evidence, appearing against the accused persons, was put to them, in their statements, recorded under Section 313 Cr.P.C. 9. The accused persons have denied the entire prosecution case and took the plea that they are innocent persons and have falsely been implicated, in this case. 10. However, the accused persons have not opted to lead evidence, in defence. 11. Thereafter, the learned trial Court, after hearing the learned Public Prosecutor and the learned defence counsel has acquitted the accused persons from the charge framed against them, in this case, vide judgment dated 28.02.2011. 12. 10. However, the accused persons have not opted to lead evidence, in defence. 11. Thereafter, the learned trial Court, after hearing the learned Public Prosecutor and the learned defence counsel has acquitted the accused persons from the charge framed against them, in this case, vide judgment dated 28.02.2011. 12. Feeling aggrieved from the judgment of acquittal, the present appeal has been filed by State before this Court assailing the findings, so recorded by the learned trial Court on the ground that the evidence, adduced by the prosecution, has not been considered by the learned trial Court in its proper perspective and the version of the prosecution witnesses has simply been discarded without assigning cogent reasons. Highlighting the deposition of PW-3, PW-4 as well as the official witnesses, it has been argued by Mr. J.S. Guleria, learned Deputy Advocate General that contraband was recovered from the conscious possession of the accused and all the witnesses have supported the prosecution case on material aspects. 13. The chain of evidence is stated to be completed in this case and the IO has completed all the codal formalities in this case. These facts, according to learned Deputy Advocate General, have not been taken into consideration by the learned trial Court, in this case. 14. Lastly, the findings of the learned trial Court have been assailed on the ground that the evidence of the official witnesses is confidence inspiring and there was no occasion for the learned trial Court to discard the trustworthy statements of the official witnesses. 15. Thus, it has been prayed that the present appeal may kindly be accepted by setting aside the judgment of acquittal and the accused persons may kindly be convicted, for the offence, for which, they have been charge-sheeted, in this case. 16. Per contra, Mr. N.K. Thakur, learned Senior Advocate assisted by Mr. Divya Raj Singh, Advocate has supported the judgment of acquittal on the ground that the story put forth by the I.O in this case is highly improbable and from the evidence of the official witnesses, it has primafacie been proved on record that the things were not happened, on the spot, as deposed by these witnesses. Divya Raj Singh, Advocate has supported the judgment of acquittal on the ground that the story put forth by the I.O in this case is highly improbable and from the evidence of the official witnesses, it has primafacie been proved on record that the things were not happened, on the spot, as deposed by these witnesses. Highlighting the fact that the alleged independent witnesses, who have been associated, in this case, when, called, in the witness box, has not supported the case of the prosecution and despite of the best efforts made by the learned Public Prosecutor, nothing material could be elicited from him. Apart from this, it has also been argued by learned Senior Advocate that the mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with by the I.O. and the learned trial Court has rightly taken, all these factors, into consideration and thus passed a reasoned judgment, which requires to be upheld by this Court. Thus, a prayer has been made to dismiss the appeal. 17. Arguments heard and file perused with the active assistance of the learned counsel for the parties. 18. In order to decide the matter, in an effective manner, it would be just and appropriate for this Court to discuss the evidence of the star witnesses examined by the prosecution in this case. 19. The Investigating Officer of the case is PW-9. According to this witness, on 19.06.2010, he, along-with HC Uttam Chand, LHC Raj Kumar, HHG Pankaj Kumar, HHG Man Singh and HHG Ranjit Singh, went to Bhataluan bridge in Government vehicle No. HP-73-0919 for picketing duty by recording departure report Ext.PW-9/A. They had left the Police Post, Sultanpur at about 1.30 in the noon and were on the way towards Mangla. At about 2.30 p.m., they had put a picketing at Bhataluan bridge, some vehicle were challaned. 19.1 At about 3.30 p.m. they noticed one scooter being driven by its driver coming from Chamba side bearing registration No. HP-48-4453. One pillion rider was also on the scooter. 19.2 On seeing the police, the driver stopped the scooter and trying to flee away from the spot towards Chamba side. Upon this, a suspicion had arisen in the mind of the I.O. The pillion rider was having a rucksack on his shoulder and he threw the same on the driver and tried to flee away. 19.2 On seeing the police, the driver stopped the scooter and trying to flee away from the spot towards Chamba side. Upon this, a suspicion had arisen in the mind of the I.O. The pillion rider was having a rucksack on his shoulder and he threw the same on the driver and tried to flee away. He was apprehended at a distance of 15-20 steps from the scooter. 19.3 Thereafter, the driver had also made unsuccessful attempt to flee away, but was nabbed. 19.4 On inquiry, the driver disclosed his name as Suresh Kumar (accused No.1) whereas the pillion rider disclosed his name as Kuljeet (accused No.2). 19.5 Thereafter, the options, as per Section 50 of the NDPS Act were given to them regarding their search by a Gazetted Officer, Magistrate or by the police, upon which, both of them had consented to be searched by the police present there. In this regard, the consent memos Ext.PW3/A, and Ext.PW-3/F were prepared. 19.6 After giving the personal search to the accused, the I.O. had opened the rucksack, the same was found containing the charas, which, on weighment, was found to be 3.750Kgs. 19.7 The other codal formalities were completed on the spot regarding sealing of the case property. 19.8 Thereafter, the rukka Ext.PW-9/A was prepared and forwarded to Police Station, Sadar, District Chamba, H.P., through Constable Raj Kumar for registration of the case and copy of the same was given to the same Constable, for being handed over to Superintendent of Police Chamba, for his information. 19.9 Thereafter, the site plan was prepared and the statements of the witnesses were recorded, as per their version. NCB forms, in triplicate, were also filled on the spot. Special report was also prepared and the same was sent to SP, Chamba through HHC Kartar Singh. 19.10 After the receipt of the chemical examiner report, the file was submitted to the SHO for preparing the challan. 19.11 In the cross-examination by learned counsel for the accused, this witness has deposed that before reaching the spot, they had stopped, on the way at Sultanpur and Obri Chowk for 15 minutes each. All the police officials as mentioned in the examination-in-chief were with him. However, this fact was not recorded in the statement of any of the witness. He has denied that from 2.30 to 3.30 p.m., he returned back to the Police Post, Sultanpur. All the police officials as mentioned in the examination-in-chief were with him. However, this fact was not recorded in the statement of any of the witness. He has denied that from 2.30 to 3.30 p.m., he returned back to the Police Post, Sultanpur. He has also denied that thereafter, he had telephonically directed the police officials to lay a picketing, but admitted that the picketing was done at his instance. 19.12 The pillion rider could run only for 10-15 steps from the scooter, when, the driver was apprehended, the engine of the scooter was switched off. However, the driver made efforts to start it. Accused Kuljeet was chased by Raj Kumar and accused Suresh was chased by this witness. But this fact has not been recorded in the statement of Raj Kumar. 20. PW-3 HC Uttam Chand was also member of the police team headed by PW-9. He has supported the IO on all the material aspects of the case. He has feigned his ignorance as to whether the IO had given the option regarding the personal search of the accused after preparing the seizure memo. 20.1 According to the cross-examination of this witness, PW-8 Harish Kumar is a resident of Sultanpur. He was having his shop near Police Post, Sultanpur. Said Harish Kumar met them near Bhataluan bridge at about 3:15 p.m. The scooter was noticed by them at a distance of 15-20 meter and same was apprehended by them while negotiating a curve. Site plan Ext. D-A was prepared in his presence and he has admitted that the picketing was done at point ‘B’. He has admitted that in the site plan Ext. D-A, there is no curve between at point ‘A’ where, the accused persons were nabbed from point ‘B’ where the nakka was laid. According to him, the bag was thrown by the pillion rider on the lap of the driver. 20.2 In his further cross-examination, a new story by this witness was introduced by stating that both the accused had tried to run away on the scooter and police party had chased them on foot. A vague statement was made by him by stating that the almost all the officials were present on the spot and both the accused were apprehended when they were on scooter. He has admitted that a person eventuality running could not chase a person who was on the moving scooter. A vague statement was made by him by stating that the almost all the officials were present on the spot and both the accused were apprehended when they were on scooter. He has admitted that a person eventuality running could not chase a person who was on the moving scooter. 21. PW-4 is also member of the raiding party. He has also supported the version of the IO on almost all material facts. This witness remained on the spot upto 3:30 p.m and rukka was given to him at about 4:30 p.m. The consent memo papers were prepared within 15-20 minutes and search was taken within 15-20 minutes. Rukka was handed over to this witness after completion of the entire proceedings. This witness was called from police station to Police post Sultanpur by ASI Vinod Singh for picketing. The instructions were with regard to the picketing. Harish met them at the bridge of Bhataluan at about 3:15 p.m. He was directed by the IO to be there. The bag was thrown from about 15-20 meter by the pillion rider. Rest he has denied the other suggestions, which have been given to this witness by learned defence counsel. 22. PW-8 Harish Kumar is the independent witness associated by the IO in this case. According to this witness, he was present at his shop near Police Post, Sultanpur. One Head Constable came to him at about 3.00-4.00 p.m. and took him inside the police post, where he was directed to put signatures on same papers. 22.1 Since this witness has not supported the case of the prosecution, as such, on the request of learned Public Prosecutor, this witness has been declared as hostile by the learned trial Court and learned Public Prosecutor has been permitted to cross-examine this witness. 22.2 Despite of the best efforts made by the learned Public Prosecutor, except his admission about signatures over memos Ext.PW-3/A to Ext.PW-3/D and Ext.PW-3/F, nothing material could be elicited from him. 22.3 In the cross-examination by the learned defence counsel, he has admitted that his tea stall is adjacent to the Police Post, Sultanpur and this witness is in the habit of frequently visiting the police post. 23. Rest of the witnesses are with regard to the link evidence. 24. This is the entire evidence adduced by the prosecution in this case. 25. 23. Rest of the witnesses are with regard to the link evidence. 24. This is the entire evidence adduced by the prosecution in this case. 25. The learned trial Court has acquitted the accused persons, in the present case, on the ground that the provisions of Sections 42 and 50 of the NDPS Act have not been complied with by the IO and on the ground that noncompliance of above two provisions, vitiates the trial against the accused. 26. Apart from this, the learned trial Court has also taken into consideration the factum that the alleged eye witness PW-8 has not supported the version of the IO, as such, according to the learned trial Court, the prosecution could not establish the case against the accused persons as per requirement of law. 27. These findings have been assailed by the State before this Court, in the present appeal. 28. So far as the findings of the learned trial Court, qua the non compliance of Section 42 of the NDPS Act are concerned, in this case, it is not the case of the prosecution that the police party or Investigating Officer was having any prior information regarding the transportation of the charas by the accused. Para 11 to 14 of the judgment do not contain any reason as how the learned trial Court has concluded that the provisions of Section 42 of the NDPS Act are being applicable in the present case, as it is the specific stand of the prosecution, in the shape of the statement of Investigating Officer PW-9 ASI Vinod Singh that on 19.06.2010, he, alongwith the other police officials, was present at Bhataluan bridge and they had led a picketing there. They had challaned some vehicles and thereafter, the accused persons, allegedly came there on Scooter bearing registration No. HP-48-4453. The entire statement of PW-9 does not contain a single whisper that they were having any prior information regarding the indulgence of the accused persons in transporting the contraband. The case, as set up by the prosecution in this case, is squarely falls within the definition of “chance recovery”. 29. The entire statement of PW-9 does not contain a single whisper that they were having any prior information regarding the indulgence of the accused persons in transporting the contraband. The case, as set up by the prosecution in this case, is squarely falls within the definition of “chance recovery”. 29. The learned trial Court, in the present case, has also concluded that there is non-compliance of Section 42 of the NDPS Act, on the basis of the fact that the police was having the prior information on the fact that they had put a picketing at a particular place at Bhataluan and there was no occasion for the Investigating Officer to take PW-8 Harish Kumar with them or calling PW-4 Raj Kumar at the spot. The statement of the witness is to be considered as a whole, not in the piecemeal. 30. PW-3 in his cross-examination has specifically deposed that PW-8 Harish Kumar is a resident of Sultanpur and he was having a shop near P.P. Sultanpur. However, he met them near Bhataluan mode at about 3:15 p.m., where the police party was checking the vehicles. The distance of the spot from Police Station Chamba is stated to be 10 k.m., and presence of PW-8 Harish Kumar, at the spot, cannot be doubted merely on the ground that he is having a shop nearby P.P. Sultanpur. 31. No doubt, PW-4 in his cross-examination has deposed that he was called from Police Station Chamba to P.P. Sultanpur by ASI Vinod Singh for laying a nakka. From this stray sentence of this witness, no inference could be drawn that the police party was having prior information, as in the departure report Ext. PW-9/A, three purposes have been mentioned i.e. patrolling, picketing and traffic checking duty. Moreover, it is not unnatural for the law enforcement agency i.e. police to lay nakka (picketing) as the said work is a routine work of the police. Moreover, there is nothing on the file even to suggest that the nakka was not led within the territorial jurisdiction of Police Station Chamba as well as P.P. Sultanpur. 32. At the sake of repetition, there is nothing on the file, even to suggest that the police party, which was present at the spot, was having any prior information, with regard to the involvement of the accused, in the transportation of the contraband i.e. charas. 32. At the sake of repetition, there is nothing on the file, even to suggest that the police party, which was present at the spot, was having any prior information, with regard to the involvement of the accused, in the transportation of the contraband i.e. charas. The Hon’ble Apex Court, in State of Punjab versus Baldev Singh, reported in (1999) 6 Supreme Court Cases 172, have categorically held that where the seizure of the contraband is from a public place, then, provisions of Section 43 of the NDPS Act are applicable, not Section 42 of the NDPS Act. The relevant paragraph of the judgment is reproduced as under:- 10. “The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide subsection (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to subsection (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.” 33. The said decision has again been reiterated by Hon’ble Apex Court in SK Raju @ Abdul Haque @ Jagga vs. State of West Bengal 2018(10) SCALE 730 . The relevant paragraph of the judgment is reproduced as under:- 6. The said decision has again been reiterated by Hon’ble Apex Court in SK Raju @ Abdul Haque @ Jagga vs. State of West Bengal 2018(10) SCALE 730 . The relevant paragraph of the judgment is reproduced as under:- 6. We are unable to accept the submission made by the learned counsel for the appellant that Section 42 is attracted to the facts of the present case. In State of Punjab v Baldev Singh (“Baldev Singh”), Chief Justice Dr A S Anand speaking for a Constitution Bench of this Court, held: “The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.” [Emphasis supplied] In Narayanaswamy Ravishankar v Assistant Director, Directorate of Revenue Intelligence, a three judge Bench of this Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held: “In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Answering the above question in the negative, the Court held: “In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant.” In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan, a two judge Bench of this Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held: “Section 42 comprises of two components. One relates to the basis of information i.e.: (i) from personal knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Subsection (2) mandates, as was noted in Baldev Singh case that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, subsection (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place.” 34. If the facts and circumstances of the present case are seen in the light of the decision of Hon’ble Apex Court in Baldev Singh (supra) case, then, it cannot be said that the police was having any prior information regarding the indulgence/involvement of the accused persons in the transportation of charas. 35. If the facts and circumstances of the present case are seen in the light of the decision of Hon’ble Apex Court in Baldev Singh (supra) case, then, it cannot be said that the police was having any prior information regarding the indulgence/involvement of the accused persons in the transportation of charas. 35. The police party was on patrolling as well as traffic checking duty, as deposed by the Investigating Officer. The relevant portion of his statement is reproduced as under:- “We proceeded from PP Sultanpur at 1:30 p.m. and was on way towards Mangla. I laid a nakka at 2:30 p.m. at Bhataluan Bridge. Some vehicles were challenged. By about 3:30 p.m. one scooter came from Chamba side bearing No. HP-48-4453 carrying two persons.” 36. Even otherwise, in the departure report Ext. PW- 9/A, the Investigating Officer got recorded the factum that the police party in the official vehicle bearing registration No. HP- 73-0919 has left the Police Post Sultanpur for patrolling picketing and traffic checking duty, as such, the findings of the learned trial Court qua non compliance of Section 42 of the NDPS Act do not sustain in the judicial scrutiny by this Court, thus, the findings of the learned trial Court qua non compliance of Section 42 of NDPS do not sustain, in the judicial scrutiny by this Court. 37. The learned trial Court has also held that there is non- compliance of provision of Section 50 of the NDPS Act of the case. The provisions of Section 50 of the NDPS Act are reproduced 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. (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.] 38. According to the deposition of the Investigating Officer, when, the accused persons were nabbed, then, their names were ascertained and thereafter, options, as per the provisions of Section 50 were given to them by stating that if they want to get their personal search carried, then, they could give their search to Magistrate, Gazetted Officer or to the police, upon which, both the accused persons have opted to be searched by the Police. Investigating Officer has prepared the consented memos in this regard as Ex. PW-3/A and Ex. PW-3/F. By virtue of the above documents, the Investigating Officer had expressed his suspicion against the accused persons that they might be having some illegal articles or Narcotic Substance, as such, the options were given to them for their personal search, as well as search of their rucksack, upon which, above two documents, were prepared. Whereas, the Investigating Officer, when appeared in the witness box, introduced a different story by deposing that he had given the options to the accused persons regarding their search as well as search of their rucksack by the Magistrate, Gazetted Officer or by the police. 39. In the above factual background, the first and foremost questions, which arises for determination before this Court is whether the provisions of Section 50 NDPS Act are applicable in the present case or not. 40. 39. In the above factual background, the first and foremost questions, which arises for determination before this Court is whether the provisions of Section 50 NDPS Act are applicable in the present case or not. 40. The alleged recovery, in the present case, has not been effected from the personal search of the accused, but, the same was allegedly found containing in the rucksack, which was with the accused Kuljeet Singh, who was a pillion rider of the scooter driven by accused Suresh Kumar. As per the prosecution story, on seeing the police, accused Kuljeet Singh had thrown the said rucksack to accused Suresh Kumar, who had also tried to flee away from the spot, however, was nabbed alongwith Kuljeet Singh. 41. Question regarding the applicability of the provisions of Section 50 arose before the Hon’ble Apex Court in a case reported as (2005) 4 Supreme Court Cases 350, titled as State of H.P. vs. Pawan Kumar. The relevant paragraphs of the judgment are reproduced as under:- “10.We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. 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. 42. Similar view has also been taken by Hon’ble Apex Court in a case reported as 2019 (14) SCALE 226 , titled as State of Punjab vs. Baljinder Singh & Anr. The relevant paragraph of the judgment is reproduced as under:- “15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its noncompliance would be fatal to the proceedings initiated under the Act. The relevant paragraph of the judgment is reproduced as under:- “15. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, briefcase, etc. carried by the person and its noncompliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of 6 [ (2010) 3 SCC 746 ] the learned counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P. [(2003) 7 SCC 465]. The Court has observed: (SCC p. 471, para 16) “16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra[ (1999) 8 SCC 257 ], State of Punjab v. Baldev Singh [ (1999) 6 SCC 172 ] and Gurbax Singh v. State of Haryana [ (2001) 3 SCC 28 ]). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case1. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance.” 43. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case1. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance.” 43. Judging the facts and circumstances of the present case, in the light of the above two decisions of Hon’ble Apex Court, this Court is of the considered view that although the personal search of the accused was conducted, but, nothing was recovered from their personal search and the contraband allegedly recovered from the search of the rucksack. At the most, at can be said that the Investigating Officer, in this case, had adopted over cautious approach, when he had made a futile attempt to comply with the provisions of Section 50 of the NDPS Act. In fact, those provisions are not applicable in the present case, as such, the findings of the learned trial Court, on that account also, do not pass the judicial scrutiny, by this Court. 44. Stringent punishment has been provided for the offences punishable under the NDPS Act. when the strict punishment has been provided, then, it is obligatory upon the prosecution to prove each and every ingredient of the offence, for which, the accused persons have been charge sheeted. 45. There is no rule of law that before relying upon the version of the official witnesses, the same must have been supported by the independent witnesses. But, rule of caution says that if the version of the official witnesses is corroborated by the independent witnesses, it will lend credence to the version of the official witnesses. Hence the version of the official witnesses has not been supported by lone independent witnesses. 46. There is no bar that the conviction cannot be recorded merely on the statements of the official witnesses. The official witnesses are as good as the independent witnesses. However, before relying upon the statements of the prosecution witnesses, it is the bounden duty of the Court to see whether the statements of the official witnesses are having a ring of truth in it and the same inspire confidence. 47. The star witness is the I.O. in this case. The official witnesses are as good as the independent witnesses. However, before relying upon the statements of the prosecution witnesses, it is the bounden duty of the Court to see whether the statements of the official witnesses are having a ring of truth in it and the same inspire confidence. 47. The star witness is the I.O. in this case. According to PW-9, he has left the Police Post, Sultanpur after recording his departure report which is Ext.PW-9/A. As per departure report, ASI Vinod Singh (PW-9) along-with ASI Kuldeep Singh, HC Uttam Chand, HHC Raj Kumar, HHC Man Singh, HHG Pankaj Kumar and HHG Ranjit Singh in the official vehicle No. HP-73-0919 being driven by HHG Jalam Singh had proceeded towards Sultanpur, Obri Bhataluan, Mangla, Garori gate for patrolling, laying nakka and for traffic checking. The IO while appearing as PW-9 has almost deposed as per the stand taken by the prosecution. According to this witness, when the accused persons were nabbed, after inquiry, their names, options were given to them to give their search to a Magistrate, Gazetted Officer or to the police. This has been stated by the I.O in his examination-in-chief. Documents in this regard are Ext.PW- 3A and Ext. PW-3/F. 48. Perusal of these documents shows that the IO mentioned, in these documents, that the police are having a valid suspicion against them that they might be having some illegal thing or narcotic substance in their possession. As such, their consent was obtained for search of the rucksack. These documents do not contain the third option which was allegedly stated to be given by the IO. These documents, admittedly, as per the case of the prosecution, were prepared by the IO. The author of these documents who happens to be the IO of the case, put forward a case, according to which, third option was given to the accused persons was not mentioned in the documents, then, this clearly raises a suspicion in the prosecution case. 49. The star witness of the prosecution in the present case is the Investigating Officer, who himself has destroyed the prosecution case by deposing on oath that in the alleged consent memos, he has given three options to the accused persons and not the two. 49. The star witness of the prosecution in the present case is the Investigating Officer, who himself has destroyed the prosecution case by deposing on oath that in the alleged consent memos, he has given three options to the accused persons and not the two. His over jealous approach to depose about the fact that he had given three options to the accused persons regarding their search i.e. before the Magistrate, Gazetted Officer or police, is a fact, which casts a shadow of doubt over the prosecution case. 50. It has rightly been pointed out by the learned counsel appearing for the accused persons in the present case that rukka Ex. PW-9/B, in this case was forwarded to Police Station by the Investigating Officer at about 4:30 p.m., upon which, the formal FIR was registered with Police Station Chamba at about 5:30 p.m. The rukka was brought to the Police Station by PW-4, who has deposed that the scooter was also taken into possession vide memo Ex. PW-3/E and thereafter, the Investigating Officer prepared the rukka and was given to him with a direction to submit the same before MHC Police Station Sadar, Chamba. This witness has nowhere stated that the file was handed over to him by MHC Police Station Sadar, Chamba and after registration of the FIR, the file was again submitted to the Investigating Officer on the spot, then, how the FIR No. 163 of 2010 appeared in the documents Ex. PW3/C, Ex.PW3/D, Ex. PW3/E, Ex. PW3/G, Ex. PW3/H, NCB form Ex. PW-9/E, reseal memo Ex. PW-10/A, spot memo Ex. DA, which are allegedly prepared by the Investigating Officer on the spot, is a question, which has not been answered by any of the witnesses including the Investigating Officer. In the prosecution of such type of cases, the Court could not assume or presume anything unless or until, it has specifically has not been provided in the statute i.e. NDPS Act. 51. Moreover, perusal of documents Ex. PW3/C, Ex.PW3/D, Ex. PW3/E, Ex. PW3/G, Ex. PW3/H, NCB form Ex. PW-9/E, reseal memo Ex. PW-10/A, spot memo Ex. DA, which are allegedly prepared by the Investigating Officer on the spot, containing the FIR number, it seems that the entire contents were written in one go. 51. Moreover, perusal of documents Ex. PW3/C, Ex.PW3/D, Ex. PW3/E, Ex. PW3/G, Ex. PW3/H, NCB form Ex. PW-9/E, reseal memo Ex. PW-10/A, spot memo Ex. DA, which are allegedly prepared by the Investigating Officer on the spot, containing the FIR number, it seems that the entire contents were written in one go. Omissions of the Investigating Officer to depose that after receiving the case file and registration of the FIR, he had filled the relevant column of the documents by mentioning the FIR number in it. This omission is fatal for the case of the prosecution and given an occasion to this Court to infer that the things were not happened on the spot, as deposed by the Investigating Officer. 52. Another fact, which has rightly been highlighted by learned counsel appearing for the accused is qua the fact that Investigating Officer allegedly prepared the spot map, which is on the file as Ex. DA. There are contradictions regarding the spot map. Even in the cross-examination of PW- 3 Uttam Chand, as he on the one hand has stated that the accused were apprehended when they were negotiating the curve on the scooter and on the other hand in the further cross-examination has stated that in the spot map Ex. DA, no curve has been shown. Meaning thereby, even the spot map, has not been prepared by the Investigating Officer, as per the factual and actual position on the spot. 53. It is the case of the Investigating Officer that he had prepared the rukka at about 4:30 p.m. and handed over the same to HHC Raj Kumar No. 177 for taking the same to the Police Station Chamba for registration of FIR, upon which, FIR Ex. PW-9/D was registered. Perusal of this document shows that the rukka was received in the Police Station at about 5:30 p.m., whereas, the special report, which is Ex. PW-1/A, has been stated to be received at 4:55 p.m. on 19.06.2010. The said report was taken to SP Chamba by HHC Raj Kumar PW-3, who has deposed that he had handed over the said documents to HHC Subhash Chand, Reader of SP Chamba. PW-1/A, has been stated to be received at 4:55 p.m. on 19.06.2010. The said report was taken to SP Chamba by HHC Raj Kumar PW-3, who has deposed that he had handed over the said documents to HHC Subhash Chand, Reader of SP Chamba. The said HHC has appeared in the witness box as PW-1 and his omission to depose about the time when he had received the special report and the time when he had presented the same before the then SP Chamba, H.P., is also a fact, which creates a doubt about the submission of the special report to SP Chamba. 54. At the sake of repetition, bare perusal of Ex. PW- 9/F shows that the Investigating Officer has filled the column of this document in one go especially column No.1, which contains the FIR number. Admittedly, this document was supposed to be prepared by the Investigating Officer at the time of recovery of the contraband and before sending the rukka Ex. PW-9/B to the Police Station, as it has been mentioned in this document that after sealing the case property, he had sealed the NCB form in triplicate. As such, column No.1 of this document, creates a doubt that this document was not prepared at the spot, as alleged by the Investigating Officer. 55. From this fact alone, this Court has no hesitation to hold that the evidence of the official witnesses do not inspire confidence. Moreover, the said version of the police officials regarding search and seizure of the alleged contraband from the possession of the accused is also not supported by the independent witnesses. The alleged eye witness PW-8 Harish Kumar has not supported the version of the police and despite of the fact that he has been declared as hostile by the learned trial Court, nothing material could be elicited from him by the learned Public Prosecutor despite of the best efforts made by him. 56. In view of the discussions made above, although the ground that non compliance of Sections 42 and 50 of the NDPS Act do not sustain in the judicial scrutiny by this Court, but, for the reasons assigned by this Court from paragraphs Nos. 47 to 54, this Court has no hesitation to hold that the story of the prosecution comes under the cloud of suspicion and, as such, the accused persons are entitled for the benefit of doubt. 47 to 54, this Court has no hesitation to hold that the story of the prosecution comes under the cloud of suspicion and, as such, the accused persons are entitled for the benefit of doubt. 57. Considering all these facts, the conclusion drawn by the learned trial Court in acquitting the accused is not liable to be interfered, but, for the reasons as stated herein above, the appeal is dismissed accordingly. Pending miscellaneous application(s), if any, also stands disposed of.