JUDGMENT : NELSON SAILO, J. Heard Mr. Aldrin Zothanmawia, learned counsel for the appellant and Ms. Vanneihsiami, learned Addl. Public Prosecutor, Mizoram for the State respondents. [2.] This is an appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 36B of the ND&PS Act, 1985 filed by the appellant against the Judgment and Order dated 17.05.2024 and the Sentence Order dated 22.05.2024 passed by the learned Judge, Fast Track Court, Kolasib in Sessions Case (K) No. 6 of 2023 corresponding to Crl. Tr. (Ex) No. 3 of 2023, convicting the appellant under Section 21(b) of the ND&PS Act, 1985 and sentencing him to undergo Rigorous Imprisonment for a period of 5 (five) years and to pay fine of Rs 5,000/- (Rupees Five Thousand) and with a default clause. [3.] The case of the prosecution in brief is that on 11.12.2022 at around 12:45 (Noon), Mr. Zohmingliana, ASI of Excise & Narcotics, Kolasib and his party arrested the appellant in connection with the recovery/seizure of 149.97 grams of suspected heroin from his residence at Venglai East, Kolasib. The arrest and seizure was made pursuant to receipt of a secret information from a reliable informant. As a result, Kolasib Excise & Narcotics Case No. EX-KLB/183/2022 dated 11.12.2022 under Section 21(b) of the ND&PS Act, 1985 was registered and investigated into. Upon conclusion of the investigation, charge-sheet was submitted against the appellant. Charge was then framed against him under Section 21(b) of the ND&PS Act, 1985 and to which, he pleaded not guilty and claimed for trial. Accordingly, trial was held and in which, the prosecution examined as many as 5 (five) prosecution witnesses while the appellant did not examine any witness in his defence. Upon the conclusion of the trial, the learned Trial Court after hearing the parties, convicted and sentenced the appellant in the manner as has already been stated earlier. [4.] Mr. Aldrin Zothanmawia, learned counsel submits that there are 5 (five) main grounds for filing the instant appeal, which are:- (i) Section 50 of the ND&PS Act, 1985 has been violated. (ii) Section 100 Cr.PC has been violated. (iii) Conscious possession of the recovered substance was not proved. (iv) Section 52A of the ND&PS Act, 1985 has been violated and (v) Standing Order No. 1 of 1989 issued by the Ministry of Finance on 13.06.1989 has been violated. (ii) Section 100 Cr.PC has been violated. (iii) Conscious possession of the recovered substance was not proved. (iv) Section 52A of the ND&PS Act, 1985 has been violated and (v) Standing Order No. 1 of 1989 issued by the Ministry of Finance on 13.06.1989 has been violated. [5.] Substantiating the above grounds, the learned counsel submits that prior to conducting search upon the person of the appellant, he was not asked as to whether he would like to be searched before a Gazetted Officer or a Magistrate and as such, Section 50 of the ND&PS Act, 1985 has been violated. In support of his submission, the learned counsel has relied upon the case of Vijay Singh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609 . [6.] The learned counsel further submits that Section 52A of the ND&PS Act, 1985 provides for the manner in which the seized Narcotic Drugs & Psychotropic Substance has to be disposed. In the absence of the rules in this regard at the relevant time, compliance of the procedures laid down vide Standing Order No. 1 of 1989 dated 13.06.1989 was necessary. Referring to the Standing Order, which is annexed as Annexure - 3 to the Memorandum of Appeal, the learned counsel submits that the quantity to be drawn in each sample for chemical test should be not less than 5 grams in respect of Narcotic Drugs & Psychotropic Substance. However, in the instant case from the cross examination of PW-5, the FSL had received only 4.8 grams of suspected heroin for conducting the test. Referring to clause 2.4 and clause 2.9 of the Standing Order, the learned counsel submits that samples for chemical test is to be drawn from each packages and that test memo has to be duly prepared which was not done in the instant case. Further, referring to clause 3.4 and clause 3.6 of the Standing Order, the learned counsel submits that the go-down receipt and go-down entries have not been exhibited during the trial. Therefore, since the said provisions provided in the Standing Order which are mandatory in nature were not followed, the impugned conviction and sentence imposed upon the appellant cannot be sustained. Further, referring to clause 3.4 and clause 3.6 of the Standing Order, the learned counsel submits that the go-down receipt and go-down entries have not been exhibited during the trial. Therefore, since the said provisions provided in the Standing Order which are mandatory in nature were not followed, the impugned conviction and sentence imposed upon the appellant cannot be sustained. In support of his submission, the learned counsel has relied upon the following authorities:- (1) Noor Aga Vs State Of Punjab And Another (2008) 16 SCC 417 and (2) Mangilal Vs State Of Madhya Pradesh (2003) 19 SCC 364 [7.] The learned counsel by further referring to paragraph No. 11 of the impugned Judgment and Order submits that according to the learned Trial Court, seizure and possession of the alleged drugs was proved beyond reasonable doubt by the prosecution but however, the prosecution has failed to establish that the appellant was in control and conscious possession of the alleged drugs. In the absence of the same, the impugned Order of Conviction and Sentence cannot be sustained. In this connection, the learned counsel relies upon the following decisions:- (1) Ismailkhan Aiyubkhan Pathan Vs State Of Gujarat (2000) 10 SCC 257 and (2) State Of Punjab Vs Baldev Singh (1999) 6 SCC 172 [8.] Referring to Section 100 Cr.PC, the learned counsel submits that before making search, the officer or other person to make the search shall call upon 2 (two) or more independent and respectable inhabitants of the locality where search is to be conducted or of any other locality. In the instant case, from the evidence of the prosecution witnesses themselves, the Excise personnels were already there and had conducted search before the seizure witnesses could come. Therefore, Section 100 Cr.PC having been violated, impugned Judgment and Order is not maintainable and should be interfered with by this Court. [9.] Ms. Vanneihsiami, learned Addl. Public Prosecutor on the other hand submits that the prosecution has been able to prove the charge beyond reasonable doubt as was held by the learned Trial Court and therefore, no interference of the impugned Judgment is called for. She submits that conscious possession of the seized article is duly proved in view of the fact that the contraband substance was recovered from the bedroom of the accused person and from his pocket. She submits that conscious possession of the seized article is duly proved in view of the fact that the contraband substance was recovered from the bedroom of the accused person and from his pocket. She submits that as per Section 110 of the Evidence Act, the burden of proof as to ownership of the seized article is upon the appellant and in absence of any proof that the seized article does not belong to him, the appellant was rightly convicted under Section 21(b) of the ND&PS Act, 1985. The learned Addl. Public Prosecutor submits that there are 2 (two) independent witnesses who witnessed the seizure of the contraband substance. That only after the arrival of the seizure witnesses, search and seizure was done. She submits that from the evidence on record, it does not appear that body search was made on the appellant. [10.] The learned Addl. Public Prosecutor further submits that the samples were drawn before the Magistrate concerned and therefore, the same is a primary evidence. She also submits that no prejudice has been caused to the appellant in any manner and therefore, the trial cannot be said to be vitiated for not following the procedural formalities. In support of her submission, the learned Addl. Public Prosecutor relies upon the case of Bharat Aambale Vs State of Chhattisgarh reported in (2025) SCC Online SC 110. [11.] I have heard the submissions made by the learned counsel for the rival parties and I have perused the materials available on record including the authorities relied upon by the learned counsels. In order to find out as to whether the impugned Judgment and Order of Conviction and the Order of Sentence can be sustained or not, the evidence led by the prosecution may be examined as follows hereafter. [12.] PW-1, Vanlalnghaka, who is the seizure witness in his examination-in- chief stated that he knows the person present in the Court and he was the one from whose possession the seized article was seized. He stated that on 11.12.2022 @ 11:00 AM, he got a phone call from the Excise personnel requesting him to be a witness in the search to be made in the house of the appellant at Venglai East, Kolasib. He was also informed that they had received information about the possession of suspected heroin by the accused. Therefore, he alongwith Mr. He was also informed that they had received information about the possession of suspected heroin by the accused. Therefore, he alongwith Mr. C. Lalremsanga went towards the house of the accused and the Excise personnel were also near the house of the accused. They went inside the house alongwith the Excise personnel who conducted search. In the process, a carton box containing clothes and amongst the clothes, 12 (twelve) soap cases containing suspected heroin was recovered. Further, 2 (two) tictac boxes containing heroin were also recovered from the pocket of the accused. The accused stated that the suspected heroin belonged to him and that he had purchased it from Bagha for reselling it. The seized article was weighed in their presence and it measures 149.97 grams. The same was packed and sealed in their presence and he stood as a witness. PW-1 exhibited his signature as P-II (b). [13.] In his cross-examination, PW-1 stated that it was not a fact that the Excise personnel were already present inside the residence of the accused when he reached the place of occurrence. The seized article was recovered inside the bedroom of the accused next to his bed on the floor. The carton was not properly hidden. Body search upon the accused was conducted by the Excise at the place of occurrence. He was not sure as to whether the accused was asked any question before conducting search upon his body. The seized article appeared to be yellowish in color. [14.] PW-2, C. Lalremsanga, in his examination-in-chief stated that he knows the accused person present in the Court and he is the person from whose possession the seized article was seized. On 11.12.2022 @ around 11:00 AM, he received a phone call from Excise personnel requesting him to be a witness in the search to be made in the house of the accused. He was informed that they had received information about the possession of suspected heroin by the accused. Therefore, he alongwith PW-1 proceeded towards the house of the accused and they found the Excise personnel near the house of the accused. They went inside the house alongwith the Excise personnel and the Excise personnel conducted search inside the house and recovered a carton box containing clothes and between the clothes there were 12 (twelve) polythene packets, the contents of which were suspected to be heroin from the bedroom of the accused. They went inside the house alongwith the Excise personnel and the Excise personnel conducted search inside the house and recovered a carton box containing clothes and between the clothes there were 12 (twelve) polythene packets, the contents of which were suspected to be heroin from the bedroom of the accused. Further, 2 (two) tictac boxes containing heroin were also recovered from the pocket of the accused. The accused stated that the suspected heroin belonged to him and that he had purchased them from Bagha for reselling it. The seized articles were weighed in their presence and it measured 149.97 grams. The same were packed and sealed in their presence and he stood as a witness. [15.] In his cross-examination, PW-2 stated that the Excise personnel were already present at the residence of the accused at the time when he reached the residence of the accused. According to PW-2, the powder content of the 12 (twelve) soap cases appeared to be a mix of red and white color and it looked very much like grinded Vitamin C tablet. The remaining statements of PW-2 in his cross-examination are more or less similar to the cross-examination of PW-1. [16.] PW-3, ASI Zohmingliana, who is the Seizing Officer in his examination-in- chief stated that on 11.12.2022 @ around 11:30 AM, he received an information from a reliable source and after recording the information received and informing the Officer-in-charge, Excise & Narcotics, Kolasib about the same, he proceeded to take action alongwith his party. On the same day at around 12:45 PM, he seized 149.97 grams of yellowish powder suspected to be heroin kept in 12 (twelve) soap cases and 2 (two) tictac boxes from inside the bedroom of the accused person. The seized articles were recovered in the presence of seizure witness and he also arrested the accused person. An intimation of the arrest was given to the father of the accused person as he was also present at the place of occurrence. The seized article were weighed, marked and packed a d sealed in the presence of the civilian witnesses. PW-3 exhibited the infor ation recorded by him, the Seizure and arrest Memo and the report given to the Officer-in-charge, Excise & Narcotics, Kolasib and his signatures. In his ross-examination, he stated that the seized article was already identified nd recovered before the civilian witnesses were invited to stand as a witness. PW-3 exhibited the infor ation recorded by him, the Seizure and arrest Memo and the report given to the Officer-in-charge, Excise & Narcotics, Kolasib and his signatures. In his ross-examination, he stated that the seized article was already identified nd recovered before the civilian witnesses were invited to stand as a witness. That after the witness reached the residence of the accused person, 1 (one) Exc se Constable brought out the 12 (twelve) soap cases from the bedroom to the itting room of the accused and thereafter, it was officially seized in the prese ce of the civilian witnesses. [17.] PW-4, Joseph C. Lalhmangaihzuala, who is the Case I/O in his examination-in-chief stated that on 11.12.20222 at 12:45 PM, PW-3 and party performed duty at Venglai East, Kolasib and seized 149.97 grams heroin kept in 12 (twelve) soap cases and in 2 (two) tictac boxes which were hidden in his bedroom and from his possession respectively. So, the accused person was also arrested on the same day in presence of civilian witnesses. He stated that he was endorsed with the case for further investigation. Weighment of the seized article, packing and drawal of samples was done before the CJM, District Court, Kolasib and he drew one sample and one duplicate sample as per Rule No. 10 (3) and 11 (2) of ND&PS Act, 1985 (Seizure, storage, sampling and disposal) Rules, 2022 out of the seized contraband articles. He made inventory and took photographs of drawing the sample and he packed and sealed the seized articles before the CJM, Kolasib. He then sent the sample to FSL, Aizawl for chemical analysis. The result of the FSL examination was that the same was found to be heroin and it was of 80% w/w purity at the time of examination. During the investigation, he interrogated and examined the accused person, the witnesses and the Seizing Officer and he also recorded their statements. His investigation revealed that the accused person had brought the seized article at the price of Rs 70,000/- (Rupees Seventy Thousand) and that the seized articles were actually recovered and seized from the possession of the accused person. He therefore found a prima facie case under Section 21(b) and Section 8(c) of the ND&PS Act, 1985. PW-4 exhibited the Complaint Sheet, sample drawn, certificate of inventories, photographs etc. He therefore found a prima facie case under Section 21(b) and Section 8(c) of the ND&PS Act, 1985. PW-4 exhibited the Complaint Sheet, sample drawn, certificate of inventories, photographs etc. PW-4 in his cross-examination stated that some of the Excise personnel were already inside the residence of the accused person at the time when the witness reached the place of occurrence. He believed that the witnesses were summoned only after Excise personnel had recovered the seized article and confirmed that it was under the possession of the accused. He also stated that the seized article appeared to be yellowish in colour. [18.] PW-5, T. Lalropuia, who is the Joint Director, FSL, Aizawl in his examination-in-chief stated that on 16.12.2022 they received the parcel consisting of 1 (one) exhibit packed which was sealed in a polythene packet and enclosed together in a paper envelope sealed with wax seal from Officer-in- charge, Excise & Narcotics Station, Kolasib for scientific examination. The exhibit contained brownish powder weighing 4.8 grams. He alongwith Dr. Lawmzuali, Junior Scientific Officer, FSL examined and found the exhibit to be heroin with purity of about 80% w/w at the time of examination. The report was sent on 27.01.2023 to the forwarding authority. PW-5 exhibited the report as well as his signature. In his cross-examination, he stated that 1 (one) packet of sample weighing 4.8 grams was sent to FSL for examination. [19.] With regard to the recovery and seizure of the contraband substance (heroin) from the 12 (twelve) soap cases, the learned Trial Court held that recovery of the same was made from the floor of the bedroom and the contraband substance was kept inside a carton box. With regard to this seizure, since no exercise of search was done, there is no violation of mandatory provision of law. Seizure of the said contraband substance warranted the appellant to be tried and convicted under Section 12 (b) of the ND&PS Act, 1985. As for the second part of the seizure and for that matter, with regard to the compliance of Section 50 of the ND&PS Act, the learned Trial Court held that since seizure was made in the immediate presence of the Gazetted Officer, there was no violation of the relevant provisions of law. As for the second part of the seizure and for that matter, with regard to the compliance of Section 50 of the ND&PS Act, the learned Trial Court held that since seizure was made in the immediate presence of the Gazetted Officer, there was no violation of the relevant provisions of law. In this connection, it may be seen that the Seizing Officer, who was also examined as PW-3, is of the rank of Assistant Sub-Inspector of Excise & Narcotics Department. The rank of Assistant Sub-Inspector of Excise & Narcotics admittedly is not a gazetted post and therefore, it appears that the learned Trial Court had had misconstrued the same to be a gazetted post. [20.] Section 50 of the ND&PS Act may be abstracted hereunder for ready reference: “ 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 subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly 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.]” [21.] From the above abstract, it may be seen that prior to making a body search, the person to be searched has to be taken to the nearest Gazetted Officer or to the nearest Magistrate for making the search. However, there is an exception made under Section 50 (5) of the ND&PS Act, 1985 which provides that after the search is conducted, the Officer concerned has to record the reason for such belief that search was necessary to avoid the possibility the person to be searched parting with any contraband substance as provided under Section 50 (6) of the ND&PS Act, 1985. From a perusal of the materials available on record, it is not only seen that the Seizing Officer is neither a Gazetted Officer nor reasons appear to have been recorded by the Officer conducting search and the record forwarded to his superior Officer within 72 hours. It therefore, appears that Section 50 of the ND&PS Act, 1985 had been violated by the party conducting the search. [22.] With regard to the search and seizure of the contraband substance kept in 12 (twelve) soap cases inside a carton box in the bedroom of the appellant, it may be seen from the evidence on record that as per the statement of PW-2 in his cross-examination, the Excise personnels were already present at the residence of the accused at the time when he reached the place. PW-3 also in his examination-in-chief stated that before the civilian witnesses were invited, he along with his team entered the residence of the accused and performed search of the seized article. That the seized article was already identified and recovered before the civilian witnesses were invited to stand as a witness. He further stated that immediately after the witnesses reached the residence of the accused, his team member brought out 12 (twelve) soap cases from the bedroom to the sitting room of the accused and the same was officially seized in the presence of the civilian witnesses. Similarly, PW-4 in his cross-examination stated that some of the Excise personnels were already inside the residence of the accused at the time when the witnesses reached the place of occurrence. Similarly, PW-4 in his cross-examination stated that some of the Excise personnels were already inside the residence of the accused at the time when the witnesses reached the place of occurrence. It therefore, appears that even before the civilian witnesses who were eventually made as seizure witness reached the residence of the appellant, the Excise personnels therefore has already entered the house and conducted the search. Section 100 Cr.PC therefore has been violated by the search party. There are certain safeguards provided under Section 42 of the ND&PS Act, 1985 but the materials on record do not reveal that such safeguards have been adopted before entering and searching the house of the appellant. [23.] In respect of the contention of the learned counsel for the appellant that Section 52A has been violated. It may be seen that the Apex Court in Bharat Aambale (Supra) had extensively dealt with Section 52A of the ND&PS Act, 1985. Reference was made in the case of Narcotics Control Bureau Vs. Kashif reported in (2024) SCC Online SC 3848 wherein, it was held that the provisions of ND&PS Act, 1985 are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on society as a whole. It has to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drug and psychotropic substances. Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the ND&PS Act. [24.] Therefore, according to the Apex Court, it is clear that the underlying object behind Section 52A of the ND&PS Act and the Standing Order (s)/Rules thereunder is only to provide for a mechanism and procedure for the safe and early disposal of narcotics substances and seized contraband to prevent such substances from endangering lives due to prolonged storage, ceasing to be of any evidentiary value due to degradation or spoilage, or from falling into wrong hands or being re-circulated into the market due to theft etc. Although it is true that Chapter V of the ND&PS Act more particularly, Section(s) 42 to 57 form a unique scheme of provisions that prescribe several procedural safeguards and conditions that have to be mandatorily adhered to, right from the process of conducting search till the seizure and recovery of the contraband, its safe-keep and handling, yet it does not mean that a mere delay or non-compliance of the same, would result in the trial being vitiated, or the entire case of prosecution crumbling. [25.] The Apex Court amongst others thus concluded as follows:- “ (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order (s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order (s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid down therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution’s case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.” [26.] It may be seen that in coming to such conclusion, the Apex Court has also taken into the consideration, the earlier decision of the same Court in Noor Aga (Supra) and Mangilal (Supra). That meticulous non-compliance of Section 52A of the ND&PS Act or Standing Order No. 1 of 1989 may not be fatal to the case of the prosecution. However, in the instant case, as already noted in the preceding paragraphs, there is non-compliance of Section 50 of the ND&PS Act as well as Section 100 of the Cr.PC. The Apex Court in Vijay Singh Chandubha Jadeja (Supra) in the given facts and circumstances of the case at paragraph Nos. 29 & 32 held as follows: “29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. 29 & 32 held as follows: “29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.” [27.] From the above abstract, it may be seen that compliance of Section 50(1) of the ND&PS Act, 1985 is mandatory in nature and having regard to the fact that the same has not being complied with in the instant case, the conviction of the appellant in the considered view of this Court cannot be sustained. The Apex Court in the case of State Of Punjab Vs Baldev Singh (Supra) in the given facts of that case held that it must be borne in mind that the severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. [28.] The learned counsel for the appellant had raised the issue in respect of the different discription of colour of the seized contraband substance and also the weight. It may be mentioned that due to exposure of the contraband substance, there could be slight variation in its appearance and in its weight as well. However, in view of the finding arrived at, this aspect of the matter need not be discussed in detail. [29.] Thus upon due consideration of the case in its entirety, the impugned order of conviction and the order of sentence are found to be not sustainable and accordingly, they are set aside. The appellant is directed to be released if not wanted in connection in any other case. [30.] With the above observations and direction, the appeal stands disposed of as allowed. Registry is directed to send back the Trial Court records immediately.