JUDGMENT : BRIJ RAJ SINGH, J. 1. The instant appeal under Section 374(2) Cr.P.C. has been filed challenging the judgment and order dated 28.05.1998 passed by IXth Additional District and Sessions Judge, Lucknow (in short “trial Court”) in Criminal Case No. 85 of 1995, under Sections 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act") Police Station – Narcotics Department, District – Lucknow whereby the appellant has been convicted and sentenced under Sections 8/21 of NDPS Act for a period of ten years rigorous imprisonment along with the fine of Rs. 1,00,000/- and in default of payment of fine, to undergo additional five years’ rigorous imprisonment. 2. Heard Shri Kunwar Sushant Prakash, learned counsel for the accused-appellant and Sri S. M. Singh Royekwar, learned Counsel for the Union of India/Central Bureau of Narcotics. 3. The case of prosecution, as per material available on record, is that on 27.02.1995, at about 10:00 AM, a secret information was received that one person namely accused- appellant Vinai Kumar Sharma is staying in Room No. 25, Hotel Manisha, Ganesh Ganj, Lucknow, and that he has come from Delhi with the intention to purchase heroin. It was informed that Mohd. Islam @ Farooq Son of Mohd. Shami @ Haroon, resident of Tikra Patti, P.S. Jaidpur, District Barabanki, would bring heroin from his village and deliver the same to accused-appellant Vinai Kumar Sharma in Room No. 25 of Hotel Manisha, and that the monetary transaction would also take place in the said hotel. Believing the information, Rajdhari Singh, Sub-Inspector, Central Narcotics Bureau, Lucknow Camp, Zaidpur (Barabanki), after consulting his seniors at Lucknow, constituted a preventive team led by S.C. Sarkar, Superintendent (Preventive), Barabanki Zaidpur Camp. The team reached Hotel Manisha at about 12:00 noon and inspected the register at the Hotel Counter. They proceeded to Room No. 25 along with two public witnesses. The Room was found locked from inside. Upon knocking, one person opened the door who, on inquiry, disclosed his name as Vinai Kumar Sharma, son of Ram Charan Lal, resident of Room No. 88, Govind Park, Chander Nagar, P.S. Krishna Nagar, Delhi. On being further asked whether anybody else was present in the Room, he stated that another person known to him was also present, whose name is Mohammad Islam, resident of Village Tikra Patti, District Barabanki. On being further asked whether anybody else was present in the Room, he stated that another person known to him was also present, whose name is Mohammad Islam, resident of Village Tikra Patti, District Barabanki. Upon being called, the second person came to the door and disclosed his name as Mohd. Islam @ Farooq, son of Mohd. Shami @ Haroon, resident of Village Tikra Patti, P.S. Zaidpur, District Barabanki. Since the names and particulars matched with those given in the secret information, both the persons were informed about the purpose of the visit and were asked whether they wished their personal search and search of the premises to be conducted before a Magistrate or a Gazetted Officer. Both accused-appellant Vinai Kumar Sharma and Mohd. Islam declined and consented to be searched by the preventive team itself. Thereafter, in the presence of witnesses, Rajdhari Singh, Sub- Inspector, and Faiyaz Ahmad along with witnesses, entered the Room and commenced search. During search, a red coloured hand bag was found under the pillow on the bed. On being asked, accused-appellant Vinai Kumar Sharma stated that the bag contained Rs. 23,000/-, which he admitted to be his own money, brought from his home, and that he intended to purchase heroin from Mohd. Islam @ Farooq, present in the Room. He further stated that one packet of heroin had already been given to him, while another packet remained with Mohd. Islam, and that he was about to check the purity of the heroin by consuming it, after which he intended to decide the price, but before that, the team arrived. On being asked to produce the heroin in his possession, he took out one plastic-wrapped packet from the right pocket of his blue jeans, which was opened by Constable Faiyaz Ahmad in the presence of witnesses, and found to contain brown- coloured, semi-moist substance, which was seized under Sections 8, 21 of NDPS Act. Thereafter, Mohd. Islam was asked whether he also possessed any heroin, to which he admitted, and produced one plastic-wrapped packet from the left pocket of his brownish- khaki trousers, which, when was opened by Constable Faiyaz Ahmad in presence of witnesses, was found to contain brown- coloured, semi-moist substance, which was also seized under Sections 8, 21 of NDPS Act. Thereafter, both recovered packets were tested with the field testing kit, and the substance was found to be heroin. Thereafter, both recovered packets were tested with the field testing kit, and the substance was found to be heroin. On weighing the substance on the weighing scale available at the spot, the heroin recovered from accused- appellant Vinai Kumar Sharma weighed 120 grams, and the heroin recovered from Mohd. Islam weighed 80 grams. From each packet, two samples of 5 grams each were drawn for chemical examination and were separately sealed in tin containers. The recovered heroin from Vinai Kumar Sharma was marked “A”, and the two sample containers were marked “A1” and “A2”. Similarly, the recovered heroin from Mohd. Islam @ Farooq was marked “B”, and the two sample containers were marked “B1” and “B2”. After apprising both accused persons of the offence under Sections 8, 21 of NDPS Act. Accused-appellant Vinai Kumar Sharma and Mohd. Islam were arrested along with the seized heroin. A recovery-cum-seizure memo was prepared on the spot, read over to all present, and upon admitting it to be correct, it was signed by the witnesses, accused persons and members of the team, with their signatures/thumb impressions. 4. Accused-appellant Vinai Kumar Sharma was summoned by the trial Court and the trial Court framed charge against the appellant under Sections 8C, 21 of the NDPS Act and the said charge was read over and explained to the accused-appellant, who thereafter, denied the possession of 120 gms heroin and claimed trial. Upon denial, the appellant was put to trial. 5. To prove it case, the prosecution examined Seizing Officer Rajdhari Singh/PW-1, Superintendent S.C. Sarkar/PW-2, Independent Witness Manager Harishankar Agnihotri/PW-3, Investigating Officer P. K. Shah/PW-4, Malkhana Incharge G.K. Mukherji/PW-5 and Constable Subhash Chandra Dubey/PW-6. 6. In response to the question(s) put to the accused-appellant in terms of Section 313 Cr.P.C., the accused-appellant denied the case of prosecution. He also denied the incident and deposed before the Court that he has been falsely implicated and he also denied the factum of recovery. He accepted that at 08 O’ clock in the morning, he was arrested at Hotel Manisha and recovery of Rs.30,765/- was made from him. He further made allegation against the employees of Narcotics Department that they wanted to grab the said amount, which was found in his possession. The accused-appellant made protest that is why he has been falsely implicated. 7. He further made allegation against the employees of Narcotics Department that they wanted to grab the said amount, which was found in his possession. The accused-appellant made protest that is why he has been falsely implicated. 7. Thereafter, the trial Court after due consideration of the submissions advanced by the learned counsel for the parties and evidence available on record passed the judgment of conviction and sentenced, detailed in para 1 of this judgment, which has been assailed in the present appeal. 8. Seizing Officer Rajdhari Singh/PW-1, in examination-in-chief, has stated that on 27.02.1995, he was posted as Sub- Inspector, Zaidpur, District Barabanki. On that day he received a secret information that a person named Vinai Kumar, who had come from Delhi, was staying at Manisha Hotel, Ganesh Ganj, Lucknow, and that he would purchase heroin from Mohd. Islam @ Farukh, resident of Village Tikra Patti, District Barabanki, and return to Delhi. He recorded this secret information in D.R.I. Form No. 1 in his own handwriting. The informer was brought along with Constable Faiyyaz Ahmad. This information is written in his own handwriting and bears his signatures. He also obtained the signatures of Faiyyaz Ahmad on it. This information is Exhibit Ka-1. After receiving the information, he and constable Faiyyaz Ahmad came to Lucknow, and after discussing with their officers, an immediate team was constituted consisting of S.C. Sarkar, Superintendent; Ashok Kumar, Inspector; Faiyyaz Ahmad, Constable; Om Prakash Gupta, Constable; Kamlakar Pandey, Constable; Ram Kripal, Constable, and they proceeded on government vehicle No. UP-32-0042 with driver K.K. Seth. They reached Manisha Hotel, checked the entry of Room No. 25 as pointed out by the informer at the counter, and along with hotel employees Harishankar Agnihotri and Sudhir Kumar Dixit reached Room No. 25 and knocked on the door. Accused-appellant Vinai Kumar opened the door. PW-1 asked him his name and address. He disclosed his name as Vinai Kumar S/o Ram Charan Lal R/o Govind Park, P.S. Krishna Nagar, Delhi. PW-1 then asked whether any other person was in the Room. He said that there was another person who had come to meet him. He was called and PW-1 asked his name and address. He disclosed his name as Mohd. Islam @ Farukh, resident of Village Tikra Patti, District Barabanki. PW-1 then asked whether any other person was in the Room. He said that there was another person who had come to meet him. He was called and PW-1 asked his name and address. He disclosed his name as Mohd. Islam @ Farukh, resident of Village Tikra Patti, District Barabanki. After that, PW-1 told them that whether they wanted to be searched in the presence of a Magistrate or Gazetted Officer, but both consented to be searched by me and the team. Thereafter, PW-1 and Constable Faiyyaz Ahmad, both witnesses, and our officers exchanged personal searches, and then entered the Room. Upon entering the Room and during search, a red hand bag was found below the pillow on the bed, which Vinai Kumar claimed as his own and stated that Rs. 23,000/- were kept in it and that the money belonged to him. The money was counted in his presence and verified. He stated that the money was brought to purchase heroin and take it to Delhi. When asked whether the heroin had arrived, he said that the other person, Mohd. Islam, had brought two packets of heroin, out of which one packet had been given to him, which he was testing for purity, and that the other packet was with Islam, and during that time they arrived. Thereafter, Vinai Kumar took out a packet of heroin from the right pocket of his jeans. It was opened and tested with the testing kit, and it was confirmed to be heroin. Then Mohd. Islam took out another packet of heroin from the left pocket of his pants, which was also opened and tested, and confirmed to be heroin. Both packets were weighed one by one on the scale. The heroin recovered from Vinai Kumar weighed 120 grams, and the heroin recovered from Islam @ Farukh weighed 80 grams. From both packets, two samples of 5 grams each were taken for chemical examination. The samples and the remaining material were sealed separately. A seizure memo (fard) was prepared at the spot in his handwriting and bearing his signature. The signatures of the witnesses were obtained, and accused Vinai Kumar signed and accused Mohd. Islam affixed his thumb impression. The seizure memo was also signed by his officer S.C. Sarkar, and one copy each was given to both accused, and their signatures and thumb impressions were obtained. The signatures of the witnesses were obtained, and accused Vinai Kumar signed and accused Mohd. Islam affixed his thumb impression. The seizure memo was also signed by his officer S.C. Sarkar, and one copy each was given to both accused, and their signatures and thumb impressions were obtained. The seizure memo is Exhibit Ka-2, written and signed by him, and is on record. 9. Superintendent S.C. Sarkar/PW-2 stated on oath that he is a Gazetted Officer. On 27.02.1995, he was posted as Superintendent, Central Narcotics Bureau, Jaidpur, Barabanki. On that day, he was present in Lucknow. On the same day, at about 11:00 a.m., S.I. Rajdhari Singh and Constable Faiyyaz Ahmad came to meet him in the office. They presented before him the written information DRI–1, Exhibit Ka–1, and apprised him of the information. He read Exhibit Ka–1 and signed and consulted the Deputy Narcotics Commissioner and formed a team to apprehend the accused persons. The team consisted of S.C. Sarkar, S.I. Rajdhari Singh, Constable Faiyyaz Ahmad, Kamaldhar Pandey, Ram Kripal, and Ashok Kumar, Inspector. They took the government jeep UP-32-0043 with driver K.K. Seth and proceeded to Manisha Hotel, Ganesh Ganj, Lucknow. They went to the hotel counter and checked the hotel register for Room No. 25 as informed by the informer. Taking the two hotel employees, Harishankar Agnihotri and Sudhir Kumar Dixit, they went to Room No. 25. They knocked on the door and got it opened. The accused-appellant Vinai Kumar Sharma opened the door. They asked his name and address. He disclosed his name as Vinai Kumar Sharma, son of Ramcharan Lal, resident of Govind Park, P.S. Krishna Nagar, Delhi. They also asked him whether anyone else was inside the Room. He said there was another person named Islam. He was also called and was asked his particulars. He stated his name was Islam @ Farooq, son of Haroon, resident of Village Tikra, District Barabanki. He introduced himself and told them that he is a Gazetted Officer and that he had information that they were in possession of heroin. He also asked them whether they wanted to be searched in the presence of Magistrate or any other Gazetted Officer. They said that he could conduct the search. The officers and witnesses searched each other and then entered the Room. He also asked them whether they wanted to be searched in the presence of Magistrate or any other Gazetted Officer. They said that he could conduct the search. The officers and witnesses searched each other and then entered the Room. During the search, a red hand-bag was found under the pillow on the bed, which Vinai Kumar claimed to be his. It contained 23,000 rupees, which he stated belonged to him. On counting, the amount was confirmed. Upon further questioning, he stated that the money had been brought to purchase heroin. He took out a packet from his pocket and handed it over, saying that it contained heroin. He also stated that the second packet was with Islam. Islam took out a packet from the left pocket of his trousers and gave it, stating that it contained heroin. Both packets were tested with the testing kit and both were confirmed to contain heroin. The packets were weighed separately. From Vinai Kumar’s packet, 120 grams of heroin was found and from Islam’s packet, 80 grams of heroin was found. Two samples of 5 grams each were taken from each of the two packets. All four samples and the remaining heroin in both packets were sealed separately. The packets and samples were signed and thumb-marked by the officers, witnesses and the accused persons. The seizure memo, Exhibit Ka–2, was written by S.I.R.D. Singh. It bears the signatures and thumb impressions of all the officers, witnesses and the accused persons. One copy each was given to both accused persons, on which their signatures and thumb impressions were taken. Exhibit Ka–2 is the same memo on which his signatures also appear. The statements of both accused persons were recorded by Shri Rajdhari Singh. Whatever the accused stated was written down, read over to them, and their signatures and thumb impressions were taken. Both accused were arrested. Until the samples and the heroin remained with them, no one was allowed to touch or tamper . On 01.03.1995, two samples— one of accused Vinai Kumar and one of accused Islam—were sent for examination to the Chemical Examiner, Government Opium Factory, Neemuch, Madhya Pradesh, through the letter, Exhibit Ka–9, which was typed under his direction; it is on record and bears his signature. The Chemical Examiner’s Report is Exhibit Ka–10, which is also on record. 10. On 01.03.1995, two samples— one of accused Vinai Kumar and one of accused Islam—were sent for examination to the Chemical Examiner, Government Opium Factory, Neemuch, Madhya Pradesh, through the letter, Exhibit Ka–9, which was typed under his direction; it is on record and bears his signature. The Chemical Examiner’s Report is Exhibit Ka–10, which is also on record. 10. Independent Witness Manager Harishankar Agnihotri/PW-3 in examination-in-chief stated that on 27.02.1995, he was working as the Manager of Manisha Hotel. The accused- appellant Vinai Kumar was staying in Room No. 25 of his Hotel. On the same day, at about 12:00 noon, officers and staff of the Narcotics Department came to the hotel and inquired about Vinai Kumar. As per the register, they were informed about Room No. 25. He told them that Vinai was staying there. He, along with Sudhir Dixit, accompanied them to the Room. The door was knocked by them and Vinai Kumar opened the door. The officers asked his name. There was another person in the Room. They were told that their search would be conducted. They mutually searched each other and Vinai Kumar was searched. Vinai Kumar took out a packet from the pocket of his pants. It contained brownish substance. Some money was also recovered from the purse. He does not remember the exact amount, whether the amount was Rs. 23,000/- or Rs. 25,000/-. The material recovered from Vinai Kumar was weighed, and it might have been 120 grams, from which two samples were taken. The recovered material and samples were sealed. A partially typed carbon copy of the seizure memo was prepared on which his signatures exist. A written statement was also taken, what was spoken was written, and it was read over to the person. Exhibit K-6 was recorded, on which my signatures also appear. His signatures were also obtained on the seized material and samples. The document Exhibit K-12 contains his handwriting and signatures. 11. Malkhana Incharge P.K. Shah/PW-4 identified signature of R.A. Rai on order dated 19.05.1995 (Ex.Ka.12) and deposed that R.A. Rai was no more. He also proved site plan (Ex.Ka.12) and complaint (Ex.Ka.15). 12. Constable G.K. Mukherji/PW-5, in-charge of Malkhana, was also examined and he deposed that the four samples were sent by Rajdhari Singh/PW-1 in Malkhana and he proved photocopy of Malkhana Register (Ex.Ka.16). 13. Subhash Chandra Dubey/PW-6 proved photocopy of receipt of sample (Ex.Ka.17). 14. He also proved site plan (Ex.Ka.12) and complaint (Ex.Ka.15). 12. Constable G.K. Mukherji/PW-5, in-charge of Malkhana, was also examined and he deposed that the four samples were sent by Rajdhari Singh/PW-1 in Malkhana and he proved photocopy of Malkhana Register (Ex.Ka.16). 13. Subhash Chandra Dubey/PW-6 proved photocopy of receipt of sample (Ex.Ka.17). 14. Shri Kunwar Sushant Prakash, learned counsel for the appellant, on the basis of written submissions, has submitted that the matter pertains to year 1995. Almost 30 years have passed and present age of the accused-appellant is about 72 years. It has been submitted that there is no compliance of Section 50 as well as Section 52A of NDPS Act. In the statement of Rajdhari Singh/PW-1, it is mentioned that after searching the room of the Hotel, the accused-appellant was given two options whether he wanted to be searched before Gazetted Officer or before the Police Party itself. The accused-appellant had opted to be searched before Police Party. 15. Learned counsel has further pointed out that at page 27 of the paper-book, Rajdhari Singh/PW-1 has stated that in the present case he did not obtain warrant from the Magistrate for the reason that a Gazetted Officer was present with him. He further deposed in cross-examination that the Gazetted Officers were always present with him. Therefore, there was no requirement to take any Magistrate. He further deposed before the Court that the accused-appellant was informed that Gazetted Officer was present with Raiding Party. When he was asked for search before Gazetted Officer or Magistrate, then the accused-appellant offered for search before Raiding Party. He further deposed that he did not write the fact that officer was present with him. 16. It has been further pointed out by learned counsel that from the statement of PW-1, it is admitted by prosecution witness that no information/application was given to the Magistrate, as per Section 52A of NDPS Act. The gazetted officer was present along with raiding party. 17. It has been further submitted that accused person was informed that Gazetted Officer is accompanying the Raiding Party, therefore, without taking separate consent from accused-appellant and without taking his consent in writing the search was conducted, which is a violation of Section 50 of the NDPS Act, 18. The gazetted officer was present along with raiding party. 17. It has been further submitted that accused person was informed that Gazetted Officer is accompanying the Raiding Party, therefore, without taking separate consent from accused-appellant and without taking his consent in writing the search was conducted, which is a violation of Section 50 of the NDPS Act, 18. It has been further submitted by learned counsel that although it cannot be said by any stretch of imagination that prosecution complied with Section 50 of NDPS Act, but if for the sake of argument, if it's hypothetically presumed that prosecution did complied with the mandate of Section 50 of NDPS Act, even so, oral consent given by the accused-appellant was given in the impression that they were being searched in the presence of Gazetted Officer and actually, he was misled to give his consent before Gazetted Officer, who was part of the Raiding Party, cannot, as per the law, search the accused person. 19. Learned counsel has further invited attention of the Court towards page-38 of the paper book, the statement of S.C. Sarkar/PW-2, wherein he has stated that he is a Gazetted Officer. He deposed before the Court that he introduced himself as Gazetted Officer and told accused-appellant that he was informed that accused-appellant was in possession of the heroin. He asked him whether he wished to be searched either before the Magistrate or before the Gazetted Officer, on which he had said that the Raiding Party could search him. 20. Learned counsel has submitted that aforesaid deposition of PW-2 indicates that he was present as a part of the Raiding Team. It has been submitted that the accused was not told that it is his right to be searched in presence of Magistrate or Gazetted Officer other than the one who is leading the Raiding Party and as such, this violates the mandatory provisions of Section 50 of the NDPS Act, which requires that accused should be informed about his right in clear terms that he has right to be searched in presence of a Gazetted Officer other than one who is accompanying the Raiding Party. 21. 21. Learned counsel has placed reliance on the judgment of Hon’ble Supreme Court passed in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 and judgment of Calcutta High Court passed in the case of Mainul Haque v. Union of India, 2014 SCC OnLine Cal 18359. 22. Learned counsel has further pointed out that at page 46 of the paper-book, PW-2, who admitted that a personal search of the accused did took place and the same resulted in the recovery 23. Learned counsel has futher submitted that aforesaid admission of PW-2 indicates that the search of the accused- appellant was done prior to recovery. PW-3, Hari Shankar Agnihotri, the Manager of Manisha hotel, had nowhere stated about compliance of Sections 50 and 52A of the NDPS Act. However, at page 48 of the paper-book, he has stated in the cross-examination that the personal search of the accused-appellant had taken place. 24. It has further been submitted that after taking into consideration the statements of of PW-2 and PW-3, it is apparent that personal search of the accused-appellant had taken place. Thus, there is violation of Section 50 of the NDPS Act. 25. By pointing page 86 of the paper book, learned counsel has submitted that recovered contraband produced in the Court was different from the one which was allegedly recovered from the accused and the aforesaid discrepancy was unrebutted by prosecution. Had the prosecution complied with the provisions of Section 52A of the NDPS Act, such discrepancies would have been avoided. 26. Learned counsel has relied on the judgment of Honorable Supreme Court, passed in the case of Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262. Reliance has also been placed on paragraph 44 the judgment of Delhi High Court in Dharambir v. State, 2018 SCC OnLine Del 12305. 27. To support his argument with regard to Section 52A of the NDPS Act, he has relied on the judgments of Hon’ble Supreme Court passed in Yusuf v. State, (2024) 14 SCC 217 : 2023 SCC OnLine SC 1328 and Mangilal v. State of M.P., (2023) 19 SCC 364 : 2023 SCC OnLine SC 862. 28. 27. To support his argument with regard to Section 52A of the NDPS Act, he has relied on the judgments of Hon’ble Supreme Court passed in Yusuf v. State, (2024) 14 SCC 217 : 2023 SCC OnLine SC 1328 and Mangilal v. State of M.P., (2023) 19 SCC 364 : 2023 SCC OnLine SC 862. 28. Per Contra, Sri S.M. Singh Royekwar, learned Counsel for the Union of India/Central Bureau of Narcotics, on the basis of written submissions, has submitted that in the present case, the contraband was handed over by the accused-appellant himself from the right pocket of his pant to the Raiding Team during general questioning by the members of the Raiding Team at the time of raid. 29. It has been further submitted that the contraband was not recovered as a result of body search of the accused-appellant, rather he himself has handed over the contraband substance to the Raiding Team. It was also not recovered from any other container which was in the possession of the accused-appellant. Hence, rigors of Section of 50 of NDPS Act would not applicable in the present case. 30. It has been further submitted that from reading of the various judgments of the Hon'ble Supreme Court, though they deal with different facts and situations regarding recovery unlike the case in hand. The only safe and sure proposition is deduced that in case of voluntary handing over or surrendering of the contraband by the accused-appellant to the prosecution team, Section 50 of NDPS Act would not get attracted. 31. He has relied upon paragraphs 110 to 121 passed in Ranjan Kumar Chadha (Supra). 32. It has been further submitted that factum of recovery as a result of appellant's own voluntary act of surrendering/handing over of the contraband to the Raiding Team has been proved by the prosecution witnesses. Statements of PW-1 (examination-in- chief at page nos. 17 of the paper book), PW-2 (examination-in- chief at page no. 40 of the paper book) and PW-3 (examination-in-chief at page no. 48 of the paper book). 33. It has been further submitted that during cross-examination also, no material contradiction in the testimony of the said prosecution witnesses could be elicited by the defence during trial. Minor variation in the narration of the facts in the oral testimonies of a few prosecution witnesses namely PW-2 (cross-examination at page no. 48 of the paper book). 33. It has been further submitted that during cross-examination also, no material contradiction in the testimony of the said prosecution witnesses could be elicited by the defence during trial. Minor variation in the narration of the facts in the oral testimonies of a few prosecution witnesses namely PW-2 (cross-examination at page no. 46 of the paper book) makes no serious dent to the prosecution story. PW-1 and PW-3 remained thoroughly intact during their cross-examination also. 34. It has been further submitted that no suggestion has been made to the said prosecution witnesses by the Defence, either in this behalf. 35. It has been further submitted that even if it is assumed that the contraband was not voluntarily handed over by the accused-appellant, even then since the recovery has been made from closed confines of the Hotel Room in which the accused- appellant was present as per his own statement recorded under Section 313 CrPC and as per Section 106 of the Indian Evidence Act, the onus lies upon the accused-appellant to explain the recovery from his possession, which has not been discharged by him in the case in hand. 36. It has been further submitted that Physical evidence of recovered contraband (Ex.1) has been proved by the prosecution witnesses PW-1 & PW-2 by exhibiting the same during trial. During cross-examination, neither any question was put nor any suggestion was made by the defence to such prosecution witnesses as regards change of colour of the contraband. At no place in the testimony of the said witnesses, as available in the paper book, any mention has been made in this behalf. 37. The chemical examination report (Ext.Ka.10) is admissible in evidence under Section 293 CrPC, which has been proved by PW-1 (examination-in-chief at page no.22 of the paper book) and PW-2 (examination-in-chief at page no.42 of the paper book) also. As per chemical examination report, the recovered contraband was heroin. During the trial proceedings, the defence did not seek to summon the author of the chemical examination report and question him as regards the change of colour of the contraband. 38. The accused-appellant has also not questioned the chain of safe custody of the contraband in any manner. As per chemical examination report, the recovered contraband was heroin. During the trial proceedings, the defence did not seek to summon the author of the chemical examination report and question him as regards the change of colour of the contraband. 38. The accused-appellant has also not questioned the chain of safe custody of the contraband in any manner. Complete chain of safe custody of the contraband right from the stage of seizure till production in the court during trial has been duly established by the prosecution witnesses i.e. PW-1 in his oral testimony (examination-in-chief at page no. 21 of the paper book) and PW-5 (examination-in-chief at page no. 54 of the paper book). 39. It has been further submitted that the provisions of Section 52-A NDPS Act, in the manner as projected by the counsel for the accused-appellant, would not get attracted while drawing samples at the time of seizure of the contraband. The sampling for the purposes of chemical examination of the contraband was done in accordance with the procedure as prescribed in Standing Instructions No.1/88, as prevalent at the time of recovery. 40. The requirement, as prescribed in Section 52-A(2) of NDPS Act, with regard to drawing of samples or making inventory of recovered contraband or taking photographs of the contraband and issuance of certificate to the same effect by the Magistrate concerned will get attracted only for the purposes of disposal of the contraband. After the physical evidence is disposed of and not produced as primary physical evidence, as per Section 52-A(4). The said compliance as provided in Section 52-A (2) may serve as primary evidence. 41. He has relied on the paragraphs 33 and 38 to 43 of judgment of Hon’ble Supreme Court passed in the case of Bharat Aambale Vs State of Chhattisgarh: 2025 SCC OnLine SC 110 : (2025) 8 SCC 452 . 42. He has further submitted that in the present case, the primary evidence recovered contraband (Heroin) in physical form was produced before the Court during trial and proved by the prosecution witnesses namely PW-1 (examination-in-chief at page no. 36 of the paper book) and PW-2 (examination-in-chief at page no. 43 of the paper book). Hence, there is no occasion for compliance of Section 52-A of NDPS Act. 43. 36 of the paper book) and PW-2 (examination-in-chief at page no. 43 of the paper book). Hence, there is no occasion for compliance of Section 52-A of NDPS Act. 43. He has lastly submitted that the judgment and order under appeal requires no interference by this Court and the appeal preferred by the accused-appellant deserves to be dismissed. 44. I have heard learned counsel for the contesting parties and have perused the records. 45. It would be apt to discuss first the judgments relied upon by learned counsel for the parties. 46. In Paragraph 66 of the judgment passed in the case of Ranjan Kumar Chadha (Supra), the Hon’ble Supreme Court has delineated ten requirements envisaged by Section 50 of NDPS Act. Hon’ble Supreme Court has observed that Section 50 is a mandatory provision, which is a right of the person as well as obligation for the prosecution. Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate. While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the Raiding Party. 47. Relevant extract of the report is as under :- “66. From the aforesaid discussion, the requirements envisaged by Section 50 can be summarised as follows:— (i) Section 50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer. (iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate. (iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party. (v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of Section 50. (vi) Where the right under Section 50 has been exercised, it is the choice of the police officer to decide whether to take the suspect before a Gazetted Officer or Magistrate but an endeavour should be made to take him before the nearest Magistrate. (vii) Section 50 is applicable only in case of search of person of the suspect under the provisions of the NDPS Act, and would have no application where a search was conducted under any other statute in respect of any offence. (viii) Where during a search under any statute other than the NDPS Act, a contraband under the NDPS Act also happens to be recovered, the provisions relating to the NDPS Act shall forthwith start applying, although in such a situation Section 50 may not be required to be complied for the reason that search had already been conducted. (ix) The burden is on the prosecution to establish that the obligation imposed by Section 50 was duly complied with before the search was conducted. (x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. (x) Any incriminating contraband, possession of which is punishable under the NDPS Act and recovered in violation of Section 50 would be inadmissible and cannot be relied upon in the trial by the prosecution, however, it will not vitiate the trial in respect of the same. Any other article that has been recovered may be relied upon in any other independent proceedings.” 48. In Ranjan Kumar Chadha (Supra), it is held that Section 50 would not apply if nothing incriminating is recovered from the person of the accused. In the same judgment, Hon’ble Supreme Court has drawn distinction where it is held that upon conducting the search of the bag, opium was recovered and the Court acknowledged the divergent views and noted that the decision of SK. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal, (2018) 9 SCC 708 was not considered while deciding State of Punjab Vs. Baljinder Singh (2019) 10 SCC 473 . In the case of Kallu Khan v. State of Rajasthan, 2021 SCC OnLine SC 1223, wherein the search and seizure was made from the accused's motorcycle. The Court while holding that the search cannot be said to be vitiated on account of non-compliance of Section 50 as the same only applies to a search of a person. 49. Relevant paragraphs relied upon by learned counsel for CBN are quoted herein-under:- 110 . However, it is pertinent to note that although P awan Kuma r (supra) has been referred to and considered in S K. Raju (supra) yet , the Court in S K. Raju (supra) overlooked the fact that in P awan Kumar (supra) also the search was not only of the person of the accused but also of his bag. Even in such circumstances, the larger Bench in Pawan Kuma r (supra) took the view that Section 50 would not apply i f nothing incriminating is recovered from the person of the accused. Thus, there is an apparent conflict between the two decisions. Section 50 not applicable when recovery made from bag, conveyance, etc. 111. A three-Judge Bench in the State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 considered the question:— “8. Thus, there is an apparent conflict between the two decisions. Section 50 not applicable when recovery made from bag, conveyance, etc. 111. A three-Judge Bench in the State of Punjab v. Baljinder Singh, (2019) 10 SCC 473 considered the question:— “8. … If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently; would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle?” 112. In the aforesaid case, poppy husk was recovered from the accused's vehicle. This Court, while explaining the object of Section 50 and relying on the Constitution Bench judgment in Vijaysinh Chandubha Jadeja (supra), held that:— “10. Section 50 of the Act affords protection to a person in matters concerning “personal search” and stipulates various safeguards. It is only upon fulfilment of and strict adherence to said requirements that the contraband recovered pursuant to “personal search” of a person can be relied upon as a circumstance against the person. Xxx 12. Subsequently, another Constitution Bench of this Court in Vijaysinh Chandubha Jadeja v. State of Gujarat, had an occasion to consider the case from the standpoint whether the person who is about to be searched ought to be informed of his right that he could be searched in the presence of a gazetted officer or a Magistrate. While considering the said question, this Court also dealt with the judgment rendered in Baldev Singh's case and the discussion in paragraphs 24 and 29 was as under: “24. While considering the said question, this Court also dealt with the judgment rendered in Baldev Singh's case and the discussion in paragraphs 24 and 29 was as under: “24. Although the Constitution Bench in Baldev Singh case [ (1999) 6 SCC 172 ] did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to “inform” the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. Xxx 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.” (Emphasis supplied) 113. The Court went on to hold that Section 50 would be applicable only to the personal searches and not to the searches of vehicles or bags. This was in line with the ratio laid down in Pawan Kumar (supra) and Baldev Singh (supra). This Court held that:— “15. As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to “personal search” and not to search of a vehicle or a container or premises. 16. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based “only” on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into. 17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non- compliance of Section 50 of the Act as far as “personal search” was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.” (Emphasis supplied) 114. It is pertinent to note here that in Baljinder Singh (supra) the decision of SK. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.” (Emphasis supplied) 114. It is pertinent to note here that in Baljinder Singh (supra) the decision of SK. Raju (supra) was not looked into, however, the decision in the case of Dilip (supra) was considered and held to be not laying down the correct law on the ground that it did not consider the decision of Baldev Singh (supra). This Court held that:— “18. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh judgments.” (Emphasis supplied) Settling the conflict between SK. Raju and Baljinder Singh 115. The High Court of Delhi in Akhilesh Bharti v. State, 2020 SCC OnLine Del 306 : (2020) 266 DLT 689, had the occasion to look into the cleavage of opinion expressed in Baljinder Singh (supra) and SK. Raju (supra). The High Court therein, noted the thin line of distinction drawn by SK. Raju (supra) where the contraband is recovered from an object which is held by the accused in his hand. In such a situation the High Court held that even if nothing is recovered from the person, Section 50 ought to be complied with. The High Court held as under:— “26. It is essential to observe that vide the verdict of the Hon'ble three Judge Bench of the Hon'ble Supreme Court dated 05.09.2018 in “SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal” (2018) 9 SCC 708 , it has specifically been observed to the effect that where merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act, 1985 will have no application but if the personal search of the accused is also conducted, the provisions of Section 50 of the NDPS Act, 1985 would wholly apply. The verdict of the Hon'ble Supreme Court dated 15.10.2019 in “State of Punjab v. Baljinder Singh” is also a verdict of the Hon'ble three Judge Bench of the Hon'ble Supreme Court in which the personal search of the accused did not result into recovery of any contraband but there was a recovery of contraband effected from the vehicle in which the accused persons were seated with one of them being the driver. Though, the Hon'ble Supreme Court in “State of Punjab v. Baljinder Singh” (supra) has observed to the effect that the judgment of the Hon'ble Supreme Court in Dilip's case is not correct and is opposed to the decision to the law laid down by the Hon'ble Supreme Court in Baldev Singh's judgments, the observations in the verdict of the Hon'ble Supreme Court in “S.K. Raju alia Abdul Haque alias Jagga v. State of West Bengal” (supra) dated 05.09.2018 (which are not adverted to in “State of Punjab v. Baljinder Singh” (supra) dated 15.10.2019) lay down a fine distinction and in these circumstances thus, where the contraband is recovered from an object which is held by an accused in his hand and the search of the person of such an accused is also conducted which lead to no recovery of any contraband, though, there are recoveries of other personal assets of a person from his personal search, in view of the judgments of the Hon'ble Supreme Court in “SK. Raju alia Abdul Haque alias Jagga v. State of West Bengal” (supra), the non compliance of Section 50 of the NDPS Act, 1985 would prima facie vitiate the recovery.” (Emphasis supplied) 116. Akhilesh Bharti (supra) referred to above was considered by a co- ordinate Bench of the Delhi High Court in Kamruddin v. State (NCT of Delhi), 2022 SCC OnLine Del 3761, and held as under:— “23. In the decision of S.K. Raju (supra), the Hon'ble Supreme Court has clearly held that since the search of the person of the appellant therein was also involved, therefore, Section 50 of the NDPS Act would be attracted in that case and accordingly the requirement of Section 50(1) of the NDPS Act was insisted. 24. In the decision of S.K. Raju (supra), the Hon'ble Supreme Court has clearly held that since the search of the person of the appellant therein was also involved, therefore, Section 50 of the NDPS Act would be attracted in that case and accordingly the requirement of Section 50(1) of the NDPS Act was insisted. 24. So far as the decision relied upon by learned APP for the state in the case of State of HP v. Pawan Kumar is concerned, it is to be stated that in paragraph No. 17 of the decision in the case of S.K. Raju (supra) the Hon'ble Supreme Court has taken note of the decision in the case of Pawan Kumar (supra). The distinction between the two situations has been considered and if a bag, article or container etc. being carried by an accused is subjected to search independently without there being any search of the person of the appellant, the decision in the case of Pawan Kumar (supra) would have application. However, in a case where the person of accused is subjected to search along with the search of bag, article or container which he holds in his hand, there is requirement of compliance of Section 50 of the NDPS Act.” (Emphasis supplied) 117. It appears that the Delhi High Court laboured under an erroneous impression that in Pawan Kumar (supra) the search was only of the bag and not of the accused. However, at the cost of repetition, we state that in Pawan Kumar (supra) the search was of both the accused as well as the bag which he was carrying. This is evident from para 2 of the judgment in Pawan Kumar (supra) wherein it has been observed as under:— “2. … A search of the accused and the bag being carried by him was then conducted and 360 gm of opium wrapped in polythene was found inside the bag.…” (Emphasis supplied) 118. In Than Kunwar v. State of Haryana, (2020) 5 SCC 260 , this Court took a different view. In the said case, the personal search of the accused did not lead to any recovery. However, upon conducting the search of the bag, opium was recovered. This Court acknowledged the divergent views and noted that the decision of SK. Raju (supra) was not considered while deciding Baljinder Singh (supra). In the said case, the personal search of the accused did not lead to any recovery. However, upon conducting the search of the bag, opium was recovered. This Court acknowledged the divergent views and noted that the decision of SK. Raju (supra) was not considered while deciding Baljinder Singh (supra). However, the latter was applied and was read to be in line with Baldev Singh (supra). It was held that:— “22. Having regard to the judgment by the three-Judge Bench, which directly dealt with this issue, viz., the correctness of the view in Dilip (supra) reliance placed by the appellant on para 16 may not be available. As already noticed, we are not oblivious of the observation which has been made in the other three-Judge Bench judgment of this Court in SK. Raju (supra), which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (supra). We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (supra). We also notice that this is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required.” (Emphasis supplied) 119. Baljinder Singh (supra) was followed by this Court in Kallu Khan v. State of Rajasthan, 2021 SCC OnLine SC 1223, wherein the search and seizure was made from the accused's motorcycle. This Court while holding that the search cannot be said to be vitiated on account of non-compliance of Section 50 as the same only applies to a search of a person, held as under:— “15. Simultaneously, the arguments advanced by the appellant regarding non-compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this case, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled.” (Emphasis supplied) 120. Similarly, in a recent judgment, this Court in Dayalu Kashyap v. State of Chhattisgarh, (2022) 12 SCC 398 , held that an extended view of Section 50 cannot be given to include a polythene bag containing narcotics being carried by the accused. This Court rejected the argument that as three options were given to the accused to get himself searched from the officer which was in violation of Section 50, the search conducted, even of the polythene bag, ought to be vitiated. It was held as under:— “4. The learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 ], more specifically, SCC para 19. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand [State of Rajasthan v. Parmanand, (2014) 5 SCC 345 ], more specifically, SCC para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 ] to conclude that if a search is made by an empowered officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only on the basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated. 5. In the conspectus of the facts of the case, we find that the recovery was in a polythene bag which was being carried on a kanwad. The recovery was not in person. The learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by the learned counsel for the appellant.” (Emphasis supplied) FINAL ANALYSIS 121. The only idea with which we have referred to the various decisions of this Court starting with Balbir Singh (supra) till Dayalu Kashyap (supra) is to highlight that Section 50 of the NDPS Act has been tried to be interpreted and understood in many ways. As noted earlier, in some of the decisions of this Court, the concept of “inextricably linked to person” was applied. In other words, if the bag, etc. is in immediate possession of the accused and the search is undertaken of such bag, etc., even then, according to those decisions, Section 50 would be applicable. As noted earlier, in some of the decisions of this Court, the concept of “inextricably linked to person” was applied. In other words, if the bag, etc. is in immediate possession of the accused and the search is undertaken of such bag, etc., even then, according to those decisions, Section 50 would be applicable. It could legitimately be argued that the interpretation of Section 50 restricting its scope only to the search of a person of the accused would frustrate the object as the apprehension of the person concerned may continue to subsist that he may still be implicated by the police or any other person for more stringent punishment of carrying commercial quantity by getting rid of the rigor of the mandatory provision of Section 50 by implanting the contraband in a vehicle, bag, etc. accompanying the person. What we are trying to convey has been explained in the case of State v. Klein [See : John C. Derrnbachet.al., A Practical Guide to Legal Writing and Legal Method (1994)]. In the said case, the issue before the U.S. Court was that whether a person can be held guilty for the offence of burglary more particularly when such person did not enter the house per se but tried to steal the object with the help of tree snips. The statute clearly declared that for burglary to happen, the defendant should be physically present. In this case, although the defendant never entered the house, yet he did extend his tree snips through the window. The Court held that, “there is no meaningful difference between the snips and his arm because the penetration by the snips was merely an extension of Klein's person.” Therefore, in the said case, the object which a person was carrying was held to be part of his body. A similar view could also have been adopted while interpreting the term “personal search”. However, in view of plain and unambiguous statutory provision, there is no scope of interpreting Section 50 in any other manner than the interpretation explained in Baldev Singh (supra) and Pawan Kumar (supra).” 50. A similar view could also have been adopted while interpreting the term “personal search”. However, in view of plain and unambiguous statutory provision, there is no scope of interpreting Section 50 in any other manner than the interpretation explained in Baldev Singh (supra) and Pawan Kumar (supra).” 50. Hon’ble Supreme Court in the case of Yusuf (Supra) has held that it is manifest from Section 52 of NDPS Act that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 51. Relevant extract of the report is extracted herein-under :- “13. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. 14.In Mohanlal [Union of Indiav.Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864] case, the Supreme Court while dealing with Section 52-A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 15.In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.” 52. In the case of Arif Khan v. State of Uttarakhand, (2018) 18 SCC 380 : (2019) 3 SCC (Cri) 176, Hon’ble Supreme Court has recorded the finding that a search and recovery made from the appellant of the alleged contraband “charas” does not satisfy the mandatory requirements of Section 50. “23. It is the case of the prosecution and which found acceptance by the two courts below that since the appellant-accused was apprised of his right to be searched in the presence of either a Magistrate or a gazetted officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant- accused gave his consent in writing to be searched by the police officials (raiding party), the two courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act. 24.We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband “charas” does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] . This we say for the following reasons: 24.1.First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer. This we say for the following reasons: 24.1.First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer. 24.2.Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “charas” was not made from the appellant in the presence of any Magistrate or gazetted officer. 24.3.Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “charas” from him, was the gazetted officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer. 24.4.Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a gazetted officer.” 53. In the case Mangilal (Supra), Hon’ble Supreme Court has held that Sub-section (2) of Section 52-A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars and this provision has been inserted in NDPS Act just to provide fair play in the process of investigation. It is mandatory rule, as envisaged in Section 52A of NDPS Act which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken, apart from list of samples drawn. 54. Relevant extract of the report is herein-under :- “5.Sub-section (2) of Section 52-A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the Magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52-A of the NDPS Act, where a certification of a Magistrate is lacking, any inventory, photograph or list of samples would not constitute primary evidence. 6.The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52-A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken, apart from list of samples drawn. 7.In due compliance of Section 52-A(1) of the NDPS Act the Ministry of Finance (Department of Revenue) issued Notification No. G.S.R. 339(E) dated 10-5-2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a certificate of destruction: 4.Manner of disposal.—(1) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, of the Act, or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs or psychotropic substances as per Annexure 1 to this notification and apply to any Magistrate under sub-section (2) of Section 52-A as per Annexure 2 to this notification. (2) After the Magistrate allows the application under sub-section (3) of Section 52-A, the officer mentioned in clause (1) above shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of the drug consignments to the Chairman of the Drug Disposal Committee for a decision by the committee on the disposal. The officer shall send a copy of the details along with the drug consignments to the officer-in-charge of the godown. The officer shall send a copy of the details along with the drug consignments to the officer-in-charge of the godown. *** 4.2.Mode of disposal of drugs.— (i) Opium, morphine, codeine and thebaine shall be disposed of by transferring to the Government Opium and Alkaloid Works under the Chief Controller of Factories. (ii) In case of drugs other than the drugs mentioned in clause (i), the Chief Controller of Factories shall be intimated by the fastest means of communication available, details of drug consignments that are ready for disposal. (iii) The Chief Controller of Factories shall indicate within 15 days of the date of receipt of the communication, the quantities of drugs, if any, that are required by him to supply as samples under Rule 67-B. (iv) Such quantities of drugs, if any, as required by the Chief Controller of Factories under clause (iii) shall be transferred to him and the remaining quantities of drugs shall be destroyed as per the procedure outlined in Para 4.1.2. (v) Destruction shall be by incineration in incinerators fitted with appropriate air pollution control devices, which comply with emission standards. Such incineration may only be done in places where adequate facilities and security arrangements exist. In order to ensure that such incineration may not be a health hazard or polluting, consent of the State Pollution Control Board or Pollution Control Committee, as the case may be, should be obtained. Destruction shall be carried out at the presence of the Members of the Drug Disposal Committee. 4.4.Certificate of destruction.—A certificate of destruction (in triplicate) containing all the relevant data like godown entry number, gross and net weight of the drugs seized, etc. shall be prepared and signed by the Chairman and members of the Drug Disposal Committee as per format at Annexure 3. The original copy shall be pasted in the godown register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Drug Disposal Committee. Details of disposal of drugs shall be reported to the Narcotics Control Bureau in the Monthly Master Reports.” 55. The original copy shall be pasted in the godown register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Drug Disposal Committee. Details of disposal of drugs shall be reported to the Narcotics Control Bureau in the Monthly Master Reports.” 55. Calcutta High Court in the case of Ishdan Seikh v. Union of India, 2022 SCC OnLine Cal 1545 has made observation that a Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance cannot be said to be an independent person. 56. Relevant paras are extracted herein-under :- 14.The next question which arises is whether offer made by NCB officers to the appellants that they have a right to be searched before a Magistrate or a Gazetted Officer or a Gazetted Officer, who is a member of the raiding party is in consonance with the statutory requirements of Section 50 or not. 15. In State of Rajasthan v. Parmanand (supra), negating the argument on behalf of the prosecution that an offer to be searched before the nearest Magistrate or Gazetted Officer or a Gazetted Officer of the raiding party is a valid compliance of Section 50 of the NDPS Act, the Court held as follows:— “19. We also notice that PW10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest Gazetted Officer or before PW5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW5, J.S. Negi by PW10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the Magistrate or the nearest Gazetted Officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW5 J.S. Negi, the Superintendent who was part of the raiding party. PW5 J.S. Negi cannot be called an independent officer. Therefore, it was improper for PW10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW5 J.S. Negi, the Superintendent who was part of the raiding party. PW5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW5 J.S. Negi, the search would have been vitiated or not. But PW10 SI Qureshi could not have given a third opinion to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such opinion would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW10 SI Qureshi is vitiated.” 16.In the present case, the appellants were misled by the incorrect offer given to them that they could be searched by a Gazetted Officer who is a member of the raiding party. A Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance cannot be said to be an independent person before whom the law contemplates a search. In this backdrop, acceptance of the offer by the appellants to be searched before an officer who is a member of the raiding party cannot be said to be a voluntary expression of their desire to be searched before such officer. There is a clear misdirection in law in the offer given to the appellants and accordingly they were misled to agree to a search before an officer who was a member of the raiding party. By no stretch of imagination, such acknowledgment on their part can be said to be a voluntary relinquishment of the right enshrined under Section 50 of the NDPS Act. 17.Crux of the safeguard enshrined in Section 50 of the NDPS Act is that an accused should be made aware of his right to be brought before a Magistrate or a Gazetted Officer prior to a personal search. Such offer may be oral or in writing but the terms of the offer must be clear, unequivocal and not create confusion in the mind of an accused with regard to the lawful requirements prior to the search in any manner whatsoever.” 57. Such offer may be oral or in writing but the terms of the offer must be clear, unequivocal and not create confusion in the mind of an accused with regard to the lawful requirements prior to the search in any manner whatsoever.” 57. Calcutta High Court in the case of Mainul Haque (Supra) has held that Section 50 of NDPS Act is mandatory provision and a person is to be searched by an officer duly authorized under Section 42 of the Act the search must be carried out in the presence of a Gazetted Officer. The Court deprecated this practice that the appellant had produced the contraband when the Raiding Party intercepted the accused along with contraband then the officers could not have been aware that the accused would voluntarily produce the heroin from his possession. 58. Relevant paras are extracted herein-under :- “20. It is crystal clear that the offer letter and acceptance letter of the accused persons were written by the raiding officer. Thereafter search took place. Therefore, compliance of Section 50 is very much required. It cannot be accepted that the accused voluntarily handed over the heroin. Therefore as per Section 50 of the NDPS Act it is mandatory that when a person is to be searched by an officer duly authorised under Section 42 of the Act the search must be carried out in the presence of a gazetted officer of the Central Exise, Narcotics, Customs, Revenue, Intelligence or any other departments of the Central Government including Para Military Forces or Armed Forces as empowered in that behalf or by nearest Magistrate. There are catena of Hon'ble Supreme Court Judgments where it has been held that the provisions of Section 50 of the NDPS Act are mandatory. However, they would be applicable only when the search is carried out of individual. 21. The submission of Mr. Tushar Kanti Mukherjee that a Gazetted Officer or a Magistrate was not required to be present when the appellants were searched because they voluntarily produced the contraband, is untenable. When the raiding party set out to intercept the appellants and to seize the heroin on the receipt of the information, the officers could not have been aware that the appellants would voluntarily produce the heroin from their possession. Obviously therefore, the search was required to be conducted in accordance with Section 50 of the NDPS Act. When the raiding party set out to intercept the appellants and to seize the heroin on the receipt of the information, the officers could not have been aware that the appellants would voluntarily produce the heroin from their possession. Obviously therefore, the search was required to be conducted in accordance with Section 50 of the NDPS Act. A Gazetted Officer or a Magistrate should have been present. P.W.3, a Gazetted Officer of the NCB, accompanied the raiding team. But his presence would not be in compliance of Section 50 of the Act. In the case of State of Rajasthan v. Paramanand reported in (2014) 5 SCC 345 . The communication of the right of a person who is about to be searched under Section 50 of the NDPS Act is not an empty formality. Moreover, the mere presence of a Gazetted Officer in the raiding party would not be sufficient compliance of Section 50 of the Act. The provision under Section 50 of the Act, mandating the presence of either a Gazetted Officer or Magistrate when a body search is conducted, has been incorporated in order to ensure that an independent Gazetted Officer or Magistrate is available so that the raid, the search and the seizure are done in a completely transparent manner and to avoid the possibility of false implication. The evidence on record establishes that there is a breach of Section 50 of the Act in this case.” 59. The case of Dharambir (Supra) is about the non-compliance of Section 50 of NDPS Act. 60. Relevant paras of the report are extracted herein-under:- “43.The law laid down in the above-extracted passages from Arif Khan (supra), needless to say, binds this Court under Article 141of the Constitution of India, inter alia for the reason that the Supreme Court has chosen to rely on the earlier decision, of its own Constitution Bench, in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2007) 1 SCC 433 . 44.It is undisputed, in the present case, that the search of the appellant, and his car, were conducted by the raiding party, and not by the Magistrate or a Gazetted Officer. Neither were the appellant and his car produced before any Magistrate or Gazetted Officer. 44.It is undisputed, in the present case, that the search of the appellant, and his car, were conducted by the raiding party, and not by the Magistrate or a Gazetted Officer. Neither were the appellant and his car produced before any Magistrate or Gazetted Officer. The plea, of the respondent, that, as the appellant had been apprised of his right to have himself, and his car, searched by the Magistrate or a Gazetted Officer, and he had himself agreed to be searched by the raiding party, the mandate of Section 50 stood fulfilled, though attractive, cannot sustain, as an identical plea, raised in similar facts, stands negated in Arif Khan (supra).” 61. Section 52-A has been extensively considered by Hon’ble Supreme Court in the case of Bharat Aambale (Supra), wherein it is held that if there is procedural non-compliance of Section 52-A, it does not necessarily vitiate the trial and the case should be viewed in the context of overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52-A may not be fatal. 62. Hon’ble Supreme Court has gone further to the extent by clarifying the scope and purport of Section 52-A sub-section (4) by observing that sub-section (4) of Section 52-A provides that every court trying an offence under the NDPS Act, shall treat the inventory, photographs and samples of the seized substance that have been certified by the Magistrate as primary evidence. 63. It is further observed that the primary evidence for proving possession will always be the seized substance itself. In order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52-A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence. 64. Relevant paragraphs of the report is extracted herein-under:- 33. 64. Relevant paragraphs of the report is extracted herein-under:- 33. Thus, from above it is clear that the procedure prescribed by the Standing Order(s)/Rules in terms of Section 52-A of the NDPS Act is only intended to guide the officers and to ensure 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 therein. 33.1. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-versa where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52-A or its allied Rules/Orders, nor can a straitjacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. 33.2.Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52-A of the NDPS Act and the Standing Order(s)/Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. XXXXXX 38. Even in cases where there is non-compliance with the procedural requirements of Section 52-A, it does not necessarily vitiate the trial or warrant an automatic acquittal. The courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52-A may not be fatal. The courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52-A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking. 39. At this stage we may clarify the scope and purport of Section 52-A sub-section (4) with a view to obviate any confusion. Sub-section (4) of Section 52-A provides that every court trying an offence under the NDPS Act, shall treat the inventory, photographs and samples of the seized substance that have been certified by the Magistrate as primary evidence. 40. What this provision entails is that, where the seized substance after being forwarded to the officer empowered is inventoried, photographed and thereafter samples are drawn therefrom as per the procedure prescribed under the said provision and the Rules/Standing Order(s), and the same is also duly certified by a Magistrate, then such certified inventory, photographs and samples have to mandatorily be treated as primary evidence. The use of the word “shall” indicates that it would be mandatory for the court to treat the same as primary evidence if twin conditions are fulfilled being: (i) that the inventory, photographs and samples drawn are certified by the Magistrate, AND (ii) that the court is satisfied that the entire process was done in consonance and substantial compliance with the procedure prescribed under the provision and its Rules/Standing Order(s). 41. Even where the bulk quantity of the seized material is not produced before the court or happens to be destroyed or disposed of in contravention of Section 52-A of the NDPS Act, the same would be immaterial and have no bearing on the evidentiary value of any inventory, photographs or samples of such substance that is duly certified by a Magistrate and prepared in terms of the said provision. We say so, because sub-section (4) of Section 52-A was inserted to mitigate the issue of degradation, pilferage or theft of seized substances affecting the very trial. We say so, because sub-section (4) of Section 52-A was inserted to mitigate the issue of degradation, pilferage or theft of seized substances affecting the very trial. It was often seen that, due to prolonged trials, the substance that was seized would deteriorate in quality or completely disappear even before the trial could proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of possession of contraband in the form of inventory, photographs and samples and imbued certain procedural safeguards and supervision through the requirement of certification by a Magistrate, which is now contained in sub-section (4) of Section 52-A. In other words, any inventory, photographs or samples of seized substance that was prepared in substantial compliance of the procedure under Section 52-A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to mandatorily be treated as primary evidence, irrespective of the fact that the bulk quantity has not been produced and allegedly destroyed without any lawful order. 42. Section 52-A sub-section (4) should not be conflated as a rule of evidence in the traditional sense i.e. it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of “Primary Evidence” or “Best Evidence” is now well settled. In order to prove a fact, only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub- section (4) in Section 52-A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence, provided they have been certified by a Magistrate in substantial compliance of the procedure prescribed. This, however, does not mean that where Section 52-A has not been complied, the prosecution would be helpless, and cannot prove the factum of possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery, etc. 43. What Section 52-A sub-section (4) of the NDPS Act does is it creates a new form of primary evidence by way of a deeming fiction which would be on a par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e. through such certified inventory, photographs or samples such that all other materials are said to be excluded from the ambit of “evidence”, rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52-A of the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence.” 65. Now, this Court has to analyze the submissions of the contesting parties. ANALYSIS :- 66. Physical evidence of recovered contraband has been proved by the prosecution witnesses i.e. Seizing Officer Rajdhari Singh/PW-1 and Superintendent S.C. Sarkar/PW-2, which was exhibited before the trial Court. The accused-appellant had not put any question during cross-examination nor any suggestion was made by the defence to prosecution witnesses as regards to change of colour of contraband substance. At no place during cross-examination at the time of testimony of the witnesses there is any mention in this behalf regarding anything to change of colour of contraband substance. 67. The chemical examination is admissible in the evidence under Section 293 Cr.P.C. ,which has been physically proved by Rajdhari Singh/PW-1 and S.C. Sarkar/PW-2 and as per report, the recovered contraband was heroin. 68. 67. The chemical examination is admissible in the evidence under Section 293 Cr.P.C. ,which has been physically proved by Rajdhari Singh/PW-1 and S.C. Sarkar/PW-2 and as per report, the recovered contraband was heroin. 68. It has also born out from the record that during the trial the defence did not seek to summon the author of chemical examination report and to question him as regards to change of the colour of the contraband. 69. The accused-appellant has also not questioned the chain of safe custody of the contraband in any manner. Complete chain of safe custody of the contraband right from the stage of seizure till production in the court during trial has been duly established by the prosecution witness Rajdhari Singh/PW-1 in his oral testimony. 70. In view of the aforesaid discussion, the submission made by learned counsel for the accused-appellant that recovered contraband produced in the Court was different from the one which was allegedly recovered from the accused-appellant is not sustainable and is rejected. 71. The argument has been advanced that there is non-compliance of Section 52-A of the NDPS Act. The said argument would not get attracted while drawing samples at the time of seizure of the contraband. The sampling for the purposes of chemical examination of the contraband was done in accordance with the procedure as prescribed in Standing Instructions No.1/88, as prevalent at the time of recovery. 72. Section 52-A has been extensively considered by Hon’ble Supreme Court in the case of Bharat Aambale (Supra), wherein it is held that if there is procedural non-compliance of Section 52-A, it does not necessarily vitiate the trial and the case should be viewed in the context of overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52-A may not be fatal. 73. Hon’ble Supreme Court has further observed that the primary evidence for proving possession will always be the seized substance itself. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52-A may not be fatal. 73. Hon’ble Supreme Court has further observed that the primary evidence for proving possession will always be the seized substance itself. In order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52-A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence. 74. Thus, the argument of non-compliance of Section 52-A of NDPS Act as advanced by Shri Kunwar Sushant Prakash, learned counsel for the accused-appellant is also not sustainable, in view of the law laid down by Supreme Court in the case of Bharat Aambale (Supra). At the same time, argument of Sri S. M. Singh Royekwar, learned Counsel for the Union of India/Central Bureau of Narcotics is upheld. 75. Now, crucial part of compliance of Section 50 of NDPS Act is to be analyzed by this Court. 76. In the case of Ranjan Kumar Chadha (Supra), it has been has observed that Section 50 is a mandatory provision, which is a right of the person as well as obligation for the prosecution. Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate. While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the Raiding Party. 77. At page 27 of the paper-book, Rajdhari Singh/PW-1 has stated that in the present case he did not obtain warrant from the Magistrate for the reason that a Gazetted Officer was present with him. He further deposed in cross-examination that the Gazetted Officers were always present with him. Therefore, there was no requirement to take any Magistrate. He further deposed before the Court that the accused-appellant was informed that Gazetted Officer was present with Raiding Party. He further deposed in cross-examination that the Gazetted Officers were always present with him. Therefore, there was no requirement to take any Magistrate. He further deposed before the Court that the accused-appellant was informed that Gazetted Officer was present with Raiding Party. When he was asked for search before Gazetted Officer or Magistrate, then the accused- appellant offered for search before Raiding Party. He further deposed that he did not write the fact that the officer was present with him. 78. In the case of Ishdan Seikh (Supra), Calcutta High Court has observed that a Gazetted Officer who had proceeded to the place of occurrence after entertaining reasonable belief that the accused persons may be carrying narcotic substance cannot be said to be an independent person. 79. In the same vein, in the case of Mainul Haque (Supra), Calcutta High Court has held that Section 50 of NDPS Act is mandatory provision and a person is to be searched by an officer duly authorized under Section 42 of NDPS Act and the search must be carried out in the presence of a Gazetted Officer. 80. The statement of S.C. Sarkar/PW-2 at page-38 of the paper- book is relevant and is to be seen in present case where he stated that he introduced himself as Gazetted Officer and told accused-appellant that he was in possession of the heroin. He asked him whether he wished to be searched either before the Magistrate or before the Gazetted Officer, on which he had said that the Raiding Party could search him. 81. Thus, statement of S.C. Sarkar/PW-2 indicates that he was present as a part of Raiding Team. The accused appellant was not told that it was his right to be searched before a Magistrate or a Gazetted Officer other than the one, who is leading the Raiding Party, as such this violates the mandatory provisions of Section 50 of NDPS Act. 82. The NDPS Act requires that accused should be informed about his right in clear terms that he has right to be searched in presence of a Gazetted Officer other than one who is accompanying the Raiding Party. 83. Shri S.M. Singh Royekwar, learned counsel for Union of India has made argument that contraband was picked out by the accused-appellant from his pant and the same was handed over to the Raiding Party. 83. Shri S.M. Singh Royekwar, learned counsel for Union of India has made argument that contraband was picked out by the accused-appellant from his pant and the same was handed over to the Raiding Party. It is not a case where body search was to be done since he had handed over the contraband substance himself, therefore, there is no need of compliance of Section 50 of NDPS Act. 84. This argument cannot be sustained for various reasons. The cross-examination of Rajdhari Singh/PW-1 at page-15 of the paper book indicates that the accused-appellant was firstly searched by Raiding Party and thereafter, the room was searched. After search of his body, he had handed over the contraband substance to Rajdhari Singh/PW-1, which is deposed at page-17 of the paper-book. Similarly, S.C. Sarkar/PW-2, the Gazetted Officer who was present has also deposed before the Court during cross- examination that he had given options to the accused-appellant whether he wanted to be searched before a Gazetted Officer, he told that he may be searched by him also because he was a Gazetted Officer. S.C. Sarkar/PW-2 has further deposed that the contraband substance was recovered from the right pocket of the pant of the accused-appellant. 85. Harishankar Agnihotri/PW-3, who was Manager of Hotel at relevant point of time, has also deposed before the Court that Raiding Party entered into the room of the accused-appellant and the Raiding Party asked the name of the accused-appellant and the accused-appellant was searched by the Raiding Party and the contraband substance was recovered from the pant of the accused-appellant. 86. Para 6 of the complaint filed by the Investigating Officer further goes to indicate that there was suspicion of having illegal contraband substance in possession of accused-appellant and Islam alias Farukh that is why they were searched. Further, para 9 of the complaint indicates that the accused-appellant had handed over the contraband substance to the Raiding Party. The complaint also indicates that firstly the search procedure of the accused-appellant was adopted and thereafter, the recovery was made. 87. Further, para 9 of the complaint indicates that the accused-appellant had handed over the contraband substance to the Raiding Party. The complaint also indicates that firstly the search procedure of the accused-appellant was adopted and thereafter, the recovery was made. 87. Once the search is to be made then, certainly Section 50 of NDPS Act has to be complied with, but, after going through the statements of PW-1, PW-2 and PW-3, the version of complaint, it is apparent that the search of the body of the accused-appellant was made first and thereafter, the recovery of contraband substance was made from his possession. There is non- compliance of Section 50 of NDPS Act, which has been deprecated by Hon’ble Supreme Court in the case of Ranjan Kumar Chadha (Supra) and Arif Khan (Supra) as well as by Calcutta High Court in the cases of Mainul Haque (Supra) and Ishdan Seikh (Supra). 88. This Court finds substance in the argument of Shri Kunwar Sushant Prakash, learned counsel for the accused-appellant regarding non-compliance of Section 50 of NDPS Act. 89. In view of aforesaid reason, the conviction and sentence of the appellant-accused deserves to be set-aside. 90. Accordingly, the appeal is allowed and the impugned judgment dated 28.05.1998 passed by the trial Court in Criminal Case No. 85 of 1995 is hereby set-aside. The appellant is acquitted of charges under Sections 8/21 of NDPS Act. 91. The appellant – Vinai Kumar Sharma is in jail since 08.04.2025 and as per custody certificate sent by Superintendent, District Jail, Lucknow, he was in jail for 06 years, 03 months and 10 days and as on date of judgment, the period in jail comes to 06 years, 11 months and 24 days. A release order will be issued by the trial Court in pursuance of the present judgment immediately, to secure his release from jail custody, if he is not wanted in any other case. 92. Appellant is directed to furnish a personal bond and two sureties in each like amount to the satisfaction of the trial Court within two weeks of actual release from jail in terms of Section 437-A CrPC with undertaking to appear before appellate court as and when appeal is filed against this judgment and he is required to appear before the court. 93. 93. Office/Registry is directed to send the copy of this judgment for necessary compliance along with trial Court record to the court concerned forthwith. 94. The trial Court to send compliance report within four weeks. 95. A copy of this judgment be also sent to Senior Superintendent, District jail, Lucknow forthwith. 96. The Court keeps record the assistance rendered by Mr. Ankur Garg, Research Associate of this Court.