JUDGMENT : Tarlok Singh Chauhan, J. Aggrieved by the acquittal of the respondent for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short, “the Act”), the appellant-State has filed the instant appeal. 2. Briefly stated, case of the prosecution is that on 3.3.2010, in the evening, a police party, headed by PW9 Head Constable Chaman Lal (Investigating Officer) comprising of PW1 Head Constable Paras Ram and HHC Chet Ram was present at Check Post Bajaura where Head Constable Purshotam (PW-2), HHC Bahadur Singh, HHC Tek and Head Constable Rakesh Kumar were already present for patrolling duty and a dog squad was also with them. At around 8:30 P.M. a bus bearing registration No. PB-02-BF 9841 came from Bhuntar side, which was signalled for stoppage by PW-9 and other police officials and accordingly the said bus was stopped there. The rear door of the bus was found locked from inside and thereafter PW9 Head Constable Chaman Lal alongwith PW1 Head Constable Paras Ram and PW2 Head Constable Purshotam Ram boarded the bus from the front door and asked the names of driver and conductor of the bus, who, in turn, disclosed their names to be PW11 Baldev Singh driver and PW10 Anup Singh conductor. The police party associated PW10 and PW11 as witnesses and started searching the bus from driver side. On seeing the police party, the respondent, who was found sitting on seat No. 27 in the bus, got perplexed. The Investigating Officer suspected the respondent to have some contraband in his possession and accordingly, the respondent was asked about his name, who disclosed his name to be Sher Singh. Thereafter the respondent was given option to be searched either before a Gazetted Officer or a Magistrate vide memo Ex.PW-2/A and the respondent consented to be searched by the police officials. Thereafter PW9 Head Constable Chaman Lal gave his personal search to the respondent inside the bus vide memo Ex.PW-2/B. At the time of personal search of the respondent and his luggage, a polythene bag was recovered from right pocket of the jeans of the respondent. On being opened, polythene bag was found to be containing black colour substance (charas). The recovered charas was weighed with electronic scale outside the bus and its weight was found to be 100 grams. On being opened, polythene bag was found to be containing black colour substance (charas). The recovered charas was weighed with electronic scale outside the bus and its weight was found to be 100 grams. The recovered contraband was again put inside the said polythene bag and other codal formalities qua sealing and seizure of the case property were done. 3. The investigating Officer also filled-in relevant columns of NCB-1 form on the spot and sample seal was obtained on piece of cloth, Ex.PW-2/C as well as on NCB-1 form Ex.PW-3/C and the case property was taken into possession vide memo Ex.PW-2/D. Thereafter the Investigating Officer prepared rukka Ex.PW-1/A and sent the same to Police Station through PW1 Head Constable Paras Ram for registration of case. The respondent was arrested vide memo Ex.PW-2/F and his personal search was conducted vide memo Ex.PW-2/E. 4. The case was further investigated by PW9 Head Constable Chaman Lal, who prepared spot map Ex.PW-9/A and recorded statements of witnesses under Section 161 Cr.P.C. Formal FIR Ex.PW-7/B, on the basis of rukka, came to be registered by PW7 Sub-Inspector Krishan Chand and on reaching the Police Station the Investigating Officer produced the case property, i.e., sealed parcel Ex.PA containing polythene bag Ext. PB and contraband, Ex. PC. before the then Station House Officer PW7 Sub-Inspector Krishan Chand. He resealed the parcel with four seals of 'T' and after obtaining sample of seal on separate piece of cloth Ex.PW-7/C as well as NCB-1 form handed over the case property alongwith samples of seals, NCB-1 form and other relevant papers to the then MHC PW3 Kartar Singh with the direction to deposit the same in the Malkhana and to send the same to SFSL Junga for chemical analysis. PW3, after making entry in the relevant register, Ex.PW-3/A, sent the case property alongwith NCB-1 form, sample of seals 'K' and 'T' and other relevant papers including docket Ex. PW-7/D through PW8 HHC Padam Singh for depositing the same at SFSL Junga vide RC No. 28/2010, vide Ex.PW-3/B. PW8 HHC Padam Singh, after depositing the case property at SFSL Junga, handed over the receipt to the MHC. The investigating Officer handed over special report Ex. PW-5/A to the then Dy. S.P. Nihal Chand, who after making endorsement thereon, Ex.PW-5/B handed over the same to his Reader PW-5 ASI Harbans Kumar, who, in turn, made entry in the relevant register, Ex.PW-5/C. 5. The investigating Officer handed over special report Ex. PW-5/A to the then Dy. S.P. Nihal Chand, who after making endorsement thereon, Ex.PW-5/B handed over the same to his Reader PW-5 ASI Harbans Kumar, who, in turn, made entry in the relevant register, Ex.PW-5/C. 5. After obtaining SFSL report Ex.PW-6/A and on completion of investigation, the challan was prepared and presented in the court and the respondent was produced to face trial. 6. Upon consideration of the challan and other documents annexed therewith, the court found prima facie case against the respondent and accordingly, charge for the commission of offence punishable under Section 20 of the Act was framed against him, to which he pleaded not guilty and claimed trial. 7. In order to prove its case, the prosecution examined as many as 11 witnesses and closed its evidence. 8. Thereafter, the respondent was examined under Section 313 Cr.P.C. in which he denied all set of incriminating evidence led by the prosecution against him and claimed himself to be innocent and falsely implicated. However, the respondent did not lead any evidence. 9. The learned Special Judge after recording the evidence and evaluating the same acquitted the respondent as aforesaid, constraining the State to file the instant appeal. 10. It is vehemently argued by learned Advocate General that the findings recorded by the learned court below are totally perverse, especially with regard to non-compliance of Section 50 of the Act, which in the given facts and circumstances was neither applicable nor attracted. 11. On the other hand, Ms. Manjeet Banga, learned vice counsel for the respondent would support the impugned judgment. 12. At this stage, it needs to be observed that even though the prosecution would claim that it is a case of chance recovery, but the documents speak otherwise and prove on record that it was a case of prior information. 13. It is the case of the prosecution that prior to conducting search of the respondent, PW9 Investigating Officer had given his personal search to the respondent, but strangely enough, the memo of search clearly mentions Section 20 of the Act. 14. 13. It is the case of the prosecution that prior to conducting search of the respondent, PW9 Investigating Officer had given his personal search to the respondent, but strangely enough, the memo of search clearly mentions Section 20 of the Act. 14. What makes things worse for the prosecution is that in the memo issued to the respondent in purported compliance to Section 50 of the Act not only the memo was served upon him for offence punishable under Section 20 of the Act, but also memo of consent was in fact issued under Section 50 of the Act and the memo further discloses that the consent had been obtained only because Investigating Officer suspected the respondent to be in possession of some narcotic substance. 15. Thus, it is clearly established that the Investigating Officer had prior information regarding the respondent to be in alleged possession of a substance punishable under Section 20 of the Act or else he would not have resorted to the action, as stated above. 16. Once it is a case of prior information, then the prosecution was required to comply with the mandatory provisions of the Act in its letter and spirit, more especially Section 42 of the Act. 17. It would be pertinent to refer to Section 42 of the Act, which reads as under:- “42. 16. Once it is a case of prior information, then the prosecution was required to comply with the mandatory provisions of the Act in its letter and spirit, more especially Section 42 of the Act. 17. It would be pertinent to refer to Section 42 of the Act, which reads as under:- “42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy- two hours send a copy thereof to his immediate official superior.] 18. Thus, a close perusal of Section 42 of the NDPS Act would reveal that if any such officer has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, conveyance or enclosed place, he may enter into and search any such building, conveyance or place between sunrise and sunset and shall within seventy-two hours send a copy of the information/ grounds of his belief to his immediate superior officer. Further if such officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and he shall within seventy-two hours send a copy thereof to his immediate superior official. 19. Hon'ble Supreme Court in a catena of decisions held that violation of Section 42 of the Act vitiates the entire trial. In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 , a Constitution Bench of the Hon'ble Supreme Court considered Sections 42 and 50 of the Act. Paragraphs 1, 2 and 35 of the above judgment read as under: "1. In Abdul Rahsid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513 , a three-Judge Bench of this Court held that compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692 , which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692 , which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. 2 In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. 35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: [a] The Officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). [b] But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. [c] In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. [d] While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 20. In Boota Singh & others vs. State of Haryana, (2021) 19 Supreme Court Cases 606, the Hon’ble Supreme Court has held as under: “15. It is an admitted position that there was total non- compliance of the requirements of Section 42 of the NDPS Act. 16. The decision of this Court in Karnail Singh ( Karnail Singh v. State of Haryana , (2009) 8 SCC 539 ) as followed in Jagraj Singh (State of Rajasthan v. Jagraj Singh, (2016) 11 SCC 687 ), is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigors of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.” 21. Total non-compliance of Section 42 is impermissible. The rigors of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.” 21. In Najmunisha vs. State of Gujarat, AIR 2024 Supreme Court 2778, the Hon’ble Supreme Court held that the officer receiving the information regarding the narcotic is bound to record the same and send it to the superior officer and failure to do so will vitiate the trial. The relevant paras of the aforesaid judgments are as under: 31. From the perusal of provision of Section 42(1) of the NDPS Act 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation contemplated by virtue of Section 42(2) of the NDPS Act 1985 was brought about through the Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this position, the Section 42(2) mandated the copy of the said writing to be sent to the immediate official superior “forthwith”. 32. The decision in Karnail Singh (supra) has been extensively referred by the learned Counsel for the Appellants and at the cost of repetition, it is observed that absolute non-compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well- reasoned explanations for such delay. This position adopted by the instant 5-Judges’ Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges’ Bench of this Court. 33. However, any delay in the said compliance may be allowed considering the same is supported by well- reasoned explanations for such delay. This position adopted by the instant 5-Judges’ Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges’ Bench of this Court. 33. Another 3-Judges’ Bench while dealing with compliance of Section 42 of the NDPS Act 1985 in Chhunna alias Mehtab v. State of Madhya Pradesh (2002) 9 SCC 363 dealt with criminal trial wherein there was an explicit non-compliance of the statutory requirements under the NDPS Act 1985. It was held that the trial of the Petitioner-Appellant therein stood vitiated. For a better reference, the judgment is quoted below as: “1. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate. 2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a noncompliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.” 22. Thus, in the aforesaid decisions of the Hon’ble Supreme Court, it has clearly been held that where the empowered officer does not record the information at all and does not inform the official superior at all, then, it is a clear violation of Section 42 of the Act. The punishments provided under the Act are deterrent in nature. The Legislature in its wisdom imposed several safeguards so as to see that the penal provisions of the Act may not be abused. In the instant case, the Investigation Officers did not record the information and also did not inform the official superior(s) at all as such it is a clear violation of Section 42 of the Act. 23. The Legislature in its wisdom imposed several safeguards so as to see that the penal provisions of the Act may not be abused. In the instant case, the Investigation Officers did not record the information and also did not inform the official superior(s) at all as such it is a clear violation of Section 42 of the Act. 23. In addition to above, it was the specific case of the prosecution that the contraband was recovered from the right pocket of the jeans of the respondent and was contained in a polythene bag. 24. In such circumstances, the prosecution was mandatorily required to follow the provisions of Section 50 of the Act. 25. Even though the learned Advocate General would claim that the provisions of Section 50 of the Act have been complied with by affording an opportunity to the respondent to be searched either before a gazetted officer or a gazetted police officer and the respondent had consented to be searched before the police, however, from the entire evidence, which has been placed on record by the prosecution, even taken on its face value, would reveal that the investigating agency has failed to comply with the mandatory provisions of the Act. 26. In the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand (2018) 18 SCC (380 ), Hon'ble Supreme Court has held that it is mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. Further that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. Para Nos.18 to 20 of the aforesaid judgment read as follows: "18. Para Nos.18 to 20 of the aforesaid judgment read as follows: "18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja (supra). 19. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392 )." 27. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392 )." 27. In a recent judgment Ranjan Kumar Chadha vs. State of Himachal Pradesh , AIR 2023 Supreme Court 5164 , the Hon'ble Supreme Court has extensively addressed the scope and object of Section 50 of the Act and laid down the guidelines by holding that search, seizure and recovery of contraband not made in the presence of any Magistrate or Gazetted Officer and non-compliance with the mandatory procedure under Section 50 of NDPS Act,1985 is fatal to the prosecution case. It has been held as under: “33. Ordinarily, it could be said or argued that “to search any person” would mean, to search the articles on the person or body of the person to be searched and would normally not include the articles which are not on the body of the person to be searched. When we are deliberating on the scope and true purport of Section 50 of the NDPS Act, we should bear in mind that the main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized officer. … … … … … … … … … 36. Considering the aforesaid provisions, the inference which can be drawn is that “to search any person” would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of the NDPS Act. In contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50. However, when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed. This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. The concealment which is suspected is on the person or about his person. 64. 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. (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. 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. Any other article that has been recovered may be relied upon in any other independent proceedings.” 28. By applying the aforesaid principles in the case at hand, since there is total violation of mandatory provisions of Section 50 of the Act, the recovery of the alleged contraband stands vitiated. Therefore, we are of the considered view that the view taken by the learned Special Judge while acquitting the respondent is reasonable based on the evidence and the same cannot be said to be either perverse or contrary to the material available on record. 29. In view of the aforesaid discussions and for the reasons stated above, we find no merit in the instant appeal and the same is accordingly dismissed so also the pending application(s), if any.